W R I T OF P R O H I B I T I O N

 W R I T OF P R O H I B I T I O N

TABLE OF CONTENT

Topic 1. INTRODUCT INTRODUCTION--ION----------------------------------------------------------------------------------------------------------------------------------2. ORIGIN ORIGIN OF WRITS WRITS---------------------------------------------------------------------------------------------------------------------------------3. HISTORICA HISTORICAL L BACKGROU BACKGROUND----ND--------------------------------------------------------------------------------------------------4. WRITS WRITS OF CERTIOR CERTIORARI ARI AND AND PROHIBIT PROHIBITION---ION-------------------------------------------------------------5. WRIT OF MANDAM MANDAMUS---US--------------------------------------------------------------------------------------------------------------------6. WRIT OF QUO QUO WARRANTOWARRANTO-----------------------------------------------------------------------------------------------------------7. HABEAS HABEAS CORPUS---CORPUS---------------------------------------------------------------------------------------------------------------------------------8. THE DISTIN DISTINCTIO CTION N BETWEEN BETWEEN MANDA MANDAMUS MUS AND AND PROHIBIT PROHIBITION--ION---------9. CONCLUSIO CONCLUSION------N-------------------------------------------------------------------------------------------------------------------------------------

INTRODUCTION

Administrative law has greatly demarcated the checks, balances and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by the any State, Governmental Governmental agencies and instrumental instrumentalities ities defined under Article Article 12 of the Cons Consti titu tuti tion on of Indi India. a. And And the the judi judicia ciary ry is dyna dynami mical cally ly carv carvin ing g the the prin princi cipl ples es and and exceptions, while making the judicial review of administrative actions. The administrative law is that branch of law that keeps the governmental actions within the bounds of law or to  put it negatively, it prevents the enforcement of blatantly bad orders from being derogatory. derogatory. The Courts have constantly tried to protect the liberties of the people and assume  powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are misused or abused. The socio-politic Institution Institution need not cry, if the courts do justice justice and perform the substantial substantial role. That is the essence of justice. It is submitted, the trend is to read the social justice and to translate in real realit ity. y. The The welf welfare are Stat Statee has has to disch discharg argee its its duty duty fairl fairly y with withou outt any any arbi arbitr trary ary and and discriminatory treatment to the people in the country. If such powers come to the notice of  the Courts, the courts have raised the arms consistently with the rule of law. Today the Government is the provider of social services; new form of property like jobs, quotas,

licens licenses es and mineral mineral rights rights etc. etc. The dispen dispenser ser of specia speciall services services cannot cannot therefo therefore re act arbitrarily. Courts laid the standard of reasonableness in Governmental action. ORIGIN OF WRITS

The origin of writs can be drawn from the English Judicial system and were created with the development of English folk courts-moots to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king which acted as groundwork  for the subsequent proceedings. However, with different segments writs took various forms and names. The writs were issued by the crown and in the interest of the crown but with the  passage of time it became available for ordinary citizens also. However, a prescribed fee was charged for it and the filing of these writs was known as Purchase of a writ.

HISTORICAL BACKGROUND

The origin of writs in India goes back to the Regulating Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877. WRITS OF CERTIORARI

Certiorari is a Latin term being in the passive form of the word ‘Certiorare’ meaning to inform. It was a royal demand for information. Certiorari can be described as “one of the most valuable and efficient remedies.” Certiorari is one of the five prerogative writs adopted by the Indian Constitution under Article 226 which would be enforced against the decisions of the authority authority exercising judicial judicial or quasi judicial judicial powers. powers. Such powers powers are exercised exercised when the authorities authorities have failed to exercise exercise the jurisdiction jurisdiction though though vested in it or  failed to exercise the jurisdiction though vested on him or to correct the apparent error on the face of record or there is violation of the principle of natural justice. An instance showing the

certiorari powers was exercised by the Hon’ble Supreme court in  A.K.Kraipak v. v . Union of   India1, where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari for quashing the action. WRIT OF PROHIBITION

The writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure.’ In  East India Commercial Co.  Ltd v. Collector of Customs 2, a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.

WRIT OF MANDAMUS

Mandamus is a judicial remedy which is in the form of an order from a superior  court to any Government agency, court or public authority to do or forbear from doing any specific act which that body is obliged to do under the law. The writ of mandamus is issued whenever the public authorities fail to perform the statutory duties confirmed on them. Such writ is issued to perform the duties as provided by the state under the statute or forbear or  restrain from doing any specific act. The first case reported on the writ of mandamus was the Middle tone case in 1573 wherein a citizen’s franchise was restored. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsbury’s In Halsbury’s Laws of England , it is mentioned that: “ As a general rule the order will not be granted unless the party complained of  has known what it was required required to do, so that he had the means of considering 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.” 1 2

AIR 1970 SC 150 AIR 1960 Cal 1

WRIT OF QUO WARRANTO

Quo Warranto means “by “ by what warrant or authority ”. Quo Warranto writ is issued against the person of public who occupies the public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. In University of Mysore v. Govinda Rao 3, the Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right. WRIT OF HABEAS CORPUS

The Latin term Habeas Corpus means ‘have ‘ have the body’ . The incalculable value of  habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom”. The writ of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable detention. It objects for providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detained person himself. It is a judicial order issued by Supreme Court or  High Court through which a person confined may secure his release. The writ of Habeas Corpus Corpus can be filed by any person on behalf of the other person. person. In  Icchu Devi v. Union of   India4, the Supreme Court held that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of proof. Even a post card by any pro bono publico is satisfa satisfacto ctory ry to galvan galvanize ize the court court into into examin examining ing the legalit legality y of detent detention ion.. In  A.D.M.  Jabalpur v. Shivakant Shukla 5, it was observed observed that “the writ of Habeas Corpus is a process process for securing the liberty of the subject by affording an effective means of immediate relief  from unlawful or unjustifiable detention whether in prison or private custody. By it the High Court and the judges of that court at the instance of a subject aggrieved command the  production of that subject and inquire into the cause of his imprisonment. If there is no legal  justification for that detention, then the party is ordered to be released.” CONSTITUTIONAL CONSTITUTIONAL PROVISIONS

3 4 5

1965 AIR 491, 1964 SCR (4) 576 (1980) 4 SCC 531 (1976) 2 SCC 521 AIR 1976 SC 1207

One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the very soul of the Constitution and the very heart of it.” In  Devilal v. STO, STO, it has been marked that,” There can be no doubt that the Fundament Fundamental al Rights, Rights, guaranteed guaranteed to the citizens are a significant significant feature of our Constitution Constitution and the High Courts under Article 226 are bound to protect these Fundamental Rights.” Justice Subbarao in the case of Basheshwar Nath v. Commissioner, Income Tax  ,stated that,“A large majority of people are socially poor educationally backward and   politically yet not conscious of their rights, cannot be pitted against the state or the institution or they cannot be put on equal status with the state or large organisations. The  people are requires to be protected protecte d from themselves. It is therefore the duty of the court to  protect their rights and interests. Fundamental rights are therefore transcendental in nature and created created and enacted enacted in nation national al and public public interes interestt and therefore therefore they they cannot cannot be waived.” In Daryao In Daryao v. State of U.P. 6  , it was held that the right to obtain a writ must equally be a fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as an individual’s right to move the Supreme Court but it is also the duty and responsibility of the Supreme Court to protect the fundamental rights. ROLE OF WRITS IN ADMINISTRATIVE ACTIONS

