WRIT

OF

PROHIBITION

TABLE OF CONTENT

Topic 1. INTRODUCTION----------------------------------------------------------------------2. ORIGIN OF WRITS--------------------------------------------------------------------3. HISTORICAL BACKGROUND------------------------------------------------------4. WRITS OF CERTIORARI AND PROHIBITION----------------------------------5. WRIT OF MANDAMUS---------------------------------------------------------------6. WRIT OF QUO WARRANTO---------------------------------------------------------7. HABEAS CORPUS----------------------------------------------------------------------8. THE DISTINCTION BETWEEN MANDAMUS AND PROHIBITION------9. CONCLUSION--------------------------------------------------------------------------

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 agencies and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary is dynamically carving the principles 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. 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 need not cry, if the courts do justice and perform the substantial role. That is the essence of justice. It is submitted, the trend is to read the social justice and to translate in reality. The welfare State has to discharge its duty fairly without any arbitrary 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,

licenses and mineral rights etc. The dispenser of special services cannot therefore 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 Kings 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 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 exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have failed to exercise the jurisdiction 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 Honble Supreme court in A.K.Kraipak 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 Customs2, 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 citizens 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 Halsburys 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 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.
1 2

AIR 1970 SC 150 AIR 1960 Cal 1

WRIT OF QUO WARRANTO Quo Warranto means 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 Rao3, 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 the body. The incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellants 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 can be filed by any person on behalf of the other 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 satisfactory to galvanize the court into examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla5, it was observed that the writ of Habeas Corpus is a 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 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, it has been marked that, There can be no doubt that the Fundamental Rights, guaranteed to the citizens are a significant feature of our 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 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 and enacted in national and public interest and therefore they cannot be waived. 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 individuals 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 reasonableness. Mostly, the courts review on two counts; firstly whether the 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 limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play substantial 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 and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial flavour or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of 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 Padfields case: In England in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non-speaking order, that is, an order which on

the face of it did not specify the 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 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. Vardichand8, on account of the public nuisance created in the area by the corporation in not maintaining the drainage system and the dirty water stinking had clogged around which obviously created nuisance at the 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 remedy available to a person aggrieved Else why did it set up a committee 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 to decide the 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 authority or public servant from usurping the public office on account of 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 is conceived to be very vital. It is issued against the wrongful detention 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 Singh10 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 courts order is still in effect and binding on the parties until the trial court 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

10

I.L.R 1958 Bom 113 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.4When the ruling at issue is appropriate for mandamus review and involves a matter of the trial courts 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 partys entire action or defence so that, in either The writ of prohibition is more limited in scope than mandamus, as it is directed specifically at whether a lower court has jurisdiction over some matter. The 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 adequate remedy. The extreme caution and used only in cases of extreme necessity. 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 declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of law.

D RAFT F OR F ILING A W RIT :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: Suman Jha, son of Sri Satya Narayan Jha, resident of Village+post Malmal, P.S- Kaluahi, District-Madhubani ..Petitioner. Versus 1. The State of Bihar through secretary development of rural department, Government of Bihar and Panchayat Raj. 2. The Director, department of Panchayat Raj, government of Bihar, Patna. 3. 4. The Panchayati Raj Officer, Madhubani, P.O. +P.S.-Madhubani. The Block development Officer, Kaluahi Block at P.O. +P.S-Kaluahi, District-Madhubani. 5. The Sarpanch, Gram Kahari, Pursaulia, Gram Pursaulia, Post-Kaluahi, District-Madhubani. 6. Inamul Hauqe S/O Md. Zahrul Haque, resident of Village- Haripur, Kazi Tol, P.O.- Bakshi Tol, District - Madhubani -----------------Respondents. To,

The Honble Mrs. Rekha M. Doshit, the Honble Chief Justice of the High Court of Judicature at Patna and his companion Justices of the said Honble Court. The humble petition on behalf of the petitioner above named. MOST RESPECTFULLY SHEWETH :1. That this application is being filed for directing the respondents to sent his name as Naya Mitra for the Gram Katchari Pursaulia before the

2.

Panchayati Raj Authorities, which has been stopped by the respondent No. 5 in most arbitrary, illegal manner, even after acceptance of his joining as Naya Mitra.

3.

That the petitioner prays for following: RELIEFS

I.

That the respondents be directed to sent his name as Naya Mitra 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.

The respondents are directed to pay the petitioner who has been selected and joined as Nayya Mitra for Gram Katchari Pursaulia.

III.

That, the respondent be directed to stop the functioning of respondent no. 6 as Naya Mitra for Panchyat Pursaulia , if at all his joining has been accepted by the respondents for which the petitioner has already joined on 14-01-2008.

