Sudhir Prasad Singh vs The State Of Bihar
2021 Latest Caselaw 21 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.9899 of 2020
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Sudhir Prasad Singh, Son of Late Ramshnehi Prasad Singh resident of village- Orhanpur, Police Station- Muffasil in the district of Nawada

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna

2. The Principal Secretary Panchayati Raj Department, Government of Bihar, Patna

3. The District Magistrate-cum-Collector, Nawada

4. The District Panchayat Raj Officer, Nawada

5. The Block Development Officer, Nawada in the district of Nawada

6. The Circle Officer, Nawada Block in the district of Nawada

7. The Gram Panchayat Oraina under Nawada Block in the district of Nawada through its Secretary

8. The Mukhiya Gram Panchayat, Oraina under Nawada Block in the district of Nawada

9. The Panchayat Secretary, Gram Pnchayat, Oraina under Nawada Block in the district of Nawada

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

For the Petitioner/s : Mr.Sunil Kumar, Advocate For the Respondent/s : Mr.Lalit Kishore, A.G.

Mr. Ajay, G.A. -5 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 05-01-2021

Petitioner has prayed for the following reliefs:-

i. To direct the respondents to not construct the Panchayat Bhawan at village- Oraina under Gram Panchayat, Oraina as the Panchayat Bhawan is already existing on NH 31 at Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

Village- Orhanpur having area more than 15 Kathas of land and since beginning all the Panchayat activities was conducted in Panchayat Bhawan sitauted at village- Orhanpur.

ii. Also to prevent the respondents from construction of the Panchayat Bhawan at village-Oraina under Oraina Gram Panchayat which is situated at the distance of 2 K.M. from N.H. 31.

iii. Also to direct the State respondents to no allow the misuse the public money in the garb of construction of New Panchayat Bhawan at village-Oraina whereas the Panchayat Bhawan is existing at Village- Orhanpur under Oraina Gram Panchayat. iv. Also for any other relief/reliefs for which the petitioner is found to be entitled in the eye of law. "

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 Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

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 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 Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

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 Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

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, 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 Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

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 Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

counsel for the petitioner submits that petitioner shall be content

if a direction is issued to the concerned respondent(s) to

consider and decide the representation which the petitioner shall

be filing 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.

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.

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.

Patna High Court CWJC No.9899 of 2020 dt.05-01-2021

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)

( Rajeev Ranjan Prasad, J)

sujit/-

AFR/NAFR
CAV DATE
Uploading Date          07.01.2021
Transmission Date