Now as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as necessary  phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on any subject to serve the public interest and while making law, it has  become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under  the Act. The Courts have retained their jurisdiction to test the Statute on the ground of  reason reasonabl ablene eness. ss. Mostly Mostly,, the courts courts review review on two counts counts;; firstly firstly whethe whetherr the statute statute is substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 6

AIR 1950 SC 27 114

14 of the Constitution. Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitat limitation ionss prescri prescribed bed to achiev achievee the object object of the Statut Statute. e. The The discret discretion ionary ary powers powers entr entrus uste ted d to the the diff differ eren entt exec execut utiv ives es of the the Gove Govern rnme ment nt play play subs substa tant ntia iall role role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there is abuse abuse and misuse misuse of powers powers by the executive executivess or they they take take into into account account irrelevan irrelevantt consideratio consideration n for that they are not entitled entitled to take or simply misdirect misdirect them in applying the  proper provision of law, the discretionary exercise of powers is void. Judicia Judiciall review review is exclud excluded ed when when it is found found that that execut executive ivess mainta maintain in the standar standard d of  reason reasonabl ablene eness ss in their their decisi decisions ons.. Errors Errors are often often crept crept in either either becaus becausee they they would would maintain pure administrative spirit as opposed to judicial flavour or that they influence their  decis decisio ions ns by some some irrel irrelev evan antt cons consid idera erati tion onss or that that some someti time mes, s, the the auth author orit itie iess may may them themsel selve vess misd misdir irect ect in law or that that they they may may not not appl apply y thei theirr mind mind to the the facts facts and and circumstances circumstances of the cases. Besides, this aspect, they may act in derogation derogation of fundamental fundamental  principles of natural justice by not conforming to the standard or reasons and justice or that they do not just truly appreciate the existence or non existence of circumstances that may entitle them to exercise the discretion. “The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or  satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.” The role of writs is also sensibly laid down in a famous  Padfield’s case: case: In England in earli earlier er days days the the Cour Courts ts usua usuall lly y refu refused sed to inter interfe fere re wher wheree the the Gove Govern rnme ment nt or the the concerned officer passed what was called a non-speaking order, that is, an order which on

the face of it did not specify specify the reasons reasons for the orders. Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant reasons. Where there was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order. Even in England the Courts have travelled very far since those days. They no longer find the face of the Sphinx inscrutable. APPLICATION OF THE WRIT OF CERTIORARI

The writ of Certiorari is basically issued against the statutory bodies exercising  judicial or quasi judicial powers. Such writ is issued against the authorities namely the government and the courts or other statutory bodies who have power to determine and decide the lis between the parties. In deciding such issues if the decision making order is  passed without any authority or has passed the order in exercise of such authority or has committed an error of law and facts the high court is empowered to correct such error of the lower court or government authorities. Certiorari may apply when the administrative or  executive authority fails to observe their duty to act fairly with respect to the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal even if the decision impugned is pronounced. A leading case of  Ryots of  Ryots of Garabandho v. Zamindar of   Parlakimedi7 , was the first decision on the writ of Certiorari. APPLICATION OF THE WRIT OF MANDAMUS

The writ of mandamus is ordered when the statutory authorities who entrusted with the duties fail to discharge its obligatory duty. It may be applied when the government authorities vested with absolute powers fail to perform their administrative and statutory duties. In  Ratlam Municipal Council v. Vardichand 8 , on account of the public nuisance created in the area by the corporation in not maintaining the drainage system and the dirty water water stinkin stinking g had clogge clogged d around around which obviou obviously sly created created nuisanc nuisancee at the hands hands of  municipality for not discharging the duties under the act. As a result the residents of Ratlam municipality moved the Sub-divisional magistrate under section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance and the court issued the directions that, “Judicial discretion when facts for its exercise are present has a mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has before him information and evidence which disclose 7 8

(1945) 47 BOMLR 525 AIR, 1980. SC 1622

the presence of public nuisance, considers it lawful to remove such obstruction. This is a  public duty implicit in the public power to be exercised on behalf of the public and is  pursuant to public proceeding.” Lord Denning observed: “In my opinion every genuine complaint which is worthy of investigation by the committee of investigation should be referred to that committee. The Minister is not at liberty to refuse it on grounds which are arbitrary or capricious. Not because he has a personal antipathy to the compliant or does not like his political views. Nor on any other irrelevant ground... It is said that the decision of the Minister is administrative and not judicial. But that does not mean that he can do as he likes, regardless of right or wrong. Nor does it mean that the Courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievance should be remedied. When parliament has set up machinery for that very purpose, it is not for the Minister to brush it on one side. He should not refuse to have a complaint investigated without good reason... But it is said that the Minister is not  bound to give any reason at all. And that, if he gives no reason, his refusal cannot be questioned. So why does it matter if he gives bad reason? I do not agree. This is the only reme remedy dy avai availa labl blee to a pers person on aggr aggrie ieve ved… d… Else Else why why did did it set set up a comm commit itte teee of  investigation? Minister… would at least have good reasons for refusal; and if asked, he should give them. If he does not do so, the court may infer that he has no good reasons. If it appears to the Court that the Minister has been, or must have been, influenced by extraneous considerations which ought not to have influenced him or, conversely, has failed, or must have failed, to take into account considerations which ought to have influenced him. The court has power to interfere; it can issue a mandamus to compel him to consider the complaint properly.” APPLICATION OF THE WRIT OF PROHIBITION

The writ of Prohibition is issued essentially against the government or its authorities when they are not conferred with the power or jurisdiction jurisdiction to decide the dispute. dispute. The court  by virtue of this power restrains the authority to exercise such powers which are not given to the authority. APPLICATION OF THE WRIT OF QUO WARRANTO

The high Court would exercise the power of Quo Warranto against the public authority or government who acts contrary to the provisions of the statute and restrains the auth author orit ity y or publ public ic serv servan antt from from usur usurpi ping ng the the publ public ic offi office ce on acco accoun untt of lack lack of  qualification. It is a means of asserting sovereign right. In Sonu Sampat v. Jalgaon Borough  Municipality9 , “If the appointment of an officer is illegal, every day that he acts in that office, a fresh cause of action arises and there can be therefore no question of delay in  presenting a petition for quo warranto in which his very, right to act in such a responsible  post has been questioned.” APPLICATION OF THE WRIT OF HABEAS CORPUS

The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which which is conc concei eive ved d to be very very vita vital. l. It is issue issued d agai against nst the the wron wrongf gful ul dete detent ntio ion n or  confinement through the police authority. By virtue of this writ the police authorities or other  such statutory authorities are empowered to bring the custody of the person who has been wrongfully detained by the court of law. In the case of  State of Bihar v. Kameshwar Singh 10 it was stated that, the writ of Habeas Corpus is in the nature of an order for calling upon the  person who has detained or arrested another person to produce the latter before the court, in order to let court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. One of the telling ways in which the violation of  that right can reasonably be prevented and due compliance with the mandate of article 21 secured, is to mulct its violators in the payment of monetary compensation. THE USE OF MANDAMUS AND PROHIBITION

The writ of mandamus (literally, “we command”) is used by an appellate court to direct a trial court judge (or an intermediate appellate court) to take some particular action that is his duty to take. At times, the manner in which this writ operates has been overlooked, leading to confusion. For example, when an appellate court issues a writ with an opinion holding that the trial court had no authority to issue a particular order, the trial court’s order  is still in effect and binding on the parties until the trial court vacates vacates the order. The issuance of the writ does not itself vacate the order; the writ merely directs the trial court to vacate the order.

