Prashant Kumar vs The State Of Bihar
2021 Latest Caselaw 3443 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No. 8842 of 2021
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Prashant Kumar S/o Bijendra Prasad Singh, Resident of Village- Babhangawan, P.S. - Parsa, District - Saran at Chapra.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The Principal Secretary, Revenue and Land Reforms Department Govt. of Bihar, Patna.

3. The District Magistrate, Saran at Chapra.

4. The District Development Commissioner Saran at Chapra.

5. The Additional Collector, Saran at Chapra.

6. The District Fisheries Officer Saran at Chapra.

7. The Circle Officer Parsa, District Saran at Chapra.

8. Ram Ishwar Prasad Singh, Son of Late Ram Chandra Singh, Resident of Village- Babhangawan, P.S. Parsa, District - Saran at Chapra.

9. Pawan Kumar Singh, Son of Ram Ishwar Prasad Singh, Resident of Village-

Babhangawan, P.S. Parsa, District - Saran at Chapra.

10. Lalan Singh, S/o Ram Ishwar Prasad Singh, Resident of Village-

Babhangawan, P.S. Parsa, District - Saran at Chapra.

11. Rakesh Singh, S/o Ram Ishwar Prasad Singh, Resident of Village-

Babhangawan, P.S. Parsa, District - Saran at Chapra.

12. Awadhesh Singh, Son of Ram Ishwar Prasad Singh, Resident of Village-

Babhangawan, P.S. Parsa, District - Saran at Chapra.

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

For the Petitioner/s : Mr.Ajay Kumar Sharma, Advocate For the Respondent/s : Mr. Kinkar Kumar, S.C. 9 ====================================================== (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 : 19-07-2021

Heard learned counsel for the parties.

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

Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

"(i) For issuance of writ in the nature of mandamus commanding and directing the respondent authorities for removing encroachment of public land appertaining to Khata No. 114, plot no. 571, area 12 khata 7 dhur which is situated at village Babhangawan, Anchal Parsa, P.S. Parsa, District- Saran at Chapra.

(ii) For issuance of writ in the nature of mandamus commanding and directing the respondents to institute an enquiry to enquire into and report about the condition, status and existing position of Pokhra/Talab situated in village Babhangawan Thana No. 449, Khata No. 114, plot No. 571, Area 12 Katha 7 dhur as also to provide suggestion for taking suitable steps for the protection stable maintenance, improvement and better utility for the mankind and creatures.

(iii) For issuance of writ in the nature of mandamus commanding and directing the respondent no. 2 and 3 to set/fix the responsibility over the responsible officers of the District such as District Magistrate and other officials of the District to ensure the proper protection maintenance and improvement of the Pokhra/Talab (hereinafter referred as public water body) after removal of encroachment and also to prevent any further re-encroachment.

(iv) For issuance of writ in the nature of mandamus commanding and directing the respondents to link/connect public water body with all Government Welfare Schemes such as NREGA/MANREGA so that the nature and existence of public water body is preserved and maintained in larger public interest.

(v) For issuance of writ in the nature of mandamus commanding and directing the respondents no. 8 to 12 for removing encroachment for which they have encroached upon the said public land by constructing a pucca house which has caused much inconvenience of the several publics in the village of Babhangawan.

(vi) This Hon'ble Court may adjudicate and hold that it was the duty of the respondent authorities to protect preserved and maintain the public water body to ensure the utilizations of the natural resources in the better interest of the people at large.

(vii) This Hon'ble Court may further adjudicate and hold that the action of the respondents in not taking proper care in preservation and Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

maintenance of public water body amounts to dereliction of public duty for which they should be held responsible and also be punished.

(viii) For any other relief/reliefs the Hon'ble Court may deem fit and proper in 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 Circle

Officer Parsa, District Saran at Chapra to consider and decide

the representation 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 Circle Officer

Parsa, District Saran at Chapra 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.

Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

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 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 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 Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

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 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 Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

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 Circle Officer Parsa,

District Saran at Chapra within a period of four weeks from

today by filing a representation for redressal of the

grievance(s);

(b) The Circle Officer Parsa, District Saran at Chapra

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 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 Patna High Court CWJC No. 8842 of 2021 dt.19-07-2021

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) veena/rajiv-

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