Patna High Court
Bibeka Nand Thakur vs The State Of Bihar on 24 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13991 of 2021
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Bibeka Nand Thakur Son of Dwarika Thakur, Resident of Village-Dubha, P.S.
Simri, Block-Simri, District-Buxar. At present residing at M.I.T. Campus,
Quarter No. A/23 M.I.T. Muzaffarpur, District-Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar Bihar.
2. The Principal Secretary, Rural Development Department, Government of
Bihar, Patna.
3. The Secretary, Rural Works Department (R.W.D.) 5th Floor, Vishreshwarya
Bhawan, Bailey Road, Patna.
4. The Additional Chief Executive Officer, Bihar Rural Road Development
Agency, Patna.
5. The District Magistrate, Buxar.
6. The Circle Officer, Simri, Buxar.
7. The Block Development Officer, Simri, Buxar.
8. The Mukhiya, Gram Panchayat Raj Gangauli, Block-Simri, District-Buxar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Pramod Kumar
For the Respondent/s : Mr.Anjani Kumar (AAG 4)
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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 : 24-08-2021
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
" For issuance of an appropriate writ in the nature of
Mandamus commanding and directing the Respondent
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
authorities to construct all weather rural Road (Pakki Sadak) in
the village Dubha in Gangauli Gram Panchayat, Block Simari,
District Buxar to link it with main Rajapur Road/ Market/ Major
Town by an all season motorable rural Road under different
schemes/projects running in the State of Bihar as the village
Dubha is an old village, its population is more than two
thousand 2000 people and as such is fulfilling all the criteria of
construction of all season rural Road under the Mukhya Mantri
Gram Sampark Yojna (MMGSY) but despite best effort and
repeated representations the respondent authorities are not
paying heed and as such people of the village are forced to face
problems due to lack of rural road.
And for issuance of any other appropriate writ/writs,
direction/directions, order/orders for which the petitioner may
be found legally entitled to in the facts and circumstances stated
hereunder."
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.
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
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.
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
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
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 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
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
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
Respondent No. 5- District Magistrate, Buxar 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
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
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 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
Patna High Court CWJC No.13991 of 2021 dt.24-08-2021
parties otherwise mutually agree to meet in person i.e. physical
mode;
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
