Patna High Court
Bibha Singh vs The Union Of India Through The ... on 2 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11917 of 2021
======================================================
Bibha Singh D/o Jugal Kishore Singh W/o Dwarika Prasad Singh, R/o B-
102, Om Nirmalya Apartment, Parmanand Path, Nageshwar Colony, Patna -
800001.
... ... Petitioner/s
Versus
1. The Union of India through The Project Director NH - 30, National
Highway, Mitra Apartment, Boring Road, Patna - 1.
2. The District Magistrate, Patna.
3. The Civil S.D.O., Patna Sadar, Patna.
4. The A.D.M., Revenue, Patna.
5. The A.D.M. Law and Order, Encroachment, Patna.
6. The C.O. Patna Sadar, Patna.
7. The Sr. S.P., Patna.
8. The Thana Adhayaksh, Ram Krishna Nagar Police Station, Patna.
9. Ajit Singh Saluja S/o Guru Baksh Singh, R/o Flat No. 607, Shanti Vihar
Apartment, Frazer Road, P.S. - Kotwali, Patna - 800001.
10. Rajesh Kumar S/o Late Sri Krishna Lal R/o Basudham Kadam Kuan, P.O.
and P.S. - Kadam Kuan, Patna- 4.
11. Ranjan Kumar R/o Bakarganj, Daldali Road, P.S. - Gandhi Maidan, Patna -
800004.
12. Aijaj Hussain S/o late Hazi Mohammad Akram R/o Flat No. 3003, Jabaida
Complex, Exhibition Road, P.S. - Gandhi Maidan, Patna- 800001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Arun Kumar No. 1, Advocate
For the Respondent/s : Mr.Dr. K.N. Singh (Asg)
Mr. Kumar Manish, SC 5
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
(The proceedings of the Court are being conducted through
Video Conferencing and the Advocates joined the proceedings
through Video Conferencing from their residence.)
Date : 02-08-2021
Heard learned counsel for the parties.
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
Petitioner has prayed for the following relief(s):-
" (I) That in the light of judgments reported in
1996(2)PLJR (272) & 1999 PLJR(3) pg. 614 (AX-
2&3), the State respondents be strictly directed to
remove the entire encroachments & Pucca
constructions made on NH-30 and its flanks near
Bharat Petroleum Petrol Pump at Manza Jogipur,
Kumhrar, P.S. Ram Krishna Nagar, Dist- Patna,
forcibly made by encroachers respondents no.9 to 12
causing inconvenient to smooth traffic on that place
and accidents are occurring regularly.
(ii) That the State respondents (Ram Krishna Nagar
P.S.) also be strictly directed to stop the entire
constructions works immediately in the light of
Hon'ble Patna High Court judgment reported in 1999
(3) PLJR pg. 272, Para-5&6 (Arun Kumar
Mukharjee vs. the State of Bihar & Others), whereby
and wehreunder Hon'ble Patna High Court has
strictly directed that, if any road or its flank will be
encroached by any persons, the Thana Adyaksh will
be fully responsible for this same and he will be
guilty of contempt of Court (Annx-2)
(iii) That the respondents be also strictly directed,
that after removal of entire encroachment from NH
-30 or its flank near Bharat Petrol Pump, Jogipur.
And if further encroachment is done by any
encroachers or respondents no.9 to 12, they will be
punished under Sec. 12 of the Contempt of Court Act
or under Article 215 of the Constitution of India.
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
(iv) That State respondents be directed to pay the
appropriate cost and compensation to the petitioner
for unnecessary mental, physical and economical
harassment done by the illegal acts of the
respondents.
(v) That any other relief or reliefs may kindly be
granted in favor of the petitioner as it may be
deemed fit and proper to the facts and circumstances
of this case."
The Hon'ble Supreme Court in D. N. Jeevaraj Vs.
Chief Secretary, Government of Karnataka & Ors, (2016) 2
SCC 653, paragraphs 34 to 38 observed as under:-
"34. The learned counsel for the parties
addressed us on the question of the bona fides of
Nagalaxmi Bai in filing a public interest litigation. We
leave this question open and do not express any
opinion on the correctness or otherwise of the decision
of the High Court in this regard.
35. However, we note that generally speaking,
procedural technicalities ought to take a back seat in
public interest litigation. This Court held in Rural
Litigation and Entitlement Kendra v. State of U.P.
