Pankaj Kumar Chaudhary vs The State Of Bihar
2021 Latest Caselaw 219 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.9971 of 2020
     ======================================================

1. Pankaj Kumar Chaudhary, Son of Brahmdeo Chaudhary, resident of village-

Basudevpur, Police Station- Puraini, District- Madhupura

2. Mithilesh Kumar @ Mithlesh Kumar Thakur, Son of Ganesh Thakur Resident of village- Basudevpur, P.o.- Kursandi, Ward No. - 6, Police Station- Puraini, District- Madhupura.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Human Resource Development Deptt., Government of Bihar, New Secretariat, Patna

2. The District Magistrate, Madhepura

3. The Deputy Development Commissioner, Madhepura

4. The District Education Officer, Madhepura

5. The Sub Divisional Officer, Madhepura

6. The Block Education Officer Puraini, Madhepura

7. The Principal, Rauta High School, Rauta Kurshandi, P.s.- Puraini, District-

Madhepura

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

For the Petitioner/s : Mr. Manish Kumar No. 2, Advocate Mr. Gajendra Kumar Singh, Advocate For the Respondent/s : Mr.Lalit Kishore, A.G. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 21-01-2021

Petitioners have prayed for the following reliefs:-

"For setting aside the order dated 13.04.2020 contained in D.B. No. -324 issued by the Collector, Madhepura, whereby and whereunder the application filed by the petitioners pursuant to the order of this Hon'ble Court dated 22.08.2019 passed in C.W.J.C. 13954 of 2019 Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

has been dismissed and directed to start the education of the students in Upgraded Girls Middle School, Rauta in place of Government Middle School, Basudevpur, Pursaini, Madhepura and/or for any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioners are found entitled under the facts and circumstances of the case. "

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.

Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

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 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.

Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

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 (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 Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

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

Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

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 petitioners submits that petitioners shall be

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

consider and decide the representation (Annexure-6) for

redressal of the grievance(s) expeditiously and preferably within

a period of two months.

Learned counsel further states that within a period

of two weeks from today, petitioners shall place additional

material supplementing the averments made in the petition. Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

Learned counsel for the respondents states that the

authority concerned shall consider and dispose of the

representation filed by the petitioners expeditiously and

preferably within a period of two months from the date of

appearance of the petitioners before the authority concerned

along with a copy of this order.

Equally, liberty is reserved to the petitioners to take

recourse to such alternative remedies as are otherwise available

in accordance with law.

We are hopeful that as and when petitioners take

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.

We have not expressed any opinion on merits. All

issues are left open.

The proceedings, during the time of current Patna High Court CWJC No.9971 of 2020 dt.21-01-2021

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)

( Prabhat Kumar Singh, J)

sujit/-

AFR/NAFR
CAV DATE
Uploading Date          22.01.2021
Transmission Date