IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3415 of 2010 1. HARIMOHAN JHA S/O SRI SHANKAR JHA R/O DUMARI KATASARI, P.S. SHYAMPUR BHATAHA, DISTT.- SHEOHAR Versus 1. THE STATE OF BIHAR 2. SECRETARY TO THE GOVERNMENT, PUBLIC HEALTH ENGINEERING DEPTT., BIHAR, PATNA 3. SECRETARY, PLANNING DEPTT., BIHAR, PATNA 4. SRI SURESH PRASAD SINGH S/O NOT KNOWN AT PRESENT POSTED AS DISTRICT MAGISTRATE, SHEOHAR 5. SHRI RAJEEV RATHAUR S/O NOT KNOWN AT PRESENT POSTED AS BLOCK DEVELOPMENT OFFICER, DUMARI KATASARI, DISTT.- SHEOHAR 6. ENGINEER-IN-CHIEF CUM SPECIAL SECRETARY, PUBLIC HEALTH ENGINEERING, BIHAR, PATNA 7. SUPERINTENDING ENGINEER, PUBLIC HEALTH ENGINEERING, ANCHAL MUZAFFARPUR, MUZAFFARPUR 8. EXECUTIVE ENGINEER, PUBLIC HEALTH ENGINEERING DEPTT., SITAMARHI DIVISION, SITAMARHI 9. SRI SHAILENDRA KUMAR SINGH S/O LATE BAIDYANATH PD. SINGH R/O VILL.- GAZIPUR, P.S. SHAYMPUR BHATAHA, DISTT.- SHEOHAR ----------- For the petitioner: M/s S.K.Thakur & Alok Kumar, Advocate For the State : Ms Shaiul Kumari, SC 15 For Respondent No. 9: M/s Rajiv Kumar Singh & Alok Kumar Singh, Advocates --------- 4. 17.03.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. A rejoinder to the counter affidavit of Respondent no. 4 is stated to have been filed on behalf of the petitioner on 16.3.2011. It is not available on record. The Office shall place it on record. The Court requested Counsel for the petitioner to make available his copy for perusal so that the application may be disposed off, if possible at this stage. Let the office retain a Xerox copy of the rejoinder placed by the Counsel for the petitioner during submissions. The petitioner claims to be a social and political activist, a resident of Village Dumari Katasari. He is aggrieved by the establishment of a water tank 3 kilometer away in Village Gazipur, in the same block. Learned Counsel for the petitioner submits that the water tank was to be installed under a NABARD sponsored scheme. The previous location at Village Dumari Katasari was approved by Respondents 1 to 3 and directions issued accordingly. The location had been shifted to 2 favour Respondent no. 9 who was a relative of Respondent no. 4, the District Magistrate. The population of Dumari Katasari village is 2700 while Village Gazipur has a population of 1500. Representation had been filed to shift the location of the water tank to Dumari Katasari but nothing was done. The District Magistrate in his counter affidavit had stated falsehood that there was no Village Dumari Katasari. Without reference to the details of any writ petition, it has been stated that this Court in another case had not approved changing the name of the Village. A counter affidavit has been filed by the District Magistrate, Respondent no. 4, affirmed by himself. He specifically denies that Respondent no. 9 is any relative of his. It has been stated that in absence of proper lands being available the tank was located at the alternative site and that location of the tank at Gazipur was in the interest of maximum people. The specific denial in paragraph 5 of the counter affidavit of the District Magistrate for absence of any relationship with Respondent no. 9 has not been denied in para 4 of the rejoinder. The suggestion now being made in para 9 of the rejoinder is that the District Magistrate has manipulated the location. The location of a water tank, a social amenity, and the manner of its best utility, is purely an executive policy matter. The authorities at the site are best suited to appreciate matters with regard to the establishment, location and consequent water supply. Unless violation of any statutory provisions are shown, the establishment, location and provision of water supplies cannot be usurped by the Court, to become a super administrator over the executive authorities. The Court cannot arrogate to itself the role of the administrator to start taking administrative decisions where a water tank should be located or not. 3 In (2000) 8 SCC 262 (Netai Bag v. State of W.B.), it has been observed at paragraph 20 as follows : - “20. