BABY SINHA Vs. STATE OF BIHAR
LAWS(PAT)-2022-1-10
HIGH COURT OF PATNA
Decided on January 10,2022

Baby Sinha Appellant
VERSUS
STATE OF BIHAR Respondents




JUDGEMENT

S.KUMAR,J. - (1.) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.) Heard learned counsel for the parties. Petitioners have prayed for the following relief(s):- "(i) For a direction upon the Respondents concerned specially Respondent No. 3 to take effective steps for recovery of about 40 Lacs Rupees from the responsible person against Whom after conducting enquiry without executing the work the entire 40 Lacs Rupees have illegally been withdrawn and defalcated but only First Information Report has been instituted bearing Akbarpur Police Station Case No. 326 of 2020 dtd. 22/6/2020 under sec. 420 and 409/120(B) of the Indian Penal Code against responsible persons but despite having directed to get the amount recovered from such person following procedures under Certificate case so that public money which was earmarked for "Nal Jal Yojna" of Ward No. 1 and 3 of Gram Panchayat Raj Kulna under Block- Akbarpur, District- Nawadah may be utilised and in absence of entire residents of Ward No. 1 and 3 are still deprived of the basic needs of clean drinking water. (ii) For a further direction upon the concerned Respondents specially Respondent No. 5 to look into and take appropriate action against the responsible police officials who have put the entire issue in to cold storage and gave a scape to the accused persons to prepare antedated measurement Book showing part of the work and in pretext of further enquiry they are enjoying putting pressure upon witnesses not to open mouth against wrong done in Ward No. 1 and 3 of the concerned Panchayat. (iii) For a further direction upon the Respondent No.3 to fix responsibility upon concerned Respondents take action regard their nexus with responsible person to halt this entire issue under which huge public money has been siphoned off. (iv) Any other order/orders for granting any other relief/reliefs for which the petitioner is found entitled to in the facts and circumstances of the case.
(2.) The Hon'ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka and 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 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 24-25) "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."
(3.) After the matter was heard for some time, 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 District Magistrate, Nawadah) 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).;


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