Kalicharan Sah vs The State Of Bihar
2021 Latest Caselaw 4222 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No. 7394 of 2021
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1. Kalicharan Sah S/o Sita Ram Sah R/o Vill- Bela Bagroli Barahshere, P.O.

Barahsher, P.S.- Bihra, District- Saharsa.

2. Krishna Dayal Yadav S/o Dukharam Yadav R/o Vill- Bela Bagroli Barahshere, P.O. Barahsher, P.S.- Bihra, District- Saharsa.

3. Agnideo Yadav S/o Rajeshwar Yadav R/o Vill- Bela Bagroli Barahshere, P.O. Barahsher, P.S.- Bihra, District- Saharsa.

4. Baijnath Mandal S/o Phagu Mandal R/o Vill- Bela Bagroli Barahshere, P.O.

Barahsher, P.S.- Bihra, District- Saharsa.

5. Lakshmi Prasad Sahu S/o Prithwichandra Sahu R/o Vill- Bela Bagroli Barahshere, P.O. Barahsher, P.S.- Bihra, District- Saharsa.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The District Magistrate, Saharsa, Bihar.

3. The Deputy Collector, Land Reforms, Saharsa.

4. The Sub Divisional Officer, Saharsa.

5. The Circle Officer, Sattar Katya, Circle, District Saharsa.

6. The Block Education Officer, Sattar Katya, Block District Saharsa.

7. The Officer-in-Charge of Bihra P.S. District Saharsa.

8. The Headmaster of Upgraded Middle School Bela Bagroli, P.O. Barahsher, P.S.- Bihra, District- Saharsa.

9. Md. Shekhawat Ali S/o Late Md. Guljar Bela Bagroli Barahshere, P.O.

Barahsher, P.S.- Bihra, District- Saharsa.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Anand Kumar Singh, Advocate Mr. Purusottam Kumar Singh, Advocates Mr. Dharmendra Kumar, Advocate For the Respondent/s : Smt. Shilpa Singh (G.A.12) ====================================================== 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 : 23-08-2021 Heard learned counsel for the parties. Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

Petitioners have prayed for the following relief(s):-

"(I) Direction to the respondent authorities to save the property of Bela Bagroli upgraded middle school which has been donated by one Saburi Shahu in favour of Saharsa Collector on 14.12.1959 which is the playground of the school measuring 5 katha and 5 dhur from private respondent no. 9 who claims right title over the said land by virtue of sale deed executed in his name on 2.8.2014. (II) Direction to authorities after measuring the above property of the school and erect boundary wall to save the property from any type of encroachment from any corner by law breakers and land mafia particularly respondent no. 9. (III) For declaring all the translations made after 14.12.1959 of school property is illegal and void. (IV) For any other reliefs or reliefs to which petitioners are entitled may kindly be given."

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 Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

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. 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 Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

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 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 petitioners, under instructions, states that

petitioners shall be content if a direction is issued to the

authority concerned i.e. District Magistrate, Saharsa to

consider and decide the representation which the petitioners

shall be filing within a period of four weeks from today for Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

redressal of the grievance(s).

Learned counsel for the respondents states that if such

a representation is filed by the petitioners, 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) Petitioners shall approach the authority

concerned i.e. District Magistrate, Saharsa 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;

Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

(d) Equally, liberty is reserved to the petitioners to

take recourse to such alternative remedies as are otherwise

available in accordance with law;

(e) We are hopeful that as and when petitioners

take 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 petitioners to approach

the Court, if the need so arises subsequently on the same

and subsequent cause of action;

(g) Liberty also reserved to the petitioners 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;

Patna High Court CWJC No. 7394 of 2021 dt.23-08-2021

The petition stands disposed of in the aforesaid

terms.

Interlocutory Application(s), if any, stands

disposed of.

(Sanjay Karol, CJ)

( S. Kumar, J) veena/rajiv-

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