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical”. Again in (2001) 10 SCC 75 ( Raj Shikshan Prasarak Mandal v. State of Maharashtra) it has been held : - “The shifting of the school from one place to the other or having an ashram school at one place is not governed by any statutory rules and it is in fact a policy decision of the Government. So long as the government decision is not actuated with any malice or is not the outcome of an arbitrary and whimsical act, the same should not be interfered with by a court of law under Article 226 of the Constitution of India. This being the position and on the relevant materials, the appropriate authority having considered the interest of the public at large and having allowed the shifting of the school from Mallapur to Ardahpur, the same could not have been cancelled on the pretext that the High Court issued a notice of contempt in the matter”. On the own showing of the petitioner the distance between the two sites is minimal of 3 kilometers. The petitioner does not state that because of location of the water tank at Gazipur the residents of Village Dumari Katasari have been denied water supply. The petitioner claims to be a social and political activist. Surely he has enough time in his hands to do his home work before filing a writ petition, rather than making irresponsible and reckless allegations against a state functionary, the District Magistrate, who has no personal issues involved but is only discharging his duties as a government 4 servant. The failure of the petitioner in his rejoinder to deal with the denial of the District Magistrate that respondent no. 9 was not his relative leaves this Court thoroughly satisfied that the petitioner is a busy body unnecessarily meddling in affairs of the State not only creating obstruction in the functioning of the local authorities but wasting the time of the Court. On 26.4.2010 the petitioner contended before the Court that the location of the water tank was the jurisdiction of the Panchayat Samiti under Section 47(1)(x). He persuaded the Court to pass interim orders restraining construction of the water tank, a public amenity. It is not in controversy that because of the interim order construction of the water tank has been stopped depriving the villagers of proper water supply. The Summer Season is also on. Whether the approval of the Panchayat Samiti was there or not is a question of fact on which the application of the provisions of Section 47 of the Panchayat Raj Act either may or may not be founded. There is no foundational fact in the pleadings of the writ petition. The Panchayat Samiti has not been made a party respondent. The order dated 25.10.2007 on which the entire fulcrum of the case of the petitioner rests that Respondents 1 to 3 had given directions only states name of the Block as Dumari Katasari. This executive instruction that it may be located at the headquarter of the block is no statutory law. The flexibility for requirement of the site is the jurisdiction of the authorities as already held. In (1988) 4 SCC 534 (Bharat Singh v. State of Haryana, it has been held at paragraph 13 as follows:- “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before 5 us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” The writ application is wholly frivolous. It is symptomatic how an individual, misusing the process of the law and Court can stall public projects as essential as water supply for personal egoistic benefits. The interim order is considered necessary to be set right by restitution imposing costs of Rs. 10,000/- on the petitioner. The Panchayat Samiti shall ensure that the cost money is utilized for public purposes in the geographical area of the Samiti. The costs to be deposited with the Executive Officer of the Panchayat Samiti within a period of one month. In (2003) 8 SCC 648 (South Eastern Coalfields Ltd. v. State of M.P), it has been held at paragraph 26 as follows:- “ 26 …………The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough 6 so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.” Again in (1997) 7 SCC 91, (Amitabh Bachchan Corpn. Ltd. v. Mahila Jagran Manch,) it has been held at paragraph 10 as follows:- “10. Ordinarily in a case like this where the agitation has cost a lot to the appellant, we would have been inclined to direct heavy costs to be paid. But we do not do so in the present case, this being the first of its kind, but direct that the cost in the cause will be paid. But this should serve as a warning that in future such abuse of the judicial process may visit the petitioners with an order for payment of exemplary costs.” The application is dismissed. Snkumar/- (Navin Sinha,J.)