9

I.L.R 1958 Bom 113

10

1959 AIR 1303, 1960 SCR (1) 332

The standard for obtaining a writ of mandamus is quite familiar. Because mandamus is a “drastic and extraordinary writ,” the writ will issue “only where there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to  perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4)  properly invoked jurisdiction of the court.”3 “The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful. doubtful.”4Whe ”4When n the ruling ruling at issue is appropriate for mandamus review and involves a matter of the trial court’s discretion, this standard is usually encapsulated in a review of whether the trial court has “exceeded its discretion.”5 (The old language regarding “abuse” of discretion is now disfavoured.) There is and can be no exhaustive list of situations wherein mandamus review is appropriate. However, rulings for which mandamus has been recognized as the appropriate method of  appellate review include: • Denial of a defence of immunity; • The denial of a motion for change of venue; and • Rulings on discovery matters in certain circumstances: (a) When a privilege is disregarded; (b) When a discovery order, compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the  producing party far out of proportion to any benefit received by the requesting party; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defence so that, in either  The writ of prohibition is more limited in scope than mandamus, as it is directed spec specifi ifical cally ly at whet whethe herr a lowe lowerr cour courtt has has juri jurisd sdic icti tion on over over some some matt matter. er. The The writ writ is “preventative rather than corrective,” and is used by an appellate court to confine a lower  court to its jurisdictional limits. Whereas a writ of mandamus might direct a trial court to vacate an order based on a lack of jurisdiction, an accompanying writ of prohibition might direct that court not to take any further action in the case for the same reason.“Like mandamus, prohibition is an extraordinary writ, and will not issue unless there is no other  adequ adequate ate remedy remedy.” .” The extreme extreme cautio caution n and used only only in cases cases of extrem extremee necessi necessity. ty. Prohibition is not a favoured writ and will not issue unless there is no other adequate remedy.” And, as with mandamus, a petitioner must show that he is clearly entitled to the

writ because the writ will issue only if the pleadings show on their face that the lower court does not have jurisdiction. “his writ is “to be employed with.

CONCLUSION

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasise that the absence of arbitrary power is the first essential of the rule of  law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from this point of view means that the discretion or the decision must be based on some principles and rules. In general the decision should be  predictable and citizens should know where he is. If a decision is taken not on the basis of  any principle or rules then such decision is arbitrary and is taken not in accordance with the rule of law.

The law has reached its finest moments stated Duglas, C.J. in United States v. Wunderlich when it has freed man from the shackles of unlimited discretion. The man has suffered on account of absolute discretion. The decision should be guided by rule of law and it should not be based on whims, fancy and humour. The Constitution is the law of the laws and nobody is supreme. Even the judges of  Supreme Court are not above law and they are bound by the decisions which are the law of  the land land declar declared ed by them them under under the writ writ petiti petitions ons.. Thus, Thus, the constit constituti utiona onall remedi remedies es  provided under the constitution operate as a check and keeps the administration of  government within the bounds of law.

D R A F T F O R  F I L I N G A W R I T : -

IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL WRIT JURISDICTION)

C.W.J.C. NO.____________ OF 200

In the matter of an application under Article 226 of the Constitution of India. AND In the matter of: S um u m an a n J ha h a , s on o n o f S ri r i S at a t ya y a N ar a r ay a y an a n J ha h a , r es e s id i d en e n t o f V il i l la l a ge g e +p + p os os t –   Malmal, P.S- Kaluahi, District-Madhubani ………..Petitioner. Versus 1.

T he he S ta t a te t e o f Bi B i ha h a r th t h ro r o ug ug h se s e cr c r et e t ar a r y de d e ve v e lo l o pm p m en e n t of o f r ur u r al a l d ep e p ar a r tm t m en e n t, t, Government of Bihar and Panchayat Raj.

2.

T h e D i re r e c to to r , d ep e p a r tm t m e n t o f P a nc nc h a ya ya t R a j, j, g o v e rn rn m e nt nt o f B i h a r, r, Patna.

3.

T he he P an a n ch c h ay a y at a t i Ra R a j Of Of fi f i ce c e r, r , M ad a d hu h u ba b a ni n i , P .O . O . +P +P .S . S .. - Ma M a dh d h ub u b an a n i. i.

4.

T he he B lo l o ck c k d ev e v el e l op o p me m e nt n t O ff f f ic i c er e r , Ka K a lu l u ah a h i Bl B l oc o c k at a t P .O . O . +P + P .S . S -K - K al a l ua u a hi hi , District-Madhubani.

5.

T he he S a rp r p an a n ch c h , Gr G r am a m K ah a h ar a r i, i , P ur u r sa s a ul u l ia i a , G ra r a m Pu P u rs r s au a u li l i a, a , P os o s tt - Ka K a lu l u ah a h i, i, District-Madhubani.

6.

I na na mu m u l Ha H a uq u q e S /O /O M d. d . Z ah a h ru r u l H aq a q u e, e , r e si s i de de nt n t o f V il i l la l a ge g e - H ar a r ip i p ur ur , Kazi Tol, P.O.- Bakshi Tol, District - Madhubani -----------------Respondents.

To,

T h e H o n ’ bl b l e M r s . R e k ha ha M . D o sh s h i t , t h e H o n’ n’ b l e C h i e f J u s t i ce ce o f t h e High Court of Judicature at Patna and his companion Justices of the said Hon’ble Court. T he h e h um u m bl b l e p et e t i ti t i on o n o n b e ha ha l f o f t he he  pe  p e t i t i o n e r a b o v e n a m e d . MOST RESPECTFULLY SHEWETH :-

1.

T h at a t t h is is a p pl pl ic i c at a t io i o n i s b e in in g f il il ed e d f o r di d i re r e ct c t in i n g t he he r e sp s p on on de de nt nt s t o sent his name as Naya Mitra for the Gram Katchari –Pursaulia before the

2.

P an a n ch c h ay a y at a t i Ra R a j Au A u th t h or o r it i t ie i e s, s , w hi h i ch c h h as a s b ee e e n st s t op o p pe pe d by b y t he h e r es e s po p o nd nd en en t  No  N o . 5 i n m o s t a r b i t r a r y , i l l e g a l m a n n e r , e v e n a f t e r a c c e p t a n c e o f h i s  jo  j o i n i n g a s N a y a M i t r a .

3.

T h a t t he he pe p e t it it io io n er e r pr p r ay a y s fo f o r fo f o l l ow ow in in g :  R E L I E F S 

I.

T h a t th t h e r es e s po po n d e n t s be b e d ir i r ec e c te te d to t o s en e n t h is i s n am a m e a s N ay a y a M it i t r a fo for   the Gram Katchari –Pursaulia before the Panchayati Raj Authorities and the petitioner be permitted to start the work of Naya Mitra for  gram Katchari, Pursaulia.

II .

T h e r e sp s p o n d e nt nt s a r e d ir i r ec ec te te d t o p a y t he he p e t it it io io n e r w ho h o h a s b e en en selected and joined as Nayya Mitra for Gram Katchari Pursaulia.

I I I. I.

T ha h a t , th t h e r es e s p on on de d e n t be b e d i re r e c te t e d t o s to t o p t he he f u nc n c t io i o ni n i n g of o f r e s po po nd n d en en t n o . 6 a s N a y a M i t r a f o r P a n c hy h y a t P u r s a ul u l i a , i f a t a l l h i s j o i ni ni n g h a s  be  b e e n a c c e p t e d b y t h e r e s p o n d e n t s f o r w h i c h t h e p e t i t i o n e r h a s a l r e a d y  jo  j o i n e d o n 1 4 - 0 1 - 2 0 0 8 .

