Patna High Court

Mukesh Ram vs The State Of Bihar on 25 February, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2204 of 2022
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Mukesh Ram son of Sakal Ram Resident of Village- Maheshwara, P.S. and Block- Aurai, District- Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Additional Chief Secretary, Panchayati Department, Government of Bihar, Patna.

3. The State Election Commission (Panchayat), 3rd Floor, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner.

4. The State Election Commissioner, The State Election Commission (Panchayat), 3rd Floor, Sone Bhawan, Birchand Patel Path, Patna.

5. The Secretary, The State Election Commission (Panchayat), 3rd Floor, Sone Bhawan, Birchand Patel Path, Patna.

6. The District Magistrate-cum- District Election Officer (Panchayat) Muzaffarpur, District- Muzaffarpur.

7. The Block Development Officer, -cum- Returning Officer, Panchayat Election, 2021, Gram Panchayat Raj, Maheshwara, Block- Aurai, District- Muzaffarpur.

8. Ram Swarath Ram son of Dhanraj Ram Resident of Village- Maheshwara, P.S. and Block- Aurai, District- Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Rakesh Ranjan, Advocate For the Respondent/s : Mr.Kumar Alok (S.C. 7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 25-02-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

(I) For issuance of an appropriate writ in Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

the nature of MANDAMUS, commanding and

directing the Respondent State Election

Commission to call for the C.C. TV. Footage with

respect to counting of votes for the post of

MUkhiya of Grain Panchayat Raj, Maheshwara

( Territorial Constituency No.26 ) from the

Respondent nos. 6 and pass necessary orders in

exercise of its power under Section 123 of the

Bihar Panchayat Raj Act, 2006 , if after the

scrutiny of C.C. TV. Footage of counting it is

found that no counting in the abovementioned

constituency had taken place in the presence of the

candidates of their Counting Agents, yet the result

of election was declared and certificate of election

was issued in favour of a candidate contesting the

election .

(ii) For a declaration that if the result of

an election has to be declared only after the

counting of votes in the manner prescribed under

the relevant Rules and the instructions issued by

the State Election Commission , any declaration of

result without counting of votes in the manner Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

prescribed is not a declaration in the eye of law

and ,therefore, such declarations of result cannot

he sustained.

(iii) For issuance of an appropriate writ in

the nature of MANDAMUS , commanding and

directing the Respondent State Election

Commission to countermand the election in the

abovementioncd three constituencies , if aftei the

scrutiny of C.0 TV. Footage of the process of

counting , it is found that there was no counting of

votes in the abovementioned three Constituencies

in the presence of the candidates or their Counting

Agents and go for fresh poll in accordance with

law but only after brining suitable amendments

under Bihar Panchayat Election Rules, 2006

regarding appointment of sufficient number of

Counting Agents for keeping watch on the process

of counting proportionate to the Counting Tables ,

so declared for counting of votes in a particular

territorial constituency.

(iv) For issuance of an appropriate writ

in the nature of MANDAMUS , commanding and Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

directing the Respondent nos. 1 to 5 to take action

against the erring Officers entrusted with the task

of counting of abovementioned three

constituencies if after scrutiny of TV Footage of

the process of counting , it comes to their light that

the result of election was declared without

counting of votes in presence of the candidates or

their Counting Agents in violation of the

provisions of the Bihar Panchayat Election Rules,

2006 and the detail instructions issued by the State

Election Commission through its Hand Book for

instruction regarding counting, 2021, soft copy

whereof was sent to all the District Election

Officers (Panchayat) -cum-District Magistrate,

Bihar vide letter no. 3285 dated 25.08.2021.

(V) For issuance of any other appropriate

writ/writs, order/orders, direction/directions for

which the writ petitioner would be found entitled

under the facts and circumstances of the case."

Learned counsel for the State opposes the petition

stating that the petition is misconceived; raises disputed

question of fact; is not in public interest; and that the issue can Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

be best resolved at the local level by the appropriate

authorities.

After the matter was heard for some time, finding

the Bench not to be agreeable with the submissions made by

learned counsel for the petitioner, learned counsel for the

petitioner, under instructions, states that petitioner shall be

content if a direction is issued to the authority concerned i.e

(Respondent No. 3, the State Election Commission

(Panchayat), 3rd Floor, Sone Bhawan, Birchand Patel Path,

Patna through the State Election Commissioner) to consider

and decide the representation which the petitioner shall be

filing within a period of four weeks from today for redressal of

the grievance(s).

Learned counsel for the respondents states that if such

a representation is filed by the petitioner, the authority

concerned shall consider and dispose it of expeditiously and

preferably within a period of four months from the date of its

filing along with a copy of this order.

Statement accepted and taken on record.

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus Patna High Court CWJC No.2204 of 2022 dt.25-02-2022

desires to enforce, and that that demand was met by a refusal.'

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

As such, petition stands disposed of in the following

terms:-

(a) Petitioner shall approach the authority concerned

within a period of four weeks from today by filing a

representation for redressal of the grievance(s);

(b) The authority concerned shall consider and dispose

it of expeditiously by a reasoned and speaking order preferably

within a period of four months from the date of its filing along

with a copy of this order;

representation, principles of natural justice shall be followed

and due opportunity of hearing afforded to the parties;

(d) Equally, liberty is reserved to the petitioner to take