Shiv Prakash Rai v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9458 of 2021 ====================================================== Shiv Prakash Rai S/o Late Nageshwar Rai Resident of Dhobi Ghat, Gali No.- 2, Charitravan, P.S.-Buxar, District-Buxar.
... ... Petitioner/s
Versus
1.
The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.
The Chief Secretary, Govt. of Bihar, Patna.
3.
The Additional Chief Secretary, Department of Finance, Govt. of Bihar, Patna.
4.
The Additional Chief Secretary, Department of General Administration, Govt. of Bihar, Patna.
5.
The Bihar State Information Commission through its Secretary, Soochana Bhawan, Jawaharlal Nehru Marg, Patna.
6.
The Secretary, Bihar State Information Commission, Soochana Bhawan, Jawaharlal Nehru Marg, Patna.
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Madhu Prasun, Advocate Mr. Pratyush Kumar, Advocate For the Respondent/s :
Ms. Binita Singh, Advocate Mr. Ajay Kumar Rastogi, (AAG-10) ====================================================== 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 : 27-07-2021 Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s). "(i) For issuance of appropriate Writ / Writs. Order Orders. Direction / Directions commanding the Respondents to ensure proper investigation / enquiry in a time hound manner in the matter or several serious irregularities / illegalities including financial irregularities / illegalities as pointed out in the audit of the Auditor General of Bihar (till up-todate) with regard to Bihar State Information Commission and subsequently fix appropriate /
2/8 adequate liabilities on the concerned respondents / authorities, if found guilty.
(ii) FOR issuance of appropriate Writ / Writs, Order Orders. Direction / Directions commanding the Respondents concerned to ensure functioning and proper maintenance of website of the Bihar State Information Commission which was not working since the year 2017 (working from a few days only) although about 50% of the fund allotted in budget could not be utilized by the Bihar State Information Commission and was surrendered that too against rules and with much delay AND for issuance of further order / orders. direction / directions commanding the Respondents to fix appropriate / adequate liabilities on the guilty respondents authorities. who are responsible for nonfunctioning of the website of Bihar State Information Commission since the year 2017 till recently.
(iii) FOR issuance of appropriate Writ / Writs, Order / Orders, Direction / Directions commanding the Respondents to ensure up-to-date submission of Annual Report as mandated by the statute itself before the Bihar Legislative Assembly stating therein the details of income / expenditure, number of cases filed / disposed etc. in the manner other Central Information Commission and other State Information Commission used to submit with all transparency AND for further order / orders, direction / directions commanding the Respondents concerned to ensure enquiry in the matter as why the statutory annual reports are not being filed in time and up-to-date.
(iv) FOR issuance of appropriate Writ / Writs, Order / Orders, Direction / Directions commanding the Respondents especially Respondents No.- 5 & 6 to not make attempt to scrap the very purpose and objectives of the Right to Information Act, 2005, which attempt is being made in different ways as a standard form of objection list is maintained by the said respondents, whereby objections are being made with a delay of even about one year on second appeals filed that too on merely technical grounds and with other illegalities also.
(v) For issuance of appropriate Writ/Writs,
3/8 Order/Orders, Direction/Directions commanding the Respondents to ensure working of call centre as was established vide circular of the Department of Personnel and Administrative Reforms (now Department of General Administration), Govt. of Bihar, which was functional only for a very short period AND for issuance of further order / orders, direction / directions commanding the Respondents No. - 5 & 6 to provide information if sought under the Right to Information Act, 2005 and do not deny on non-statutory grounds.
(vi) FOR any other relief / reliefs for which the Petitioner is entitled under law."
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
4/8 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
5/8 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."
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.
Additional Chief Secretary, Department of General Administration, Govt. of Bihar, Patna 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).
6/8 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 three months from the date of its filing along with a copy of this order.
Statement accepted and taken on record.
As such, petition stands disposed of in the following terms:- (a) Petitioner shall approach the authority concerned i.e. Additional Chief Secretary, Department of General Administration, Govt. of Bihar, Patna 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 three months from the date of its filing along with a copy of this order; (c) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
7/8 (d) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;
(e) 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;
(f) Liberty reserved to the petitioner to approach the Court, if the need so arises subsequently on the same and subsequent cause of action;
(g) Liberty also reserved to the petitioner to make a mention for listing of the petition on priority basis. As and when any such mention is made, Registry shall take steps for listing the petition at the earliest. (h) We have not expressed any opinion on merits. All issues are left open;
(i) 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;
8/8 The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, stands disposed of.
(Sanjay Karol, CJ) ( S. Kumar, J) Rajiv/veenaAFR/NAFR NAFR CAV DATE NA Uploading Date Transmission Date NA