T ha h a t a n y o t h er e r r e li l i e f o r r e li l i e fs f s m ay a y b e a l lo l o we w e d, d, w hi hi ch c h m ay a y b e j us us t p ro r o p er e r a nd n d e qu q u i ta t a bl b l e i n t he he opinion of this Hon’ble Court.

4.

T h at a t t he h e p et e t it i t io i o ne n e r is i s r es e s id i d en e n t of o f G ra r a m + Po P o s tt - M al a l ma ma l, l , P .S . S + B lo l o ck ck K a lu lu a hi hi , D is i s t ri r i c tt- M aad d hu h u ba b a ni n i . H e i s a l a w g r ad ad ua u a t e a n d p r ac ac t ic i c i ng ng lawyer at Madhubani since 2005.

5.

T h at a t t he h e p et e t it i t io i o ne n e r is i s a L a w Gr G r ad a d ua ua te t e a nd n d h e ha h a s pa p a rt r t ic i c ip i p at a t ed e d i n t he he  pr  p r o c e s s f o r t h e a p p o i n t m e n t o f N a y y a M i t r a a c c o r d i n g t o B i h a r G r a m Katchari Nayya Mitra Niyamawali 2007. He has filled up his form for  the post of Gram Katchari Nayya Mitra for Gram Katchari Pursaulia on 13.9.2007. 13.9.2007. After accepting the form he has been given a receipt in this regard from the office of Pursaulia Gram Panchayat on 13.9.2007. The

Photo

Stat

copy

of

the

acknowledgement receipt granted by the Pursaulia

Gram

Panchayat

dated

1 3. 3 . 9. 9 . 20 2 0 07 0 7 i s b e in in g a nn n n e xe xe d h er e r e wi wi t h and marked as Annexure-1. 6.

T ha ha t th t h e pe p e ti t i ti t i on o n er e r h ad a d r ec e c ei e i ve v e d a le l e tt t t er e r f ro r o m Su Su rp r p an a n ch c h G ra r a m Ka K a tc t c ha h a ri ri P u rs r s a u li l i a d a t ed e d 1 0 .1 . 1 . 20 2 0 0 8 i n w h ic i c h i t h a s b e e n i n t im i m a t ed ed t h a t h e h a s  be  b e e n s e l e c t e d a s G r a m K a t c h a r i N a y y a M i t r a i n G r a m K a t c h a r i P ur u r s au a u li l i a u nd n d e r K a lu lu a hi hi B lo l o c k a c co c o r di di n g t o B ih i h a r G r am a m K a tc t c ha ha r i  Na  N a y y a M i t r a N i y a m a w a l i 2 0 0 7 . I t h a s f u r t h e r b e e n s t a t e d i n t h i s l e t t e r  that if he is ready to accept this employment then he must sent his consent letter to the office of under sign within 10 days. It has been

d ir i r ec e c te t e d t ha h a t h e m ay a y g av a v e h is i s j oi o i ni n i ng n g i n b et e t we w e en e n 1 0. 0 . 1. 1 . 20 2 0 08 08 t o 14.1.2008. The Photo Stat copy of the letter dated 1 0. 0 . 1. 1 . 20 2 0 08 08

i ss s s ue u e d b y S ur u r pa p a nc n c h G ra ra m

Katchari is being annexed herewith and marked as Annexure-2. 7.

Tha t

after

receiving

this

letter

from

the

respondents

S ur pa nc h

Katchari, Pursaulia the petitioner has visited to the office of Gram Katchari Pursaulia but on that very day the Surpanch was not available t he h e r ea e a f te t e r t h e p e ti ti t io i o ne n e r h as a s g i ve ve n h is i s c o ns ns e nt nt l e tt tt e r o n 1 4. 4 . 1. 1 . 20 2 0 08 08 about his joining on the same day he has also given his joining in the office of Gram Katchari Pursaulia before Panchayat .Secretary Gram Katchari Pursaulia which was also acknowledge by Up-Surpanch on the same day. The Photo Stat Copy of consent letter  d at a t e d 1 4. 4 . 1. 1 . 20 2 0 08 0 8 , j o in in i ng ng l e tt t t e r d a te te d 1 4 .1 . 1 . 20 2 0 0 8 a r e b e i ng ng a n ne n e x e d h e r ew ew i t h and marked as Annexure-3 & 4. 8.

T h at a t i t i s s ta t a te t e d t ha ha t t he he p et e t it i t io i o ne ne r h as a s a ls l s o c om o m mu mu ni ni ca c a te t e d a bo bo ut ut h is is  jo  j o i n i n g o n t h e p o s t o f N a y y a M i t r a G r a m K a t c h a r i , P u r s a u l i a v i l l a g e t o the Block development officer Kaluahi Block, District-Madhubani. In this regard the petitioner has also sent other letter on 16.1.2008 to Panchayat Panchayat Raj Officer, District- Madhubani. The Photo Stat copy of the letter dated 14.1.2008 14.1.2008 and 16.1.2008 16.1.2008 communicated communicated t o B l o ck ck d e ve v e l o pm pm e n t o f f ic i c e r , K a l ua ua h i

a nd n d P a nc nc h ay ay a t R a j O f fi f i c er e r , D is i s t ri r i c ttMadhubani are being annexed herewith and marked as Annexure-5 & 5A. 9.

T h a t i t i s p e r ti t i n e nt nt t o m en e n t i on on h e r e t ha h a t i n f or or ma ma t io io n a cc c c o r di di ng ng t o i nf n f or o r ma m a ti t i on o n o f t he h e p et e t it i t io i o ne n e r o n t he h e p os o s t o f N ay a y ya y a M it i t rraa G ra ra m Katchari Raj , Pursaulia was also published in the daily News Paper  namely Dainik Jagaran darted 20 Jan. 2008. The

Photo

Stat

copy

of

the

News

Published in the Dainik Jagaran News Paper on 20 Jan. 2008 is being annexed here with and marked as Annexure-6. 1 0. 0.

T h at a t i t i s s ta t a te t e d t ha h a t a ft f t er e r j oi o i ni ni ng ng a s N ay a y ya ya M i tr t r a i n V il i l la l a ge g e G ra ra m K at a t ch c h ar a r i R aajj , P ur u r sa s a ul u l ia i a t he h e p et e t it i t io i o ne n e r h as a s m et e t w it i t h S ur u r pa p a nc nc h o f   Pursaulia Gram Katchari but he was not happy with the petitioner and told that he cannot work as Nayya Mitra till he shall fulfil demand.

1 1. 1.

