Priyank M Kharge vs. Union Of INDIA - Karnataka High Court, 24 February 2021

Cause title — parties, addresses and appearances

- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2021 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 683 OF 2021 (T-RES-PIL) BETWEEN: PRIYANK M KHARGE S/O MALLIKARJUN KHARGE AGED ABOUT 42 YEARS R/AT No.440, 11TH MAIN SADASHIVNAGAR, RMV EXTENSION BENGALURU – 560 080 ... PETITIONER (BY SHRI ASHWIN C, ADVOCATE) AND: 1. UNION OF INDIA REP. BY ITS SECRETARY MINISTRY OF FINANCE NEW DELHI – 110 001 2. STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY/ ADDITIONAL CHIEF SECRETARY VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BANGALORE – 560 001 3. THE GOODS AND SERVICES TAX COUNCIL REP. BY SPECIAL SECRETARY JANPATH, CONNAUGHT PLACE NEW DELHI – 110 001 ... RESPONDENTS (BY SHRI MADAN PILLAI CGC FOR R1) - 2 - THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT NO.1 TO RELEASE THE ADDITIONAL FUNDS AND/OR COMPENSATION THAT THE RESPONDENT NO.2 IS ENTITLED TO ON ACCOUNT OF SHORT CREDITING OF CESS UNDER THE GOODS AND SERVICES TAX COMPENSATION AS OBSERVED BY COMPTROLLER AND AUDITOR GENERAL OF INDIA IN ITS REPORT FOR THE YEAR 2018-19 AND ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

ORDER We have perused the additional affidavit filed by the petitioner setting out his credential as a pro bono litigant. In view of what is stated in the affidavit, we have gone through the grievances made in this petition.

The only prayer made in this petition is for a writ of mandamus enjoining the first respondent to release additional funds and/or compensation to which the second respondent is entitled to on account of short crediting of cess under the Goods and Services Tax Compensation. Reliance is placed on a report submitted by the Comptroller and Auditor General of India. However, before seeking a writ of mandamus, the petitioner has not made any representation to the concerned respondent for redressal of his grievances. In that behalf, it is necessary to make a reference to paragraphs 24 and 25 of the judgment in the case of SARASWATI INDUSTRIAL SYNDICATE paragraphs read thus:

24.

As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 13, p. 106): “As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.”

25.

In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. These appeals must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs.

In view of the law laid down by the Apex Court, we decline to entertain this public interest litigation at this stage.

1 (1974) 2 SCC 630 However, it will be open to the petitioner to make a representation to the first respondent for redressal of his grievances made in this petition. At this stage, Sri Madan Pillai, the learned Central Government Counsel appears for the first respondent through video conferencing.

We, therefore, direct the first respondent to treat this writ petition as the representation of the petitioner. If no action is taken on the basis of the said representation within a reasonable time, it will be open for the petitioner to file a fresh petition in accordance with law.

Subject to what is observed above, the writ petition is disposed of. CHIEF JUSTICE JUDGE