Patna High Court

Sainik Industries Pvt. Ltd. (Name ... vs The State Of Bihar on 9 May, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.4650 of 2022
     ======================================================

Sainik Industries Pvt. Ltd. (name changed as Sainik Foods Pvt. Ltd. with effect from 25.06.2019) a registered company having its registered office at Flat No. 201 and 202, Vikas Plaza, Building No. 2, Local Shopping Centre, Kalkaji, New Delhi (South)-110019 through its authorized representative Sanjeeva Kumar Mishra male aged about 53 years son of Narayan Mishra, resident of Village-Bazidpur, Meyari, P.O. Bazidpur, Ward No. 11, Samastipur, Bihar-848114.

... ... Petitioner/s Versus

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

2. The Additional Chief Secretary, Department of Prohibition, Excise and Revenue, Government of Bihar, Patna.

3. The District Collector, Nawada.

4. The District Sub-Registrar, Nawada.

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

For the Petitioner/s : Mr.Gautam Kumar Kejriwal, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 ====================================================== 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 a writ or order or a direction upon the respondents to refund the bank guarantee number 087GT01173520001 dated 18.12.2017 for Rs. 1,29,20,000/-(against part of the stamp duty) by the petitioner and also the stamp duty and registration charges of Rs. 6,84,000/- paid by the petitioner for registration of the mining lease deed which settlement did not fructify due to illegal mining carried out by local mafias at the mining site and the Department of mines Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

and geology, government of Bihar has already refunded the security deposit and instalments deposited by the petitioner against such settlement;

(b) For holding and a declaration that once the settlement of mines in favour of the petitioner could not fructify and got frustrated at the very inception, no liability of payment of stamp duty and registration fee against such lease deed would arise the purpose of which itself ceased to exist before its commencement.

(c) For further holding and a declaration that once the state of Bihar could not arrange to deliver the mining sites to the petitioner in accordance with the mining lease deed executed and accepted the frustration thereof, the petitioner cannot be held liable to account for the statutory expense of stamp duty and registration charges against such lease deed;

(d) For grant of any other relief or reliefs to which the petitioner is found entitled to 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 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 Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

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 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 Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

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. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24- Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

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 District Collector,

Nawada, within a period of four weeks from today

by filing a fresh representation for redressal of the Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

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;

(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;

(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 Patna High Court CWJC No.4650 of 2022 dt.09-05-2022

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.