T ha h a t l at a t e r on o n i n th t h e m on on th t h o f Fe F e b. b . 2 00 0 0 8 th t h e p et e t it i t i on on e r go g o t i nf nf or o r m at a t i on on that the respondents Surpanch Gram Katchari, Pursaulia is interested f or or o th th er e r p er e r so s o n a s G ra r a m K at a t ch c h ar a r i N a yy y y a M it i t ra r a s o h e f il i l ed ed a n a pp p p l ic ic a ti t i on o n u nd n d e r R i gh gh t t o I n fo fo r ma ma t io i o n A c t f o r t a ki ki n g i n fo fo r ma ma t io io n according to appointment appointm ent of Nayya Mitra Gram Panchayat Panchayat Pursaulia on 1 5. 5. 3. 3 . 20 2 0 08 0 8 . H e h as a s a ls l s o d em e m an a n de d e d t he h e p ro r o ce c e ed e d in i n g B oo o o k o f G ra ra m Panchayat dated 14.1.2008 vide his letter dated 15.3.2008. The photo Stat copy of the letter sent to B DO D O K a lu l u ah a h i b y t he h e p et e t i ti t i on o n e r d a te te d 1 5 .3 . 3 . 20 2 0 0 8 u n de d e r R i g ht ht t o I n f or o r m a ti ti o n

A ct ct

is

b ei e i ng ng

a nn nn ex e x ed ed

h er er ew e w it it h

a nd nd

marked as Annexure-7. 1 4. 4 . T ha h a t t h er er e af a f t er e r t he h e p ub u b li l i c i nf n f o rm r m a ti ti o n o f fi f i c er e r c u m a d di di t io io na n a l B DO DO , Kaluahi sent to letters no. 288 dated 20.3.2008 and 289 dated 20.3.2008  by  b y w h i c h h e h a s c a l l e d t h e p e t i t i o n e r o n 2 6 . 3 . 2 0 0 8 . 15. Thereupon the petitioner visited in the office on 26.3.2008 and marked total 24 pages upon which the information information officer sent another letter no. 3 73 7 3 d at a t e d 4 .4 . 4 .2 . 2 00 0 0 8 b y w h ic ic h h e h as a s d e ma ma nd n d e d t o t a l 4 8 R u pe pe e s a nd nd l as a s tl t l y t he he

i nf n f or o r ma m a ti t i on on

o ff f f ic i c er er

h as as

p ro r o vi v i de d e d t he he

c on o n ce c e rn r n ed ed

p ap a p er er s

demanded by the petitioner. 16. That it is pertinent to mention here that from the proceeding book of  Gram Panchayat it appears that in the process of selection for the post o f N a yy yy a M i tr t r a G ra r a m K a tc tc h ar ar i c o un un s el e l i ng ng h a s b ee e e n t a ke ke n p la l a c e a nd nd according to the proceeding dated30.7.200 dated30 .7.2007 7 it appears that there were in t ot o t al a l 6 5 c an a n di d i da d a te t e s a pp p p li l i ed e d f or o r t he h e p os os t o f N ay a y ya y a M it i t rraa b ut u t i n t he he counseling only 20 were present and it has been decided with majority that a seniority list shall be prepared on the basis of getting nos. It has a ls l s o b ee e e n d ec e c id i d ed e d t ha h a t p er e r so s o ns n s w ho h o g ot ot t he h e h ig i g he h e st s t n o. o . s ha h a ll l l g ot ot e m pl pl oy o y me m e n t a n d l e t t er e r i n t hi h i s r e ga ga r d s h al a l l b e i s su s u ed e d t o t h e s e le l e c te te d candidates. If the selected candidates shall not join within prescribed  pe  p e r i o d t h e n h i s c a n d i d a t u r e s h a l l a u t o m a t i c a l l y c a n c e l l e d a n d n e x t  pe  p e r s o n s h a l l b e c a l l e d f o r t h e e m p l o y m e n t . 1 8. 8 . T ha h a t a cc c c or o r di d i ng n g t o p re r e ce c e di d i ng ng

d at a t ed ed

7 .1 . 1 1. 1 . 20 2 0 07 0 7 i t a pp p p ea e a rs rs

t ha h a t t he he

candidature of the candidate namely Ajay Kumar who was at the top was cancelled as he has given his consent for his joining. Thereafter list of  six candidates has been directed to be published and time given for their 

 jo  j o i n i n g f r o m 7 . 1 1 . 2 0 0 7 t o 7 . 1 2 . 2 0 0 7 b u t n o o n e c a n f o r w a r d t o j o i n . Thereafter on 8.12.2007 a further meeting for Gram Katchari Nayya Mitra Neojan Samiti has taken place in which a decision was taken that appointment letter be issued to the next person in the seniority panel but it was rejected on the ground that he has not come at time from the  pr  p r o c e e d i n g b o o k

of Gram Katchari Nayya Mitra Neojan Samiti dated

7.1.2008 7.1.2008 which has been been taken place in the Chairman ship ship of Surpanch Surpanch n a me me l y R a m B i l as a s h S a h i n w hi hi ch ch

it

h a s b e en en

d e ci c i d e d t ha ha t

the

employment employment letter shall be issued to the 13 candidates as per the list but n o o ne ne h as as t ur ur nn - up u p h is i s j oi oi ni ni ng n g . S o i t h as a s b ee e e n d ec e c id i d ed e d t ha h a t t he he appointment letter be issued to the next candidates. 19. That form the proceeding proceeding book it appears appears that on 10.1.2008 10.1.2008 employment employment letter has been issued to the present petitioner which has been received  by  b y t h e p e t i t i o n e r . T h e r e u p o n t h e p e t i t i o n e r v i s i t e d i n t h e o f f i c e o f G r a m Katchari, Pursaulia where his joining was accepted. The typed copy of the proceeding book  of

G ra ra m

10.1.2008 a nne xe d

K ac a c ha h a ha h a ri ri a nd nd

d at a t ed ed

1 4 . 1 . 20 20 0 8

herewith

and

7 .1 . 1 .2 . 2 00 0 0 8, 8, is

b e in in g

marked

as

Annexure-8, 8/A & 8/B. 20. That the petitioner was ignored since the date of his joining on the post o f N a yy yy a M i tr tr a b y t h e S ur u r p an a n ch c h G r am a m K a tc tc h ar a r i w h o w a s d e ma ma nd nd e d illegal gratification of the petition and upon his refusal he has issued fresh letter to respondent no. 6 for joining on 5.2.2008 in most wrong, illegal and arbitrary manner to a candidate which was at serially no. 9

a n d w h os os e c a nd n d id i d a tu tu r e w a s a l re r e a dy dy r e je j e c te t e d b y t he h e G r am a m K a tc t c ha ha r i  Na  N a y y a M i t r a N i y o j a n S a m i t i . 21. That it is respectfully stated that the respondents have acted in most arbitrary manner and the joining of the petitioner is being completely ignored. Even after joining of the petitioner on the post of Nayya Mitra the petitioner was stopped form working and per the knowledge of the  pe  p e t i t i o n e r t h e r e s p o n d e n t S u r p a n c h G r a m K a t c h a r i , P u r s a u l i a h a s t a k e n  jo  j o i n i n g o f p r i v a t e r e s p o n d e n t . 22. That it is pertinent to mention here that there is only post of Nayya Mitra in Gram Katchari, Pursaulia on which the present petitioner petitioner has already  jo  j o i n e d o n 1 4 . 1 . 2 0 0 8 . H e h a s i n t i m a t e d a b o u t h i s j o i n i n g t o t h e B S O , Kaluahi Block, district Panchayat Raj Officer , Madhubani but ignoring t h e a c kn k n ow o w l ed e d ge g e m en en t o f t h e p et e t i ti t i on o n e r’ r ’ s j o in in i ng ng w a s a l so s o m a de de i n Panchayat book Raj proceeding but even then the respondent Surpanch has taken Law in his hand and after violating every norms of Law issued a n o th th e r l e t t e r o n 5 . 2 .2 . 2 0 08 0 8 a n d a c c e p te t e d j o i n in i n g o f r e s p o n de de n t n o .

is

complete illegal and arbitrary manner. 23. That the petitioner has not given any show cause or letter or served any c ha h a rg r g e w as as

g iv iv en en

a ny ny

o pp pp or or tu t u ni ni ty ty

n or or

h is is

c an a n di di da d a tu t u re re

h as as

b ee ee n

cancelled but even then ignored his joining he has been stopped from working by the respondent Surpanch reasoned based non Surpanch only. 24. That the petitioner has made representation before the authority but no has been taken on them. 2 5. 5 . T ha h a t t he h e e n ti ti r e a c ti t i on o n o f t h e r e sp s p on o n de d e n ts ts i s m os o s t i l le l e ga g a l , w r on on g a n d a r b it i t r a r y a n d a s s u c h t h e y n e e d i m m ed e d i a te t e l y i n f e r e nc n c e o f t h i s H o n ’ bl bl e Court.

