Patna High Court

M/S- B.H. Catering Services vs The Union Of India on 30 January, 2023

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Civil Writ Jurisdiction Case No.17494 of 2022
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M/s- B.H. Catering Services, Proprietor Hani Khatoon, Female, w/o Md. Bablu, aged about 40 years, resident of at Isopur, Phulwari Sharif, District- Patna (Bihar)- 801505.

... ... Petitioner/s Versus

1. The Union of India Ministry of Railways (Railway Board) through its Chairman, Rail Bhawan, 1, Raisina Road, New Delhi- 110001.

2. The General Manager, East Central Railway, Hajipur, P.O.- Diggi Kala, P.S.-

Hajipur, District- Vaishali.

3. The Divisional Commercial Manager, East Central Railway, Mughalsarai.

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

For the Petitioner/s : Mr. Uday Prasad Singh, Advocate For the Respondent/s : Mr. Awadhesh Kumar Pandey, Sr. C.G.C.

Mr. Lokesh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 30-01-2023

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

"That the petitioner is preferring this instant writ petition under Article 226 of the Constitution of India for enforcement of their Fundamental Rights enshrined under Article 14, 19[1][g] and Patna High Court CWJC No.17494 of 2022 dt.30-01-2023

21 of the Constitution of India by challenging the letter dated 13.10.2021 issued by the Respondent no.3 vide which the Respondent imposed an arbitrarily excessive license fee and also imposed an escalation fees of 10% despite the Respondent No.1 having an established and continuing policy for providing relaxation in license fees due to the effects of the Covid-19 pandemic."

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

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) Patna High Court CWJC No.17494 of 2022 dt.30-01-2023

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 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 Patna High Court CWJC No.17494 of 2022 dt.30-01-2023

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 24-25)

"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 Patna High Court CWJC No.17494 of 2022 dt.30-01-2023

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 as withdrawn

with the following directions/observations/liberty:-

(a) Petitioner shall approach the authority concerned

i.e. Respondent No. 3, namely, The Divisional

Commercial Manager, East Central Railway,

Mughalsarai within a period of four weeks from

today by filing a representation for redressal of the

grievance(s);

(b) The said authority 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;

Patna High Court CWJC No.17494 of 2022 dt.30-01-2023

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