Kameshwar Prasad Singh @ ... vs The State Of Bihar
2021 Latest Caselaw 4257 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.14181 of 2021
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Kameshwar Prasad Singh @ Kameshwar Singh Son of Late Ramdulari Singh, Resident of Village - Lochna, P.S. - Punpun, Circle Punpun, District - Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the District Magistrate, Patna.

2. The Sub-Divisional Officer, Masaurhi, District - Patna.

3. The Circle Officer, Punpun, District - Patna.

4. The Deputy Superintendent of Police, Masaurhi, District - Patna.

5. The Station House Officer, Punpun Police Station, District - Patna.

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

For the Petitioner/s : Mr.Manoj Kumar Pandey For the Respondent/s : Mr.Lalit Kishore (AG) ====================================================== 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 : 24-08-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

" (i) For issuance of writ in the nature of mandamus

commanding and directing the Respondent District Magistrate

to enquire into the matter and take appropriate decision for

providing a public connecting road to the village Lochna under

Punpun Block, Gram Panchayat Raj Kerwa as the Tola Lochna

having no connecting road rather the public of the said locality Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

is only using Plot No. 2738 under Khata No. 139 from more

than 100 years but the same is recorded in the name of private

raiyat.

(ii) For further direction to the Respondents authority

District Magistrate to hold an enquiry and if grievance of

the petitioner found genuine the Plot No. 2738 of Khata

No. 139 be acquired for the purpose of connecting road

on the cost of the State Government under any

appropriate scheme.

(iii) For further direction to the Respondents authority

to dispose of the representation of the petitioner by

reasoned and speaking order within time framed.

(iv) And for any other relief/reliefs for which the

petitioner is found to be entitled in the eye of law."

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

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 Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

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. Koramangala Residents Vigilance Group, (2005) 3SCC 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 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 Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

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 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."

Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

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

Respondent No. 1- District Magistrate, Patna or any of the

statutory authority 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 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, Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

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 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;

Patna High Court CWJC No.14181 of 2021 dt.24-08-2021

The petition stands disposed of in the aforesaid terms.

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J) s.hassan/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          27.8.2021
Transmission Date       NA