26. That the petitioner has got no other efficacious remedy or remedies save and except to file this writ petition. 27. That the petitioner has never moved before this Hon’ble Court at any early stage. I t i s, s , t he h e re r e fo f o re r e , p ra r a ye y e d t ha h a t y ou o u r l or o r ds d s hi h i p m ay ay g ra r a ci c i ou o u sl s l y b e p le l e as a s ed e d t o i ss s s ue u e n ot o t ic i c es e s u po p o n t he he respondents respondents and after hearing the party or parties be  pl  p l e a s e d

to

allow

the

relief

as

prayed

for

in

 pa  p a r a g r a p h 2 o f t h i s w r i t p e t i t i o n a n d a f t e r i s s u a n c e of a writ of Mandamus Mandamus or any other appropriate writ or writs. O R  Pass such other order or orders as your lordships may deem fit and proper. And for this the petitioner shall ever pray. Place- Patna

Sd

Sd

Date- 2 may 2011

Advoc a te

Petitioner  

AFFIDAVIT

I , S um u m an a n J ha h a a ge g e d a bo b o ut u t 3 5 y ea e a rs r s ,s , s on o n o f S ri r i S at a t ya y a N ar a r ay a y an a n J ha ha , r e s i de de n t o f V i l la l a g e +p + p o s t – M a l ma m a l , P . SS - K a l ua ua h i , D i s t ri r i c t - Ma M a d hu h u b a ni ni , d o hereby solemnly solemnly affirm declare and say as follows: -

1.

T h at a t I a m pe p e ti t i ti t i on on er e r i n th t h is is c as a s e an a n d a m we w e ll l l a wa w a re r e o f th t h e fa f a ct c t s an an d circumstances circumstances of the case. That the contents of this petition have been read over and explained to me in Hindi which I have understood the same and the statements made i n p ar a r ag a g ra r a ph p h n os o s . - -a - a re r e t rru u e t o m y k no n o wl w l ed e d ge g e a nd n d t ho h o se s e m ad ad e i n  pa  p a r a g r a p h n o s … a r e t r u e t o i n f o r m a t i o n d e r i v e d f r o m r e c o r d a n d r e s t are by way of submission.

2.

Tha t the A nnexur e s a r e the t r ue phot ocopi es of the i r r es pe c ti ve originals.

Place- Patna

Sd

Date- 2-may-2011

Plaintiff

D R A F T F O R  F I L I N G A B A I L A P P L I C A T I O N : -

(Petitioner in Custody) IN THE COURT COURT OF SESSIONS SESSIONS JUDGE, PATNA PATNA

B.P. No. ………../06

In the matter of an application under  sections 439 and 440 of the Code of  Criminal Procedure 1973, And In the matter of 

 

Jitu @ Jitendra Kumar , son of Suresh Prasad, resident of Mohalla – Samastichak, P.S. Bhagwangunj, District – Patna …………………………………Petitioner  Versus The State of Bihar  ……………………………….Opposite Party.

To, The Hon’ble Judge of Sessions court at Patna and his companion Justices of the said Hon’ble Court.

The humble application on behalf of the  petitioner above named; MOST RESPECTFULLY SHEWETH:

1.

That th the pr present ap application is is be being fi filed fo for gr granting ba bail to to th the pe petition in in connection with Gandhi Maidan P.S. Case No.311/2006 filed under section 379 of the IPC.

2.

That th the pe petitioner ha has ne never mo moved be before th this Ho Hon’ble Co Court or or be before Hi High Court for either anticipatory bail or regular bail at any early stage or stages in the present case.

3.

That the case of prosecution has been filed by one Dhirendra Kumar stating that at about 12 noon of 21-09-2006 he had visited the office of ICICI Prudential at Forth Floor, Uma Complex.

4.

That it it ha has be been fu further st stated th that he he ha had st stopped his mo motorcycle He Hero-Honda  bearing number JH-02B-8493 below the apartment and when he returned at about a bout 1.30 P.M. found found that his motorcyc motorcycle le was not there. there. He searche searched d his motorcyc motorcycle le & when when got no information ,lodged this FIR about theft against unknown criminals. A photocopy of the FIR is being annexed here to

and

marked

application.

as

Annexure-1

to

this

5.

That the petitioner is innocent and has committed no offence.

6.

That the present petitioner was arrested by the police in S.K. Puri Police Case  No. 173/ 2006 U/S 414,420,467,471, 414,420,467,471, 120 (B) I.P.C. in which the theft motorcycle of the  present case has been alleged to be recovered. The petitioner was arrested by the police on 09-10-2006. In the present case the petitioner has been granted bail.

7.

That, the aforesaid facts have been acknowledged by the police & the learned court of C.J.M. vide order dated 19-10-2006 in the present Case i.e. Gandhi Maidan P.S. Case No. 311/2006(GR No. 4361/2006). The learned court has demanded the remand & issued production production Warrant Warrant in the present case on 19-10-200 19-10-2006 6 itself as such he is in custody since 19-10-2006.

8.

That, th the pe petitioner ha has be been al also made ac accused in in an another ca case na namely Ko Kotwali P.S. Case No.428/2006 against unknown U/S 379 I.P.C. by the Police, but in the said case he has been granted bail by the court of C.J.M. itself as police has submitted final form.

9.

That th the pe petitioner is is in innocent an and fa falsely implicated in in this me merely on on su suspicion.

10.

That th the pe petitioner is is in in cu custody si since 09 09-06-2006 in in S. S.K.Puri P. P.S. Ca Case No No. 173/2006, his P.W. was issued by the learned court of C.J.M. in the present case i.e. Gandhi Maidan P.S. Case No.311/ 2006 on 19-10-2006 but his remand has been made by the police only on 15-05-2008, as such he is in custody since 19-10-2006 The photocopy of the said order passed  by learned C.J.M., patna is being annexed

herewi ewith

and

marked

as

Annexure – 2.

11.

That the petitioner is not named in the FIR .The police have arrested him without any material.

12.

That th there is is no no ch chance of of ab absconding to to th the pe petitioner in in ca case if if ba bail sh shall be be granted to him.

13.

That th the pe petitioner be belongs to to a respectable fa family an and is is re ready to to fu furnish ba bail  bond to the satisfaction of your honour. honour.

It is, therefore, prayed that honour may graciously be  pleased to grant the bail in connection with Gandhi Maidan P.S. Case No. 311/06 pending before the court of learned learned C.J.M., C.J.M., Patna Patna to the satisfac satisfactio tion n of

your  your 

honour  And/or  Pass such order or orders as your lordships may deem fit and proper. And for this the petitioner shall ever pray.

Place- Patna

Sd

Sd

Date- 2 may 2011

Advoc a te

Petitioner  

AFFIDAVIT

I, Jiten Jitendr draa Kuma Kumarr , son son of Sures Suresh h Prasa Prasad, d, resid residen entt of Moha Mohall llaa – Sama Samast stich ichak ak,, P.S. P.S. Bhagwangunj, District – Patna do hereby solemnly affirm and state as follows:1. That That I am petition petitioner er in this this case and as such such I am well acquai acquainte nted d with the the facts and and circumstances of this case. 2. That I have have read and understo understood od the contents contents of this this petition petition and the statemen statementt made in paragr paragraph aph Nos. Nos. ...... ......... ...... ...... ...... ...... ...are are true true to my knowle knowledge dge and those those made made in

 paragraph No. ........................are ........................are true to my information derived from the records of  this case and the rest are by way of submissions before this Hon’ble Court. 3. That the the annexure annexure are are true/photo true/photo copies copies of of their respecti respective ve originals. originals.

