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2013 DIGILAW 1258 (PAT)

Munni Devi v. State of Bihar

2013-10-28

RAMESH KUMAR DATTA

body2013
ORDER Heard learned counsel for the petitioner and learned counsels for the respondent Bihar Police Co-operative Society Ltd. and for the State. 2. From the pleadings of the case it appears that the Bihar Police Co-operative Society Limited is a Co-operative Society registered under the Bihar Co-operative Societies Act with the aim of allotment of plots of land specially for construction of residential houses for the police personnel working in the State of Bihar, making deposits of specified amount. There is nothing to show that the said Society is not a purely private society to fulfil the housing needs of the members of that society. There is nothing further to show that the State exercises any direct control over the said society beyond the general regulation of all such similar co-operative societies under the provisions of the Bihar Co-operative Societies Act. Learned counsel for the petitioner was accordingly directed by order dated 21.10.2013 to satisfy this Court as to how a writ would lie against such Co-operative Society considering the fact that the Registrar, Co-operative Societies as per the averments made in the counter affidavit filed on behalf of the State appears to be merely a formal party. 3. From the dispute raised in the writ petition it is evident that the petitioner has sought the allotment of 2400 sq.ft. land in the proposed Bihar Police Colony, Sector II at Patna from the respondent Police Co-operative Society. Such dispute is a purely private dispute between the Co-operative Society and its members. 4. In support of the stand learned counsel for the petitioner has sought to rely upon two decisions of the Supreme Court in the case of Som Prakash Rekhi Vs. Union of India and another: AIR 1981 SC 212 and Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others : AIR 1989 SC 1607 . The thrust of learned counsel?s submission was based upon paragraphs 16, 19 and 21 of the latter decision which are in the following terms:– “16. There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The ‘public authority’ for them means every body which is created by statute- and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all ‘public authorities’. There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The ‘public authority’ for them means every body which is created by statute- and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all ‘public authorities’. But there is no such limitation for our High Courts to issue the writ ‘in the nature of mandamus’. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to ‘any person or authority’. It can be issued “for the enforcement of any of the fundamental rights and for any other purpose”. 19. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. 21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of Administrative Act 4th Ed. p. 540). We share this view. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of Administrative Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice whatever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” 5. Learned counsel has also sought to rely upon a Division Bench decision of this Court in the case of Dr.Nitendra Prasad Sinha Vs. The Chairman-cum-Managing Director, Bihar State Housing Board & Ors. : 2011(4) PLJR 219 . He has also relied upon two other decisions of learned Single Judges of this Court, namely, Rabindra Kumar Singh and another Vs. The Union of India & others : 2013(3) PLJR 498 and M/s. Shree Ram Wire Vs. The Bihar State Electricity Board & Ors. : 2013(4) PLJR 109 , for the proposition that if the challenge to maintainability is not raised at an earlier stage and the parties have completed the pleadings and the matter is continuing for a long period of time the same cannot be allowed to be raised at a belated stage. 6. So far as the reliance by learned counsel for the petitioner on the decision of the Apex Court is concerned, it is evident from the law laid down in the Shri Anadi Mukta’s case (supra) that if the rights are of a private character no mandamus can issue and mandamus will not lie if the authority or body is purely a private body with no public duty. It is evident that the Bihar Police Co-operative Society in allotting lands to its members does not perform any public duty. 7. So far as the reliance on Dr.Nitendra Prasad Sinha’s case (supra) is concerned, the same was directed against the Bihar State Housing Board which is a statutory body created by an Act of the State Legislature and thus the same has no relevance for the consideration of the present matter. 8. 7. So far as the reliance on Dr.Nitendra Prasad Sinha’s case (supra) is concerned, the same was directed against the Bihar State Housing Board which is a statutory body created by an Act of the State Legislature and thus the same has no relevance for the consideration of the present matter. 8. Similarly no benefit can be derived from the Rabindra Kumar Singh’s case (supra) where this Court refused to entertain objection regarding maintainability on the ground of territorial jurisdiction at a belated stage. That appears to be the established law so far as the maintainability on the issue of territorial jurisdiction is concerned when the Court as such does not lack inherently the jurisdiction to pass such order. 9. Similarly in the case of M/s. Shree Ram Wire (supra) the issue of maintainability on the ground of availability of alternative statutory remedy at a belated stage was not considered which is also the established position. 10. However, in the present matter the question is neither related to territorial jurisdiction nor solely the existence of alternative statutory remedy but as to whether a writ itself can issue against a purely private Co-operative Society in a dispute between the Society and its members that too in the case of a pure private function contractual in nature. 11. In my view, no writ under Article 226 of the Constitution can lie under such circumstances to such a Co-operative Society. The mere fact that a writ under Article 226 is maintainable against private parties does not mean that in each and every case such writ can be issued. 12. The writ application is evidently not maintainable. It is, accordingly, dismissed. 13. It will be open to the petitioner to avail of whatever statutory remedies are available to her under the law. 2014 (1) BBCJ 1