Shyam Kishor Yadav vs The State Of Bihar Through The ...
2021 Latest Caselaw 3515 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10031 of 2021
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Shyam Kishor Yadav, Son of Rameshwar Yadav, resident of Village - Jajal, P.S. - Sikandra, Patamar, District- Jamui.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Public Health Engineering Department, Bihar, Patna.

2. The District Magistrate, Jamui.

3. The Executive Engineer, Public Health Engineering Department, Jamui.

4. The Chief Medical Officer - cum - Civil Surgeon, Jamui.

5. The Block Development Officer, Sikandara, Jamui.

6. The Circle Officer, Sikandara, Jamui.

7. The Incharge Medical Officer, Primary Health Centre, Sikandra, Jamui.

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

For the Petitioner/s : Mr.Subodh Kumar Barnwal, Advocate, Mr. Arvind Kuamr Sinha, Advocate 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) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 20-07-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s).

"(I) To issue an appropriate order/orders, direction/directions including a writ preferably in the nature of mandamus commanding and directing upon the respondents to stop the illegal construction of Boring and Water Tank in the land alloted to the Primary Health Centre, Jaajal, Sikandara appertaining to Khata No. 123, Khesra No. 156.

Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

(ii) To direct the respondents to remove the encroachment from the land in question exclusively owns and possessed by the Primary Health Centre, Jaajal, Sikandara in which there is illegal construction of Boring and Water Tank is being done by the respondents Public Health Engineering Department, Jamui.

(iii) To direct the respondent to transfer the land in favour of the Primary Health Centre situated in Jajal under Sikandara block taking into the consideration that despite availability of building of Primary Health Centre the same is being running in the rental house.

(iv) To any other Relief/Reliefs to which the petitioner may be found entitled in the facts and circumstances of the case."

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 Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

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 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 Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

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."

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 i.e. District Magistrate, Jamui, to consider

and decide the representation which the petitioner shall be Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

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.

As such, petition stands disposed of in the

following terms:-

(a) Petitioner shall approach the authority

concerned i.e. District Magistrate, Jamui, 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;

Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

(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 arises subsequently on the same

and subsequent cause of action;

(g) Liberty also reserved to the petitioner to make

a mention for listing of the petition on priority basis. As

and when any such mention is made, Registry shall take

steps for listing the petition at the earliest.

(h) We have not expressed any opinion on merits.

All issues are left open;

(i) 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;

Patna High Court CWJC No.10031 of 2021 dt.20-07-2021

The petition stands disposed of in the aforesaid

terms.

Interlocutory Application(s), if any, stands

disposed of.

(Sanjay Karol, CJ)

( S. Kumar, J) Rajiv/veena-

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