Bhawesh Kuamr Tewari vs The State Of Bihar
2021 Latest Caselaw 3003 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.4949 of 2021
     ======================================================

1. Bhawesh Kuamr Tewari Son of Kaushal Nath Tiwari Resident of Village-

Asha Parari, P.S.-Simri, District-Buxar.

2. Shivjee Tiwari Son of Late Shivdan Tiwari Resident of Village-Asha Parari, P.S.-Simri, District-Buxar.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Revenue and Land Reforms Department, Govt. of Bihar, Patna.

2. The Divisional Commissioner, Patna Division, Patna.

3. The District Magistrate, Buxar.

4. The Sub-Divisional Officer, Buxar.

5. The Circle Officer, Simri, District-Buxar.

6. The Station House Officer, Simri P.S., District-Buxar.

7. The Block Development Officer, Simri, District-Buxar.

8. The Mukhiya, Gram Panchayat Raj, Parari, Block-Simri, District-Buxar.

... ... Respondent/s ====================================================== (The proceedings of the Court are being conducted by Hon'ble the Chief Justice /Hon'ble Judges through Video Conferencing from their residential offices/residences. Also, the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences /offices.) Appearance :

For the Petitioner/s : Mr.Mukesh Kumar, Adv For the Respondent/s : Mr. Sajid Salim Khan SC-25 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR )

Date : 05-07-2021

Heard learned counsel for the parties.

Petitioners have prayed for the following relief(s):-

"(i) For issuance of an appropriate writ(s) or direction or order to the respondents to not construct Panchayat Bhawan of Gram Panchayat Raj Asha Parari under Simri prakhand, Buxar in the play ground situated Patna High Court CWJC No.4949 of 2021 dt.05-07-2021

in Campus of Middle School, Asha Parari under Simri Prakhand Buxar.

The said field is Sarwa-sadharan Anabad land situated in Khata/ Thana No.-1721, plot No. - 758,759 and 760, total area about 2 Acre 4 decimals.

The present Muhiya ,who was also Mukhiya in the year 2011, on- 04/01/2011 in Aam Sabha declared public field and for its development got sanctioned Rs.4,88,656/- and got the land plane, in which public function of all communities nave Deen Bong on, but without any rhyme and reason, the present Mukhiya with connivance of local administration going to construct New Panchayat Bhawan on same land by left over own land of present Panchayat Bhawan.

Several villagers including petitioner made representation to the District Magistrate, Buxar to stop construction over the said field, the D.M. Buxar, after going through the genuine grievances of villagers, on in Novemoer 2020 sought for an enquiry from D.D.C. but till Date the matter is pending for consideration and the construction work is going on.

(ii) For a direction to the respondent to set up a enquiry as to why Panchayat Bhawan is constructed in the Middle School Field, where all public function i.e. Durga Puja, Chhath Puja, Tajiz of Muslim community are going on.

(iii) For a direction to the respondent to stay any construction over the field of Middle School, Asha Parari, Simri, Buxar."

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that

petitioners shall be content if a direction is issued to the

District Magistrate, Buxar to consider and decide the

representation which the petitioners shall be filing within a

period of four weeks from today for redressal of the

grievance(s).

Patna High Court CWJC No.4949 of 2021 dt.05-07-2021

Learned counsel for the respondents states that if such

a representation is filed by the petitioners, 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.

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 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 Patna High Court CWJC No.4949 of 2021 dt.05-07-2021

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, 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 Patna High Court CWJC No.4949 of 2021 dt.05-07-2021

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."

As such, petition stands disposed of in the following

terms:-

(a) Petitioners 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 petitioners to

take recourse to such alternative remedies as are otherwise

available in accordance with law;

(e) We are hopeful that as and when petitioners takes Patna High Court CWJC No.4949 of 2021 dt.05-07-2021

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 petitioners to approach the

Court, if the need so rises subsequently on the same and

subsequent cause of action;

(g) We have not expressed any opinion on merits. All

issues are left open;

(h) 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, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J)

ranjan/-

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