[Rural Litigation and Entitlement Kendra v. State of
U.P., 1989 Supp (1) SCC 504] to this effect as follows:
(SCC p. 515, para 16)
"16. The writ petitions before us are not inter
parties disputes and have been raised by way of
public interest litigation and the controversy
before the court is as to whether for social safety
and for creating a hazardless environment for the
people to live in, mining in the area should be
permitted or stopped. We may not be taken to
have said that for public interest litigations,
procedural laws do not apply. At the same time it
has to be remembered that every technicality in
the procedural law is not available as a defence
when a matter of grave public importance is for
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
consideration before the court."
36. A considerable amount has been said about
public interest litigation in R&M Trust [R&M Trust v.
Koramangala Residents Vigilance Group, (2005) 3
SCC 91] and it is not necessary for us to dwell any
further on this except to say that in issues pertaining to
good governance, the courts ought to be somewhat
more liberal in entertaining public interest litigation.
However, in matters that may not be of moment or a
litigation essentially directed against one organisation
or individual (such as the present litigation which was
directed only against Sadananda Gowda and later
Jeevaraj was impleaded) ought not to be entertained or
should be rarely entertained. Other remedies are also
available to public spirited litigants and they should be
encouraged to avail of such remedies.
37. In such cases, that might not strictly fall in
the category of public interest litigation and for which
other remedies are available, insofar as the issuance of
a writ of mandamus is concerned, this Court held in
Union of India v. S.B. Vohra [Union of India v. S.B.
Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that:
(SCC p. 160, paras 12-13)
"12. Mandamus literally means a
command. The essence of mandamus in England
was that it was a royal command issued by the
King's Bench (now Queen's Bench) directing
performance of a public legal duty.
13. A writ of mandamus is issued in favour
of a person who establishes a legal right in
himself. A writ of mandamus is issued against a
person who has a legal duty to perform but has
failed and/or neglected to do so. Such a legal
duty emanates from either in discharge of a
public duty or by operation of law. The writ of
mandamus is of a most extensive remedial
nature. The object of mandamus is to prevent
disorder from a failure of justice and is required
to be granted in all cases where law has
established no specific remedy and whether
justice despite demanded has not been granted."
38. A salutary principle or a well-recognised
rule that needs to be kept in mind before issuing a
writ of mandamus was stated in Saraswati Industrial
Syndicate Ltd. v. Union of India [Saraswati
Industrial Syndicate Ltd. v. Union of India, (1974) 2
SCC 630] in the following words: (SCC pp. 641-42,
paras 24-25)
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
"24. ... 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. 11, p. 106:
'198. Demand for performance must
precede application.--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."
After the matter was heard for some time, learned
counsel for the petitioner, under instructions, states that
petitioner shall be content if a direction is issued to the
authority concerned (The C.O. Patna Sadar, Patna) to consider
and decide the representation which the petitioner shall be
filing within a period of four weeks from today for redressal of
the grievance(s).
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
Learned counsel for the respondents states that if such
a representation is filed by the petitioner, the authority
concerned shall consider and dispose it of expeditiously and
preferably within a period of three months from the date of its
filing along with a copy of this order.
Statement accepted and taken on record.
As such, petition stands disposed of in the
following terms:-
(a) Petitioner shall approach the authority
concerned within a period of four weeks from today by
filing a representation for redressal of the grievance(s);
(b) The authority concerned shall consider and
dispose it of expeditiously by a reasoned and speaking
order preferably within a period of three months from the
date of its filing along with a copy of this order;
(c) Needless to add, while considering such
representation, principles of natural justice shall be
followed and due opportunity of hearing afforded to the
parties;
(d) Equally, liberty is reserved to the petitioner to
take recourse to such alternative remedies as are otherwise
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
available in accordance with law;
(e) We are hopeful that as and when petitioner
takes recourse to such remedies, as are otherwise available
in law, before the appropriate forum, the same shall be
dealt with, in accordance with law and with reasonable
dispatch;
(f) Liberty reserved to the petitioner to approach
the Court, if the need so arises subsequently on the same
and subsequent cause of action;
(g) Liberty also reserved to the petitioner to make
a mention for listing of the petition on priority basis. As
and when any such mention is made, Registry shall take
steps for listing the petition at the earliest.
(h) We have not expressed any opinion on merits.
All issues are left open;
(i) The proceedings, during the time of current
Pandemic- Covid-19 shall be conducted through digital
mode, unless the parties otherwise mutually agree to meet
in person i.e. physical mode;
The petition stands disposed of in the aforesaid
terms.
Patna High Court CWJC No.11917 of 2021 dt.02-08-2021
Interlocutory Application(s), if any, stands disposed
of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.08.2021
Transmission Date NA
