M/S Durga Bhawani Rice Mill v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18028 of 2022 ====================================================== 1.
M/s Durga Bhawani Rice Mill through its proprietor Rajesh Kumar Singh, aged about 48 years, (male), Son of Ramvriksh Singh, Resident of Naya Tola, Binji, Semapur, Factory, P.S. Balrampur District Katihar, Bihar. 2.
M/s Ambe Raw Rice Mill, through its proprietor Pankaj Kumar, aged about 40 years (male), son of Ram Sagar Prasad, Resident of Bairagi Tola, P.S. Balrampur, District- Katihar, Bihar.
3.
M/s Shanti Rice Mill, through its proprietor Mausami Kumari, aged about 36 years (female) wife of Ashish Kumar Singh, Resident of Hosana, Sonali, P.S. Kadwa, District - Katihar, Bihar.
4.
M/s K.G.N Raw Rice Mill, through its proprietor Md. Marghoob Alam, aged about 40 years (male), son of Late Adbul Mannan, Resident of Parhezi, Azamnagar, P.S. Azamnagar, District - Katihar, Bihar. ... ... Petitioner/s
Versus
1.
The State of Bihar through the Secretary, Food and Consumer Protection Department, Government of Bihar, Old Secretariat, Patna 800015. 2.
The Secretary, Food and Consumer Protection Department, Government of Bihar, Old Secretariat, Patna 800015.
3.
The Bihar State Food and Civil Supplies Corporation Limited, through its Managing Director, Khadya Bhawan, Daroga Prasad Rai Path, R-Block, Road No. 2, Patna - 800001.
4.
The Managing Director, Bihar State Food and Civil Supplies Corporation Limited, Khadya Bhawan, Daroga Prasad Rai Path, R-Block, Road No. 2, Patna - 800001.
... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Suraj Samdarshi, Advocate For the State :
Mr. Arvind Ujjwal, SC 5 For the BSFC :
Mr. Shailendra Kumar, 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) :- "a) To issue an appropriate writ, order or direction in the nature of mandamus commanding the
2/8 Respondents to allow the Petitioners to participate in Khariff Marketing Season 2022- 2023 and to ensure that petitioners are supplied paddy procured by the Primary Agriculture Centres for milling the same into Raw Rice (Arwa).
b) This Hon'ble Court may adjudicate and hold that exclusion of Raw Rice (Arwa) Rice millers from milling of paddy procured during Khariff Marketing Season 2022-2023, is completely unjustified.
c) This Hon'ble Court may further adjudicate and hold that fixation of procurement target of Raw Rice (Arwa) in Katihar as zero, is highly arbitrary and unreasonable in nature.
d) This Hon'ble Court may further adjudicate and hold that the Respondents cannot resile from the assurances given in resolution contained in memo no, 4618 dated 13.10.2022 and guidelines contained in memo no. 8922 dated 28.10.2022 and change the rules of game after the same has been set in motion.
e) This Hon'ble Court may adjudicate and hold that in light resolution contained in memo no. 4618 dated 13.10.2022 and guidelines contained in memo no. 8922 dated 28.10.2022 the Petitioners have a legitimate expectation of participating in Khariff Marketing Season 2022 2023 for milling of Rice.
f) This Hon'ble Court may further adjudicate and hold that considering the fact that there was only one Par boiled (usna) Rice mill in the district of Katihar, the Respondent should not have entrusted the entire quantity of paddy procured in the district upon the said mill for milling.
3/8 g) This Hon'ble Court may further adjudicate and hold that the intent of state government as decipherable from resolution contained in memo no. 4618 dated 13.10.2022 and guidelines contained in memo no. 8922 dated 28.10.2022 was not to stop procurement of Raw Rice (Arwa) completely.
h) To award any other relief or reliefs in the fact and circumstance 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 petitioners, learned counsel for the petitioners, under instructions, states that petitioners shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioners 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 petitioners, 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) 2
4/8 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
5/8 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 wellrecognised 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
6/8 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) Petitioners shall approach the authority concerned i.e. Respondent No. 2, namely, The Secretary, Food and Consumer Protection Department, Government of Bihar, Old Secretariat, Patna within a period of three 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 four months from the date of its filing along with a copy of this
7/8 order;
(c) The order assigning reasons shall be communicated to the petitioners;
(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 petitioners to take recourse to such alternative remedies as are otherwise available in accordance with law;
(g) We are hopeful that as and when petitioners take 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 petitioners 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
8/8 issues are left open;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, shall stand disposed of.
(Sanjay Karol, CJ) ( Partha Sarthy, J) Prakash/Sujit AFR/NAFR CAV DATE Uploading Date Transmission Date