That any other relief or reliefs may be allowed, which may be just proper and equitable in the opinion of this Honble Court.

4.

That the petitioner is resident of Gram + Post- Malmal, P.S + BlockKaluahi, District- Madhubani. He is a law graduate and practicing lawyer at Madhubani since 2005.

5.

That the petitioner is a Law Graduate and he has participated in the process for the appointment of Nayya Mitra according to Bihar Gram 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. 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

13.9.2007 is being annexed herewith and marked as Annexure-1. 6. That the petitioner had received a letter from Surpanch Gram Katchari Pursaulia dated 10.1.2008 in which it has been intimated that he has been selected as Gram Katchari Nayya Mitra in Gram Katchari Pursaulia under Kaluahi Block according to Bihar Gram Katchari Nayya Mitra Niyamawali 2007. It has further been stated in this letter 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

directed that he may gave his joining in between 10.1.2008 to 14.1.2008. The Photo Stat copy of the letter dated 10.1.2008 issued by Surpanch Gram Katchari is being annexed herewith and marked as Annexure-2. 7. That after receiving this letter from the respondents Surpanch

Katchari, Pursaulia the petitioner has visited to the office of Gram Katchari Pursaulia but on that very day the Surpanch was not available thereafter the petitioner has given his consent letter on 14.1.2008 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 dated 14.1.2008, joining letter dated 14.1.2008 are being annexed herewith and marked as Annexure-3 & 4. 8. That it is stated that the petitioner has also communicated about his joining on the post of Nayya Mitra Gram Katchari, Pursaulia village to the Block development officer Kaluahi Block, District-Madhubani. In this regard the petitioner has also sent other letter on 16.1.2008 to Panchayat Raj Officer, District- Madhubani. The Photo Stat copy of the letter dated 14.1.2008 and 16.1.2008 communicated to Block development officer, Kaluahi

and Panchayat Raj Officer, DistrictMadhubani are being annexed herewith and marked as Annexure-5 & 5A. 9. That it is pertinent to mention here that information according to information of the petitioner on the post of Nayya Mitra Gram 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. 10. That it is stated that after joining as Nayya Mitra in Village Gram Katchari Raj, Pursaulia the petitioner has met with Surpanch of 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. 11. That later on in the month of Feb. 2008 the petitioner got information that the respondents Surpanch Gram Katchari, Pursaulia is interested for other person as Gram Katchari Nayya Mitra so he filed an application under Right to Information Act for taking information according to appointment of Nayya Mitra Gram Panchayat Pursaulia on 15.3.2008. He has also demanded the proceeding Book of Gram Panchayat dated 14.1.2008 vide his letter dated 15.3.2008. The photo Stat copy of the letter sent to BDO Kaluahi by the petitioner dated 15.3.2008 under Right to Information

Act is being annexed herewith and marked as Annexure-7. 14. That thereafter the public information officer cum additional BDO, Kaluahi sent to letters no. 288 dated 20.3.2008 and 289 dated 20.3.2008 by which he has called the petitioner on 26.3.2008. 15. Thereupon the petitioner visited in the office on 26.3.2008 and marked total 24 pages upon which the information officer sent another letter no. 373 dated 4.4.2008 by which he has demanded total 48 Rupees and lastly the information officer has provided the concerned papers 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 of Nayya Mitra Gram Katchari counseling has been taken place and according to the proceeding dated30.7.2007 it appears that there were in total 65 candidates applied for the post of Nayya Mitra but in the 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 also been decided that persons who got the highest no. shall got employment and letter in this regard shall be issued to the selected candidates. If the selected candidates shall not join within prescribed period then his candidature shall automatically cancelled and next person shall be called for the employment. 18. That according to preceding dated 7.11.2007 it appears that the 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

joining from 7.11.2007 to 7.12.2007 but no one can forward to join. 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 proceeding book of Gram Katchari Nayya Mitra Neojan Samiti dated

7.1.2008 which has been taken place in the Chairman ship of Surpanch namely Ram Bilash Sah in which it has been decided that the employment letter shall be issued to the 13 candidates as per the list but no one has turn-up his joining. So it has been decided that the appointment letter be issued to the next candidates. 19. That form the proceeding book it appears that on 10.1.2008 employment letter has been issued to the present petitioner which has been received by the petitioner. Thereupon the petitioner visited in the office of Gram Katchari, Pursaulia where his joining was accepted. The typed copy of the proceeding book of Gram Kachahari and dated 7.1.2008, is being as

