Patna High Court

Subhash Chandra Tiwari vs The State Of Bihar on 9 May, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.4746 of 2022
     ======================================================

Subhash Chandra Tiwari, son of Raj Kishor Tiwari resident of Janki Asthan, Ward No. 02, near Janki Asthan Talab, Bhabdepur, Sitamarhi Bazar, P.S. Sitamarhi, District Sitamarhi (Bihar) PIN- 843302, Director of Shivdani Roadways Infrastr. Pvt. Ltd. at Dighikala, Hajipur, District- Vaishali (Bihar).

... ... Petitioner/s Versus

1. The State of Bihar through the Secretary, Department of Transport, Government of Bihar, Bishwashraiya Bhawan, Bailey Road, Patna.

2. The State Transport Authority, Bihar through its Secretary, Bishwashraiya Bhawan, Bailey Road, Patna.

3. The State Transport Commissioner, Department of Transport, Government of Bihar, Bishwashraiya Bhawan, Bailey Road, Patna.

4. The Regional Transport Authority, Muzaffarpur through its Chairman.

5. Bihar State Road Transport Corporation, through its Administrator, Sultan Palace, Birchand Patel Path, Patna.

6. The District Magistrate, West Champaran, Bettiah.

7. The District Transport Officer, Bettiah (West Champaran).

8. The Senior Superintendent of Police, West Champaran, Bettiah.

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

For the Petitioner/s : Mr.Ramadhar Shekhar, Advocate For the Respondent/s : Mr. Sarvesh Kumar, GP 24 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 09-05-2022

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

"(a) For issuance of an appropriate writ/writs, order/orders or direction/directions, particularly in the nature of writ of Mandamus, commanding and directing the respondents to dispose of the representation dated Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

24.12.2021 filed by the petitioner before Transport Commissioner, Bihar, Patna District Magistrate, Bettiah, Senior Superintendent of Police, Bettiah, R.T.A. Muzaffarpur and District Transport Officer, Bettiah praying therein to immediately stop the illegal operation of the bus on the route of Bettiah/Bagaha to Gorakhpur, which have been illegally operating the bus continuously without any permit, putting great loss to the valid permit holder like the petitioner and also put loss to the government exchequer, because the petitioner had filed application before the aforesaid respondents concerned, who did not take any action to stop the illegal operation of bus on the route in permit i.e. Bettiah/Bagaha to Gorakhpur, which lies on the petitioner's permit bearing permit no. BR-2021/SC-2496A valid for the period 28.10.2021 to 27.10.2028 for the route Bagaha to Gorakhpur via Chhitaunighat, Kaptanganj granted and issued by the State Transport Authority, Bihar, Patna;And/or pass any such and further order as Your Lordships may deem fit and proper in the facts and circumstances of the case.

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 to consider and decide the

representation which the petitioner shall be filing afresh 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 Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

concerned shall consider and dispose it of expeditiously and

preferably within a period of three 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 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 Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

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 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. Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

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 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 on the following

terms:-

(a) Petitioner shall approach the authority concerned i.e.

Respondent No. 3, namely, The State Transport

Commissioner, Department of Transport, Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

Government of Bihar, Bishwashraiya Bhawan,

Bailey Road, Patna, within a period of four weeks

from today by filing a fresh 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 three months from the

date of its filing along with a copy of this order;

(c) The order assigning reasons shall be communicated

to the petitioner;

(d) Needless to add, while considering such

representation, principles of natural justice shall be

followed and due opportunity of hearing afforded to

the parties;

(e) Also, opportunity to place on record all relevant

materials/documents shall be granted to the parties;

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

recourse to such alternative remedies as are

otherwise available in accordance with law;

(g) We are hopeful that as and when petitioner takes

recourse to such remedies, as are otherwise available

in law, before the appropriate forum, the same shall

be dealt with, in accordance with law and with

reasonable dispatch;

Patna High Court CWJC No.4746 of 2022 dt.09-05-2022

(h) Liberty reserved to the petitioner to approach the

appropriate forum/Court, should the need so arise

subsequently on the same and subsequent cause of

action;

(i) We have not expressed any opinion on merits. All

issues are left open;

(j) The proceedings, during the time of current

Pandemic- Covid-19 shall be conducted through

digital mode, unless the parties otherwise mutually

agree to meet in person i.e. physical mode;

The petition stands disposed of in the aforesaid

terms.