Sd. Petitioner.

D R A F T F O R  F I L I N G A C I V I L S U I T : -

IN THE HIGH COURT OF JUDICATURE AT PATNA

SUIT NO. ________ OF 2011

In the matter of suit filed under  Order XXI, Rule 58(2) C.P.C And In the matter of  Ramkumar Singh, S/o Shri. Deokumar Singh, resident of Danapur Cantt. P.O Danapur, Patna. ....................................Plaintiff  v. 1. Bibhuti Thakur, S/o Late Ashok Thakur, resident of Punaichak Road, P.O Punaichak, Patna. 2. Amarsingh Narayan, S/o Kameshwar Narayan, resident of Patliputra Colony, P.O Patliputra, Patna. ...................................Defendants

To, The Hon’ble Mrs. Rekha M. Doshit, the Hon’ble Chief Justice of the High Court of Judicature at Patna and his companion Justices of the said Hon’ble Court. The humble petition is on behalf  of the plaintiff mentioned above; MOST RESPECTFULLY SHEWETH:

1 . T h a t t he h e p l a i n ti ti f f i s o w n e r a n d i n p os o s s e s s io io n o f t h e h o u se s e n o . 4 05 05 , s t r e et et  Na  N a l a R o a d i n t h e c i t y o f P a t n a . A correct plan of the said house is filed herewith as Annexure A. 2 . T h e d e f en en d a nt nt N o 1 i n e x e cu c u t i on on o f h i s d e c r e e a g a in i n s t d e f e nd nd a nt nt n o 2 f o r   R s . 3 50 5 0 00 0 0 ( wi wi t h c o st s t s ) N o. o . 1 22 22 3. 3 . o f 2 00 0 0 9 i n s u it it e n ti ti t le l e d r a m v s h ay ay m decided by district court, Patna got the house mentioned in para no 1 attached as a preliminary step to its sale by court. 3 . T h a t t he h e p l a i n ti ti f f f i l e d a n o b je j e c t io i o n u n d er e r o r d e r X X I, I , R u l e 5 8 ( 5 ) C . P .C .C ,  pr  p r o t e s t i n g a g a i n s t t h e s a i d a t t a c h m e n t o n t h e g r o u n d t h a t t h e s a i d h o u s e  be  b e l o n g e d t o t h e p l a i n t i f f a n d w a s i n h i s p o s s e s s i o n . 4 . T ha h a t t he h e e xe x e cu c u ti t i ng n g c ou o u rt r t d is i s mi m i ss s s ed e d t he h e p la l a in i n ti t i ffff ’s ’ s o bj b j ec e c ti t i on o n a ft f t er er a summary investigation. 5. That the plaintiff had had purchased purchased this house house from defendant defendant no. no. 2 by a sale d ee e e d p ri r i or o r t o t he h e d ec e c re r e e p as a s se s e d i n f av a v ou o u r o f d ef e f en e n da d a nt n t n o 1 a ga g a in i n st st defendant no 2 on payment of rs 450000 as consideration thereof. The whole of this amount was paid before the sub-registrar. 6 . T h a t t he h e p l a i nt nt i f f i s a b o n a f i d e p ur u r c h as a s e r f o r v a lu l u e . T h e d e fe fe n d an an t n o 2 w a s e n t i t le l e d t o s e l l t h e s a i d h o u s e t o w h om o m s o ev e v e r h e w a n te te d p r i o r t o i t s attachment. 7 . T h a t t he h e p l a i nt n t i f f i s e n t it i t l e d t o a d e c l ar a r a t i on on t h a t t h e s a i d h ou o u s e b e l on on g s to the plaintiff and that it is not liable to be sold in execution of the decree passed in favour of the defendant no 1against defendant no 2

8 . T h a t t h e c o ur ur s e o f a c t i o n a r o us us e w h e n t h e e x e cu c u t i ng ng d i d n o t e n t e rt rt a i n t h e objection of of the plaintiff plaintiff under order order XXI, order order 58 , C.P.C C.P. C filed in that court in the city of Patna. Hence the suit is in time and the court has  ju  j u r i s d i c t i o n . 9 . T ha ha t t he he v al a l ue ue o f t he he s ui u i t f or or p ur ur po p o s es e s o f c ou o u rt r t f ee e e i s f ix i x ed e d u nd nd er er   Schedule II, article 17 of court fees act and a court fee is paid thereon. That the value of the suit for purposes of jurisdiction is 450000 which is the market value of the house. It is, therefore, prayed that your honour may graciously be pleased to pass a decree setting aisde the order passed by the execution court a n d gr gr a n t a d ec e c l a r at at i o n t h a t h ou ou se se  pa  p a s s e d

b el e l on on gs gs in

the

to

t he he

t h e s ai ai d

p la la in i n ti t i ff ff ,

circumstances

of

be t he

case; And/Or  Pass such order or orders as your lordships may deem fit and proper. And for this the petitioner shall ever pray.

Place- Patna

Sd

Sd

Date- 2 may 2011

Advoc a te

plaintiff  

AFFIDAVIT

I, Ramkumar Singh, S/o Shri. Deokumar Singh, resident of Danapur Cantt. P.O Danapur, Patna., the above named plaintiff do hereby verify that: 1. The The cont conten ents ts of paras paras no. 1-7 are true true to my know knowle ledg dgee and and the the cont conten ents ts of the the remaining paras are based on legal advice from my advocate which I believe o be true. 2 . T ha h a t I a m p e ti ti t io i o ne n e r i n t h i s c a se s e a n d a m w e l l a wa w a r e o f t he h e f a c t s a nd nd circumstances circumstances of the case. 3 . T ha h a t t he h e A nn n n ex e x ur ur es e s a re r e t he h e t rru u e p ho h o to t o co c o pi pi es e s o f t he h e ir i r r es e s pe p e ct c t iv iv e originals.

Place- Patna

Sd

Date- 2-may-2011

Plaintiff

 

D R A F T F O R  F I L I N G A L E A S E : -

LEASE DEED OF LAND

1. THIS THIS DEED DEED OF LEAS LEASE E made made at Rajg Rajgir ir this this 4th 4th day day of May, May, 2010 2010,, betw betwee een n  Narendra kumar Singh son of Mohan Kumar Singh resident of Vill+P.OSuhawanpur, P.S-Rajgir,Distt-Nalanda, hereinafter referred to as "the Lessor" of the ONE PART and

2. Hemant Hemant Rai Prakash Prakash son of Mohan Mohan Rai Prakash Prakash resident resident of of VillVill- Fulhara P.OP.O- Getaa Getaa deodha,P.S-Hasan Pur Distt-Samastipur hereinafter referred to as "the Lessee" of the the OTHER PART.

3. WHEREA WHEREAS S the Lessor Lessor is the exclus exclusive ive owner owner of piece of land bearin bearing g Plot No-105 No-105 situated at nayay nagar mithapur near bus stand,Patna-1.Bihar ( more particularly descri described bed in the Schedule Schedule A hereun hereunder der writte written n ), herein hereinaft after er referred referred to as the demised premises.