10.1.2008 annexed

14.1.2008 and

herewith

marked

Annexure-8, 8/A & 8/B. 20. That the petitioner was ignored since the date of his joining on the post of Nayya Mitra by the Surpanch Gram Katchari who was demanded 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

and whose candidature was already rejected by the Gram Katchari Nayya Mitra Niyojan Samiti. 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 petitioner the respondent Surpanch Gram Katchari, Pursaulia has taken joining of private respondent. 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 has already joined on 14.1.2008.He has intimated about his joining to the BSO, Kaluahi Block, district Panchayat Raj Officer , Madhubani but ignoring the acknowledgement of the petitioners joining was also made in Panchayat book Raj proceeding but even then the respondent Surpanch has taken Law in his hand and after violating every norms of Law issued another letter on 5.2.2008 and accepted joining of respondent no. complete illegal and arbitrary manner. 23. That the petitioner has not given any show cause or letter or served any charge was given any opportunity nor his candidature has been 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. 25. That the entire action of the respondents is most illegal, wrong and arbitrary and as such they need immediately inference of this Honble Court. is

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 Honble Court at any early stage. It is, therefore, prayed that your lordship may graciously be pleased to issue notices upon the respondents and after hearing the party or parties be pleased to allow the relief as prayed for in

paragraph 2 of this writ petition and after issuance of a writ of Mandamus or any other appropriate writ or writs. OR Pass such other order or orders as your lordships may deem fit and proper. And for this the petitioner shall ever pray. Place- Patna Date- 2 may 2011 Sd Advocate Sd Petitioner

AFFIDAVIT I, Suman Jha aged about 35 years,son of Sri Satya Narayan Jha, resident of Village+post Malmal, P.S- Kaluahi, District-Madhubani, do hereby solemnly affirm declare and say as follows: -

1.

That I am petitioner in this case and am well aware of the facts and 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 in paragraph nos. --are true to my knowledge and those made in paragraph nosare true to information derived from record and rest are by way of submission.

2.

That the Annexures are the true photocopies of their respective originals.

Place- Patna Date- 2-may-2011

Sd Plaintiff

D RAFT F OR F ILING A B AIL A PPLICATION :-

(Petitioner in Custody) IN THE COURT OF SESSIONS JUDGE, 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 Honble Judge of Sessions court at Patna and his companion Justices of the said Honble Court.

The humble application on behalf of the petitioner above named; MOST RESPECTFULLY SHEWETH: 1. That the present application is being filed for granting bail to the petition in connection with Gandhi Maidan P.S. Case No.311/2006 filed under section 379 of the IPC. 2. 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 has been further stated that he had stopped his motorcycle Hero-Honda bearing number JH-02B-8493 below the apartment and when he returned at about 1.30 P.M. found that his motorcycle was not there. He searched his motorcycle & when got no information ,lodged this FIR about theft against unknown criminals. A photocopy of the FIR is being annexed here to and marked as Annexure-1 to this application. That the petitioner has never moved before this Honble Court or before High Court for either anticipatory bail or regular bail at any early stage or stages in the present

5. 6.

That the petitioner is innocent and has committed no offence. That the present petitioner was arrested by the police in S.K. Puri Police Case No. 173/ 2006 U/S 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 Warrant in the present case on 19-10-2006 itself as such he is in custody since 19-10-2006.

8.

That, the petitioner has been also made accused in another case namely 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. 10.

That the petitioner is innocent and falsely implicated in this merely on suspicion. That the petitioner is in custody since 09-06-2006 in S.K.Puri P.S. Case 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 herewith 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 there is no chance of absconding to the petitioner in case if bail shall be granted to him.

13.

That the petitioner belongs to a respectable family and is ready to furnish bail bond to the satisfaction of your 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 C.J.M., Patna to the satisfaction of 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 Date- 2 may 2011 Sd Advocate Sd Petitioner

AFFIDAVIT I, Jitendra Kumar , son of Suresh Prasad, resident of Mohalla Samastichak, P.S. Bhagwangunj, District Patna do hereby solemnly affirm and state as follows:1. That I am petitioner in this case and as such I am well acquainted with the facts and circumstances of this case. 2. That I have read and understood the contents of this petition and the statement made in paragraph Nos. .....................are true to my knowledge and those made in

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

Sd. Petitioner.

D RAFT F OR F ILING A C IVIL S UIT :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 Honble Mrs. Rekha M. Doshit, the Honble Chief Justice of the High Court of Judicature at Patna and his companion Justices of the said Honble Court. The humble petition is on behalf of the plaintiff mentioned above; MOST RESPECTFULLY SHEWETH:

