Patna High Court
Shivjee Mishra vs The State Of Bihar on 10 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11180 of 2021
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Shivjee Mishra, Son of Mantun Mishra, Resident of Village- Patsa, Police
Station- Hasanpur, District- Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar Through the District Magistrate, Samastipur.
2. The District Magistrate Samastipur.
3. The Sub- Divisional Officer Rosera, District- Samastipur.
4. The Circle Officer Hasanpur, District- Samastipur.
5. Sri Ghanshyam Mishra Son of Bhubneshwar Mishra Resident of Village-
Patsa, Police Station- Hasanpur, District- Samastipur.
6. Sri Ghuttar Mukhiya Son of Late Bittu Mukhiya Resident of Village- Patsa,
Police Station- Hasanpur, District- Samastipur.
7. Smt. Narayanpur Wali Devi W/o Thakko Mukhiya Resident of Village-
Patsa, Police Station- Hasanpur, District- Samastipur.
8. Sri Yoganand Mishra Son of Bateshwar Mishra Resident of Village- Patsa,
Police Station- Hasanpur, District- Samastipur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ranjit Kumar Yadav, Advocate
For the Respondent/s : Mr. Sajid Salim Khan, SC-25
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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 : 10-08-2021
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s).
"That this is an application for issuance of a
Patna High Court CWJC No.11180 of 2021 dt.10-08-2021
writ in the nature of Mandamus and/or any
other writ, order or direction tot the respondent
nos. 1 to 4 to remove the encroachment made
by the respondent nos. 5 to 8 over the village
Rasta which is recorded as "Anabad Sarv
Sadharan Aam Rasta" in the Provisional
Survey Khatiya, which start from the Main
road near the house of Sri Narayan Chaudhary
in the West and goes up to the other side Main
Road in the East near the house of Ram
Shankar Mishra."
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
consideration before the court."
36. A considerable amount has been said about
public interest litigation in R&M Trust [R&M Trust v.
Patna High Court CWJC No.11180 of 2021 dt.10-08-2021
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)
"24. ... The powers of the High Court
under Article 226 are not strictly confined to
the limits to which proceedings for
Patna High Court CWJC No.11180 of 2021 dt.10-08-2021
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 i.e. Circle Officer Hasanpur, District-
Samastipur 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).
Learned counsel for the respondents states that if such
Patna High Court CWJC No.11180 of 2021 dt.10-08-2021
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 i.e. Circle Officer Hasanpur, District- Samastipur
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.11180 of 2021 dt.10-08-2021
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.11180 of 2021 dt.10-08-2021
Interlocutory Application(s), if any, stands
disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
veena/rajiv-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date
Transmission Date NA
