Patna High Court
Binod Kumar Singh vs The State Of Bihar on 12 January, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9729 of 2020
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Binod Kumar Singh, Son of Late Ram Pravesh Singh Resident of Village-
Solhanda, P.S.- Makhdumpur, District- Jehanabad.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Principal Secretary, Department of Water
Resources, Sichai Bhawan, Bihar, Patna.
2. The Engineer-in- Chief Department of Water Resources, Sichai Bhawan,
Bihar, Patna.
3. The Chief Engineer, Irrigation Division, Gaya, Bihar.
4. The Superintending Engineer Irrigation Division, Gaya, Bihar.
5. The Executive Engineer, Irrigation Division, Jehanabad, District- Jehanabad.
6. The Assistant Engineer Sub- Division, Jehanabad, District- Jehanabad.
7. The District Magistrate Jehanabad, District- Jehanabad.
8. The Sub- Divisional Officer Jehanabad, District- Jehanabad.
9. The Anchaladhikari Makhdumpur Anchal, District- Jehanabad.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Surendra Kumar Mishra, Advocate
For the Respondent/s : Mr.Lalit Kishore, A.G.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 12-01-2021
Petitioner has prayed for the following reliefs:-
" For issuance of an appropriate writ in the nature
of mandamus, commanding the respondents to not
construct Pucca construction and to not install gate
over main Pain appertaining to Plot No. 3354,
situated at Village-Solhanda, P.S.- Makhdumpur,
District-Jehanabad due to which the farmers of
Village- Solhanda, Misrauli, Boknari Khurd, Mogal
Patna High Court CWJC No.9729 of 2020 dt.12-01-2021
Bigha, Bhane Bigha, Pakar Bigha and others
Villages will be deprived of from irrigating
thousands acres of their fertile land and due to
arbitrary action of respondents their land will
become desert land."
Learned counsel for the State opposes the
petition stating that the petition is misconceived; raises disputed
question of fact; is not in public interest; and that the issue can
be best resolved at the Government level by the appropriate
authorities.
In D. N. JEEVARAJ V. State of Karnataka
(2016) 2 SCC 653, Madan B. Lokur J. has culled out the
following process for adjudication of public interest litigation,
more so in a writ of mandamus as is sought to be enforced, at
para Nos.34 to 38 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 Hig2019h 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
Patna High Court CWJC No.9729 of 2020 dt.12-01-2021
follows: (SCC p. 515, para 16)
"16. The writ petitions before us are not inter
partes 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) 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.
Howev2019er, 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
Patna High Court CWJC No.9729 of 2020 dt.12-01-2021
(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 iss2019uing
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
Patna High Court CWJC No.9729 of 2020 dt.12-01-2021
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 submits that petitioner shall be
content if a direction is issued to the respondent No. 4 to
consider and decide the representation (Annexure-1) for
redressal of the grievance(s).
Learned counsel for the respondents states that
the authority concerned shall consider and dispose it of
expeditiously and preferably within a period of two months
from the date of its filing of representation along with a copy of
this order.
Equally, liberty is reserved to the petitioner to
take recourse to such alternative remedies as are otherwise
available in accordance with law.
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.
Patna High Court CWJC No.9729 of 2020 dt.12-01-2021
Needless to add, while considering such
representation, principles of natural justice shall be followed
and due opportunity of hearing afforded to the parties.
Liberty reserved to the petitioner to approach the
Court, if the need so arises subsequently on the same and
subsequent cause of action.
We have not expressed any opinion on merits.
All issues are left open.
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.
Interlocutory Application(s), if any, also stands
disposed of.
(Sanjay Karol, CJ)
( Madhuresh Prasad, J)
sujit/-
AFR/NAFR
CAV DATE
Uploading Date 13.01.2021
Transmission Date
