Swapana Nand Das vs State Of Jharkhand And Ors

This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the petitioner has sought for direction upon the

respondent to pass reasoned order on the application filed by him on 24.11.2011.

It is the case of the petitioner that since he is protecting the forest for 32 years but no honorarium has been paid to the petitioner and its members.

According to the petitioner, the Chief Minister has also given a message for redressal of the grievance of the petitioner by way of ‘Sandesh’ as

would appear from Annexure-2 dated 15.11.2004 and, in pursuance thereof, demand has been made by submitting a representation on 24.11.2011 but

as yet no decision has been taken, therefore, the instant writ petition.

The State respondent has filed counter affidavit, seriously disputing the claim of the petitioner on the ground that merely on the basis of

‘Sandesh’ there is no vested right for getting honorarium in favour of the petitioner and as such, the present writ petition under Article 226 is not

maintainable.

Mr. Abhay Prakash, learned A.C to AAG has argued with vehemence that Article 226 only pertains, if the litigant would be able to show any

vested right but herein the writ petitioner is claiming the aforesaid benefit only on the basis of ‘Sandesh’ annexed as Annexure-2, which cannot

confer any vested right upon the petitioner, therefore, no direction may be issued upon the respondent as has been prayed in the writ petition.

This Court after having heard learned counsel for the parties and on perusal of the submission made in the writ petition, wherefrom it is evident that

the petitioner is claiming to work in protection of the forest area and as such he is claiming honorarium in lieu of such services.

Petitioner has riled upon a ‘Sandesh’. This Court after going across the said ‘Sandesh’ as has been annexed as Annexure-2, has found

therefrom that such message has been given by the Chief Minister vide dated 15.11.2004. It appears from the pleading that on the basis of the said

‘Sandesh’ the petitioner has raised a grievance by submitting representation before the authority and when it has not been adjudicated, the

present writ petition has been filed.

This Court, therefore, after going across the rival submissions as has been agitated by the parties in the present writ petition, is of the view that

Article 226 of the Constitution of India which can be invoked by the litigant only in case of violation of any fundamental right or against the non-

redressal of grievance, if legally vested.

It is not in dispute that before invoking the jurisdiction conferred under Article 226 of the Constitution of India, a demand is required to be made before

issuance of writ of mandamus, but the question of issuance of mandamus only arise, if the litigant would have any legal vested right or in case of any

infringement of fundamental right.

Here in, it is the admitted case of the petitioner that on the basis of ‘Sandesh’ given by the Chief Minister of the Jharkhand, demand has been

raised by submitting a representation on 24.11.2011.

The question is, can a ‘Sandesh’ confer any legal vested right upon the petitioner in the present scenario? The answer is in negative, since a

‘Sandesh’ cannot take a policy decision since a policy decision can only be said to be conferring any legally vested right if concurred by the

State Cabinet as an executive instruction.

In view of such legal position, this Court is of the view that even if any direction would be passed to the State authority, no purpose would be served

and therefore, declined to direct the authority to take decision on such representation since the result is known, as has been said hereinabove that the

representation is merely on the basis of ‘Sandesh’ having no legal vested right, therefore, no purpose would be served in relegating the matter to

the authority.

In view of the above, this Court is of the view that petitioner has failed to make out a case for passing any positive direction.

Accordingly, the writ petition stands dismissed.