Patna High Court
Ishwarchand Prasad vs The State Of Bihar on 19 July, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8827 of 2021
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1. Ishwarchand Prasad son of Late Mahaveer Prasad resident of Village- Pirari,
P.O.- Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
2. Ramchandra Sah son of Late Chhatu Sah resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
3. Raju Kumar son of Pannalal Prasad, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
4. Lakshmi Sah son of Late Nathuni Sah resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
5. Fida Ansari son of Dukhi Miya resident of Village- Pirari, P.O.- Pirari, P.S.-
Inarwa, District- West Champaran (Bettiah).
6. Umesh Sah son of Late Nathuni Sah resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
7. Md. Saklein, S/o- Shaukat Ali, resident of Village- Pirari, P.O.- Pirari, P.S.-
Inarwa, District- West Champaran (Bettiah).
8. Shah Mahamad Ansari S/o- Late Hawaldar Miya, resident of Village- Pirari,
P.O.- Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
9. Mokhatar Miya S/o- Late Jumarati Miya resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
10. Bagad Miya S/o- Late Maksud Devan, resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
11. Vakeel Miya S/o- Late Jumraati Miya resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
12. Mustafa Devan S/o- Late Lateef Devan, resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
13. Vaidhnath Paswan S/o- Late Jag Paswan, resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
14. Mohan Sah S/o- Late Vishun Sah resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
15. Mojahir Miya S/o- Late Badri Miya, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
16. Lal Bahadur Sah S/o- Late Sahdev Sah resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
17. Ramashray Sah S/o- Late Chhadu Sah resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
18. Raju Ranjan Prasad S/o- Shivnath Prasad, resident of Village- Pirari, P.O.-
Pirari, P.S.- Inarwa, District- West Champaran (Bettiah).
19. Majid Miya S/o- Late Sikandar Miya, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
20. Mojdar Miya S/o- Late Badri Miya resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
21. Abdullah Miya S/o- Ajij Miya, resident of Village- Pirari, P.O.- Pirari, P.S.-
Inarwa, District- West Champaran (Bettiah).
22. Junab Miya S/o- Noor Miya resident of Village- Pirari, P.O.- Pirari, P.S.-
Inarwa, District- West Champaran (Bettiah).
23. Abbas Ansari S/o- Mojajhil Miya resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
24. Nadim Miya S/o- Eijajul Devan resident of Village- Pirari, P.O.- Pirari, P.S.-
Inarwa, District- West Champaran (Bettiah).
25. O, Male, Aged About 37 years, S/o Eijajul Devan,
26. Akim Ahmad S/o- Late Hadish Miya, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
27. Shaukat Ali S/o- Late Havaldar Miya, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
28. Satar Miya S/o- Late Sikandar Miya resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
29. Motilal Prasad S/o- Late Saral Sah, resident of Village- Pirari, P.O.- Pirari,
P.S.- Inarwa, District- West Champaran (Bettiah).
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Department of Urban Development, Government of
Bihar, Patna.
3. The Principal Secretary, Department of Rural Works, Government of Bihar,
Patna.
4. The Divisional Commissioner, Tirhut Division, Muzaffarpur.
5. The District Collector-cum- Magistrate, West Champaran (Bettiah).
6. The Superintendent of Police, West Champaran (Bettiah).
7. The Deputy Development Commission, West Champaran (Bettiah).
8. The Sub Divisional Officer, Narkatiyaganj, West Champaran (Bettiah).
9. The Circle Officer, Mainatand Circle, West Champaran (Bettiah).
10. The Block Development Officer, Mainatand Block, West Champaran
(Bettiah).
11. The Officer-In- Charge, Inarwa Police Station, West Champaran (Bettiah).
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Shashi Bhushan Kumar, Advocate
For the Respondent/s : Mr. Yogendra Prasad Sinha, AAG 7
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(The proceedings of the Court are being conducted through Video Conferencing and the
Advocates joined the proceedings through Video Conferencing from their residence.)
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
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.
Petitioners have prayed for the following relief(s):-
"(i) For issuance of writ in the nature of
mandamus commanding upon the respondents
to remove encroachment from the Government
land which is registered in the Khatiyan as Gair
Majuarua land and also the removal of
obstruction from the Nala from which Sewage
water of village was flowing as due to the
obstruction in the same the sewage water is
logging on the main road of the village and
resident of the village are facing acute problem
and the resident is also facing problem to
approach school and hospitals due to the water
lagging upon the main village road.
(ii) For issuance of writ in the nature of
mandamus commanding upon the respondents
for removal of encroachment from the part of
the land bearing plot no. 565 khata no. 2 Mauja-
Pirari, thana- 239, Area 5 acre 55 decimal which
is in the nature of Gair Majurua land from
which discharged water from the Nala is
flowing. The power full person the help from
musclemain of the village has encroached upon
the said land and constructed building and
obstructed the flow of Nala by making
obstruction in the Nala (drain) water and same
is being used by the general public including,
villagers since a long time.
(iii) And for issuance of any other relief
or relief(s) for which the petitioners are entitled
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
for."
After the matter was heard for some time, learned
counsel for the petitioners, under instructions, states that
petitioners shall be content if a direction is issued to the
authority concerned 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).
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)
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
"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
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
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
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
writ, order, or direction under Article 226 of the
Constitution."
As such, petition stands disposed of in the following
terms:-
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
(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 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;
(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;
Patna High Court CWJC No.8827 of 2021 dt.19-07-2021
(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-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date
Transmission Date NA