1. That the plaintiff is owner and in possession of the house no.405, street Nala Road in the city of Patna. A correct plan of the said house is filed herewith as Annexure A. 2. The defendant No 1 in execution of his decree against defendant no 2 for Rs. 35000(with costs) No.1223. of 2009 in suit entitled ram v shaym decided by district court, Patna got the house mentioned in para no 1 attached as a preliminary step to its sale by court. 3. That the plaintiff filed an objection under order XXI, Rule 58 (5) C.P.C, protesting against the said attachment on the ground that the said house belonged to the plaintiff and was in his possession. 4. That the executing court dismissed the plaintiffs objection after a summary investigation. 5. That the plaintiff had purchased this house from defendant no. 2 by a sale deed prior to the decree passed in favour of defendant no 1 against defendant no 2 on payment of rs 450000 as consideration thereof. The whole of this amount was paid before the sub-registrar. 6. That the plaintiff is a bona fide purchaser for value. The defendant no 2 was entitled to sell the said house to whomsoever he wanted prior to its attachment. 7. That the plaintiff is entitled to a declaration that the said house belongs 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. That the course of action arouse when the executing did not entertain the objection of the plaintiff under order XXI, order 58 , C.P.C filed in that court in the city of Patna. Hence the suit is in time and the court has jurisdiction. 9. That the value of the suit for purposes of court fee is fixed under 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 and grant a declaration that house belongs to the the said be

plaintiff,

passed in the circumstances of the 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 Date- 2 may 2011

Sd Advocate

Sd 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 contents of paras no. 1-7 are true to my knowledge and the contents of the remaining paras are based on legal advice from my advocate which I believe o be true. 2. That I am petitioner in this case and am well aware of the facts and circumstances of the case. 3. That the Annexures are the true photocopies of their respective originals.

Place- Patna Date- 2-may-2011

Sd Plaintiff

D RAFT F OR F ILING A L EASE :LEASE DEED OF LAND

1. THIS DEED OF LEASE made at Rajgir this 4th day of May, 2010, between 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 Rai Prakash son of Mohan Rai Prakash resident of Vill- Fulhara P.O- Getaa deodha,P.S-Hasan Pur Distt-Samastipur hereinafter referred to as "the Lessee" of the OTHER PART. 3. WHEREAS the Lessor is the exclusive owner of piece of land bearing Plot No-105 situated at nayay nagar mithapur near bus stand,Patna-1.Bihar ( more particularly described in the Schedule A hereunder written ), hereinafter referred to as the demised premises. 4. AND WHEREAS the Lessor has agreed to grant to the Lessee a lease in respect of the said premises for a period of 5years, vide Agreement of premises lease dated 4 th May 2010 hereinafter referred to as "the said agreement" subject to terms and conditions laid down in the said agreement. AND WHEREAS the lessor has made out his marketable title to the demised premises free from all encumbrances, claims or reasonable doubts.

NOW THIS DEED WITNESSETH AS FOLLOWS: 1. In pursuance of the said agreement and in consideration of the rent hereby 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, 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 lessee shall construct a suitable house and other structures on the demised 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 agrees to the following covenants: a. To pay rent hereby reserved on the day and in the manner aforesaid to the lessor. b. To pay all taxes, cess, impositions, assessments, 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, sell, dispose of or assign the demised premises or the house constructed on the demised premises without the consent of the lessor in writing. d. To keep the building constructed on the demised premises in good and tenantable condition. e. To permit the lessor or his duly authorised agent or agents to enter the demised premises at all convenient times for inspection of the building. f. To insure and to keep insured the building that may be constructed on the demised premises against the loss or damages by d fire, earthquake, 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 demised premises for construction of house which will be used for residential purpose only. h. Not to use the demised premises or the building constructed or any part thereof for any illegal purpose. 4. The Lessor hereby agrees to the following covenants: a. The lessor is absolutely seized and possessed of or otherwise well 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 dates thereof and in the manner herein provided and observing and performing the covenants, conditions and stipulations herein contained and on his part to be observed and performed. c. Not to unreasonably withhold his consent to any sub-lease, transfer or assignment of the demised premises, if intended to be made by the lessee. 5. It is hereby agreed that if default is made by the lessee in payment of the rent for any three years, or in observance and performance of any of the covenants 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 expiry of the term hereby created and subject to the observance 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 three calendar months before the termination of the present lease; provided that the rent payable by the lessee to the lessor during the extended 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, shall vest in and be the absolute property of the Lessor as hereinabove mentioned. After the expiry of the said period of 5years, the Lessee shall not be entitled to exercise further option of renewal of the lease and shall deliver the demised premises and the building constructed thereon to the lessor in good condition as hereinbefore provided. b. The Lessee shall be entitled to purchase the reversion during the subsistence of this demise, in respect of the demised premises on the payment to the Lessor, a 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 expiry of the term hereby created or earlier determination under 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 Deed shall be executed in duplicate. The original shall be retained by the Lessor and the duplicate by the Lessee. 7. The stamp duty and all other expenses in respect of this Lease Deed and duplicate thereof shall be borne and paid by the Lessee.

8. The marginal notes and the catch lines hereto are meant only for convenience 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. ___________________