Subhash Prasad Yadav vs The State Of Bihar Through The ...
2021 Latest Caselaw 4266 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.10940 of 2021
     ======================================================

Subhash Prasad Yadav son of Premadhar Ray Resident of Village Hetanpur, P.O. Madhopur, Khagaul, Danapur, District- Patna.q

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner - Cum Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, bailey Road, Patna - 800001.

2. The Mines Commissioner - Cum - Principal Secretary, Department of Mines and Geology, Government of Bihar, Vikas Bhawan, Bailey Road, Patna- 800001.

3. The Director, Mines and Geology, Bihar, Vikas Bhawan, Bailey Road, Patna.

4. The Director General of Police, Bihar.

5. The Assistant Director, Department of Mines and Geology, Saran.

6. The Assistant Director, Department of Mines and Geology, Bhojpur.

7. The District Magistrate cum Collector, Bhojpur.

8. The Distrcit Magistrate cum Collector, Bhojpur.

9. The Superintendent of Police, Saran.

10. The Superintendent of Police, Bhojpur.

11. The Officer in Charge, Barhara Police Station, Bhojpur.

12. The Officer in Charge, Azimabad Police Station, Bhojpur.

13. The Officer in Charge, Imadpur Police Station, Bhojpur.

14. The officer in Charge, Koilwar Police Station, Bhojpur.

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

For the Petitioner/s : Mr.Suraj Samdarshi, Advocate For the Respondent/s : Mr. Gyan Prakash Ojha, GA 7 Mr. Naresh Dikshit, Advocate ====================================================== 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. Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

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

" (i) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents to take effective and concrete steps to curtail illegal mining of sand prevailing and thriving in the District of Saran and Bhojpur.

(ii) For issuance of a writ order or direction in the nature of mandamus commanding the Respondents to conduct an assessment of the sand reaches in the district of Bhojpur and Saran in order to determine the environmental damage caused by illegal mining, by a committee constituted by district administration having expertise from relevant fields, and also having independent representation of locals and State Pollution Control Board, in accordance with Clause 9.2 of the Enforcement & Monitoring Guidelines for Sand Mining, 2020.

(iii) For issuance of a writ order or direction in the nature of mandamus commanding the Respondents to conduct strict surveillance, particularly at night, of the sand reaches in the District of Bhojpur and Saran using unmanned aerial vehicles an drones to control illegal mining.

(Iv) For issuance of a writ order or direction in the nature of mandamus commanding the Respondents that all vehicles transporting sand are monitored thought GPS.

(v) For issuance of a writ order or direction in the nature of mandamus commanding the Respondents Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

to adopt a uniform monitoring mechanism to identify illegal mining in accordance with the guidelines laid down at Clause 9.4 and 9.5 of the Enforcement & Monitoring Guidelines for Sand Mining, 2020.

(vi) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents ensure that only authorized persons/legal entity holding a valid mineral concession are allowed to excavate and sell sand.

(vii) For issuance of a writ, order or direction in the nature of mandamus commanding the Respondents to take prompt and appropriate legal steps under the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation and Storage) Rules, 2019 against the persons/entities found to be involved in illegal mining, transportation and storage of sand in the District of Bhojpur and Saran, including registration of First Information Report.

(viii) To issue further appropriate writ order or direction in the nature of mandamus commanding the Respondents to establish necessary check posts at appropriate places, including all major transit routes in order to check Illegal mining and ensure that transportation of sand is being done of valid and legal transit challans in accordance with the provisions of the Bihar Minerals (Concession, Prevention of Illegal Mining, Transportation and Storage) Rules, 2019

(ix) To issue further appropriate writ, order or direction to Respondents to fix responsibility over Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

the officers of the local police station and local administration who are found to be derelict in their duty to curb illegal mining, transport and storage of sand in the district of Bhojpur and Saran and to take effective disciplinary actions against them.

(x) To adjudicate and hold that the respondents cannot allow to valuable resource like sand to be squandered at the hands of illegal miners.

(xi) To award any other relief or reliefs for which the petitioner is found entitled in the facts and the circumstances of the 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 Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

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 SCC 630] in the following words: (SCC pp. 641-42, Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

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 petitioner, under instructions, states that

petitioner shall be content if a direction is issued to the

authority concerned 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).

Patna High Court CWJC No.10940 of 2021 dt.24-08-2021

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.10940 of 2021 dt.24-08-2021

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.10940 of 2021 dt.24-08-2021

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J) Sanjay/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          26.08.2021
Transmission Date       NA