4. AND WHER WHEREAS EAS the the Lessor Lessor has agreed agreed to grant grant to the Lessee Lessee a lease in respec respectt of  the said premises for a period period of 5years, 5years, vide Agreement of premises lease dated 4 th May 2010 hereinafte hereinafterr referre referred d to as "the "the said agreement agreement"" subjec subjectt to terms terms and conditions laid down in the said agreement.

AND WHEREAS WHEREAS the lessor has made out his marketable marketable title to the demised premises premises free from all encumbrances, claims or reasonable doubts.

 NOW THIS DEED WITNESSETH WITNESSETH AS FOLLOWS: FOLLOWS:

1. In pursua pursuance nce of the said agreemen agreementt and in consid considerat eration ion of the rent hereby hereby granted granted and the Lessee's covenants hereinafter mentioned, the Lessor hereby demise unto the lessee the demised premises, to hold the demised premises unto the Lessee (and his heirs, executors, administrators and assigns) for a period of 5 years commencing from the 9th day of December, 2010, 2010, at a yearly rent of the year for which it is due, the first of such yearly rent shall be paid on 5 June 2011 and the subsequent rent to  be paid on or before the 31st day of March every succeeding year regularly. 2. The The lesse lesseee shal shalll cons constr truc uctt a suit suitab able le hous housee and and othe otherr stru struct ctur ures es on the demi demised sed  premises hereby demised according to and in conformity with the map or plans hereto annexed, which has already been sanctioned by the Municipal Corporation of  Patna within a period of one year from the date hereof. 3. The Lessee hereby hereby agrees agrees to the followi following ng covena covenants: nts: a. To pay rent rent hereby hereby reserv reserved ed on the day day and in the manne mannerr aforesaid aforesaid to the the lessor.  b. To pay all taxes, cess, impositions, assessments, ass essments, dues and , duties payable in respect of the demised premises and the building to be constructed thereon to the Government of Bihar or the Municipal Corporation or any other local authority or public body. c. Not to sub-let sub-let,, sell, dispo dispose se of or assign the the demised demised premise premisess or the house constructed on the demised premises without the consent of the lessor in writing. d. To keep the buildi building ng constr construc ucte ted d on the demised demised premise premisess in good good and and tenantable condition. e. To permi permitt the the less lessor or or his his duly duly autho authori rise sed d agen agentt or agent agentss to ente enterr the the demised premises at all convenient times for inspection of the building. f. To insur insuree and and to keep keep insure insured d the the buil buildi ding ng that that may may be constr construc ucte ted d on the demised demised premises premises against the the loss or damages damages by d fire, earthquak earthquake, e, riot or  affray with an insurance company approved in writing by the lessor in the  joint names of lessor and lessee for an amount which shall not be less than Rs.15000/-.

g. To use the the demised demised premises premises for construc construction tion of house house which which will will be used for  for  residential purpose only. h. Not Not to use the the demi demised sed premi premises ses or the the buil buildi ding ng constr construc ucte ted d or any part thereof for any illegal purpose. 4. The Lessor hereby agrees to the the followi following ng covenan covenants: ts: a. The The less lessor or is abso absolu lute tely ly seiz seized ed and and poss posses esse sed d of or othe otherw rwis isee well well and and sufficiently entitled to the demised premises and is having full power and absolute authority to demise unto the lessee the demised premises.  b. The lessee shall peacefully and quietly hold, possess and enjoy the demised  premises, during the term of lease without any interruption, disturbance, claims or demand whatsoever by the lessor or any person or persons claiming under him, subject however, the lessee paying the said yearly rent on the due date datess ther thereo eoff and and in the the mann manner er here herein in prov provid ided ed and and obse observ rvin ing g and and  performing the covenants, conditions and stipulations herein contained and on his part to be observed and performed. c. Not Not to unre unreas ason onab ably ly with withho hold ld his his cons consen entt to any any subsub-le leas ase, e, tran transf sfer er or  assignment of the demised premises, if intended to be made by the lessee. 5. It is hereby hereby agreed agreed that if if default default is made by by the lessee lessee in payment payment of the the rent for any three three year years, s, or in obse observ rvan ance ce and and perf perfor orma manc ncee of any any of the the cove covena nant ntss and and stipulations hereby contained and on the part to be observed and performed by the lessee, then on each such default, the lessor shall be entitled in addition to or in the alternative to any other remedy that may be available to him at his discretion, to terminate the lease and eject the lessee from the premises demised and from the  building, that may have been constructed thereon; and to take possession thereof as full and absolute owner thereof, provided that a notice in writing shall be given by the lessor to the lessee of his intention to terminate the lease and to take possession of  the demised premises but if the arrears of rent are paid or the lessee comply with or  carry out the covenants and conditions or stipulations, within fifteen days from the service of such notice, then the lessor shall not be entitled to take possession of the said premises and building.

AND IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:

a. On the expi expiry ry of the the term term here hereby by creat created ed and and subj subjec ectt to the the obse observ rvan ance ce and and  performance of the covenants, conditions and stipulations herein contained and on his part to be observed and performed, the lessee will have the option to renew the lease of the demised premises for a further period of 5 years, provided he gives a notice to the effect in writing by registered post to the Lessor of his intention to do so at least least thre threee calen calenda darr mont months hs befo before re the the term termin inati ation on of the the prese present nt lease lease;;  provided that the rent payable by the lessee les see to the lessor during the extended e xtended time of  the lease shall be Rs.1000/-per annum, which will include the rent of the demised  premises and of the building constructed thereon, which an the expiry of term of the lease, lease, shall shall vest vest in and be the absolute absolute property property of the Lessor as herein hereinabo above ve mentioned. mentioned. After After the expiry of the said period period of 5years, 5years, the Lessee shall not be entitled to exercise further option of renewal of the lease and shall deliver the demi demised sed prem premis ises es and and the the buil buildi ding ng cons constr truc ucte ted d there thereon on to the the lesso lessorr in good good condition as hereinbefore provided.  b. The Lessee shall be entitled to purchase the reversion during the subsistence of this demi demise, se, in resp respect ect of the the demi demised sed prem premise isess on the the paym paymen entt to the the Lesso Lessor, r, a consideration consideration to be agreed upon between the Lessor and Lessee and the lessor shall execute conveyance in respect of the reversion of demised premises purchased by the Lessee in favour of the lessee or his nominee or nominees; provided that the lessee may be entitled to purchase a portion or portion of the reversion in respect of  any portion of the demised premises, the rent hereby agreed to be paid by the Lessee to the Lessor shall be proportionately reduced. c. On the the expi expiry ry of the the term term here hereby by crea create ted d or earl earlie ierr dete determ rmin inat atio ion n unde underr the the  provisions hereof, the lessee will hand over the peaceful and vacant possession of  the demised premises and building constructed thereon to the Lessor in a good condition.

6. This Lease Lease Deed shall be executed executed in duplicat duplicate. e. The origina originall shall be retaine retained d by the Lessor and the duplicate by the Lessee. 7. The The stamp duty duty and all other other expenses expenses in respect respect of this Lease Lease Deed and dupli duplicat catee thereof shall be borne and paid by the Lessee.

8. The The marginal marginal notes notes and the catch catch lines lines hereto hereto are meant meant only for conven convenien ience ce of  references and shall not in any way be taken into account in the interpretation of  these presents.

IN WITNESS WHEREOF, the Lessor has set its hand unto these presents and a duplicate hereof and the Lessee has caused its common seal to be affixed hereunder and a duplicate hereof on the day, month and year first hereinabove written.

The Schedule A above referred to

Signed and delivered by the within named lessor 

Signed and delivered by the within named lessee

WITNESSES; 1. ________________

2. ___________________