Shio Jee Chaurasiya vs The Union Of India
2021 Latest Caselaw 3254 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.8874 of 2020
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Shio Jee Chaurasiya Son of Shree Shyam Narayan Chaurasiya, resident of Village and Post Office - Pandey Patti Buxar, P.S. Muffasil (Buxar) Chausa, District, Buxar.

... ... Petitioner/s Versus

1. The Union of India through the Cabinet Secretary, Government of India, New Delhi.

2. The Secretary, ministry of environment, forests and Climate Change, Government of India.

3. The under Secretary, ministry of new and renewable energy (NSIU Division) Government of India, New Delhi.

4. The under secretary ministry of finance department, Government of India, New Delhi.

5. The Chairman of Niti ayog, Government of India, New Delhi.

6. The Chairman of Public Investment Board, Government of India, New Delhi.

7. The Chairman, Central Pollution Board New Delhi.

8. The Chief Secretary, Government of Bihar Sachiwalya, Patna.

9. The Principal Secretary finance Department, Government of Bihar Sachiwalya Patna.

10. The Principal Secretary, energy Department Government of Bihar, Sachiwalya Patna.

11. The Principal Secretary, Forest and Environment Department, Government of Bihar Sachiwalya Patna.

12. The Principal Secretary, Health Department Government of Bihar Sachiwalya Patna.

13. The Director, Bihar renewable energy Department Agency (BREDA) 3rd floor Sone Bhavan, Birchand Patel Mange Patna - 1.

14. The Chairman, Bihar Pollution Central Board Patna.

15. The Commissioner, Patna.

16. The District Collector, Buxar.

17. The District Land acquire Office Buxar.

18. The Sub Divisional Officer Buxar.

19. The Circle Office Chausa Block Chausa District Buxar.

20. The Manager SJVN thermal Pvt. LTD Nav durga complex 2nd floor Ambedker Chawk Buxar - 802103.

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

Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

For the Petitioner/s : Mr.Surendra Kumar Singh, Advocate For the Respondent/s : Mr. Dr. K.N. Singh, (ASG) Mr. Sarvesh Kumar Singh, AAG-13 Mr. Hare Bhastkar Greetesh, Adv.

====================================================== (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR)

Date : 12-07-2021

Heard learned counsel for the parties.

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

"For issuance of writ in the nature of mandamus for solar plant installation under war of pollution root as climate policy enicitive or green park scheme by Central Government/stay or remove or change to notification of N.T.P.C. Project at Chausa (Buxar) from war of pollution root scheme central government & poison gas arise from coal chimine of N.T.P.C. in future as "Carbon mono oxides, sulphur oxides & nitrogen oxides" which will be very danger effect to Human life body, eye, children, mind, animals birds, fish of near Karmanasa river, with commercial vegetables agriculture harass alongwith local bazar will be end in future further will be lakho people un-employed. If will be no consider at present solar park. N.T.P.C. Notification area residential living villages near about 40 ancients villages established which are voiution of pollution protection guideline by respondents which will be effect fertilizer land & nearest water storage of Karmanasa river at flood period near about two months of human life as article 19 & 21 of the Constitution of India will be voidable.

Then presently health of people in Bihar Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

as there has been increase pulmonary disease (COPU) as per the data of Bihar State health society the cases of acute respiratory illness (ARI) has increased in Bihar form other 2 lakh in 2009 to around 11 lakh in 2018. So the pollution Board has reject to N.T.P.C. installation of central public sector under taking (PSU) are acquire as all overt India States (Ann---).

Further local villagers has put up signature on the representation dated 22.09.2019 before Hon'ble P.M., Cabinet Minister, Energy Minister, on 25.09.2019 then respondent no. 3 has consider in favour of villagers and send to letter no. 247/1/2017- NSM (pt-1) but respondent no. 13 has been confused and misguide to respondent no. 3 when respondent no. 13 is agency of Bihar government for installation to solar park scheme under Bihar renewable energy department Agency (Breda). Which has no right to consider as according to Annexure no- 3 series, page no- ............. Solar park scheme under minister of new of renewable energy for protection to pollution of human life health of all people. This solar energy park project has boldly consider by Hon'ble P.M. date 10/07/2020 at Rewa (MP) during lunching 750 MW project under "Atma nirbha Bharat" compensation alongwith announce- "it is sure, pure and secure" as annexure no. 18.

And further for issuance of writ or writs direction or direction as it may deem fit and proper to the facts and circumstances of this case."

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 to consider and decide the representation Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

which the petitioner shall be filing within a period of four

weeks from today 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.

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 Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

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.8874 of 2020 dt.12-07-2021

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."

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 Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

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 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 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. Patna High Court CWJC No.8874 of 2020 dt.12-07-2021

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J) Rajiv/veena-

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