Patna High Court
Mantosh Kumar Pandit vs The State Of Bihar on 2 November, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18863 of 2021
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1. Mantosh Kumar Pandit, Son of Sato Pandit, Resident of Village- Rampur
Sibaley, Tola- Rampur, P.S.- Matihani, District- Begusarai.
2. Bajrangi Kumar, Son of Fakan Sah, Resident of Village- Rampur Sibaley,
Tola- Rampur, P.S.- Matihani, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Main
Secretariat, Patna-1.
2. District Magistrate Begusarai.
3. Superintendent of Police District- Begusarai.
4. Sub Divisional Officer Begusarai Sadar, District- Begusarai.
5. Circle Officer (Anchladhikari) Matihani Anchal, Sub Division, Begusarai
Sadar, District- Begusarai.
6. Sub Division Public Grievance Redressal Officer Begusarai.
7. Officer-in- Charge, Matihani Police Station District- Begusarai.
8. Bijay Das, Son of Garho Das
9. Garho Das, Son of Dharm Das
10. Meena Devi, Wife of Garho Das
All (8-10) Resident of Village- Godergama, Azad Chouk, P.S.- Matihani,
District- Begusarai.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Chittranjan Sinha, Sr. Advocate
Mr. Anjani Kumar Sinha, Advocate
Mr. Surya Nilambari, Advocate
For the Respondent/s : Mr. Sajid Salim Khan, SC-25
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 02-11-2021
This petition was filed on 01.11.2021, which was
registered and listed immediately, and is taken up today for
hearing.
Heard learned counsel for the parties.
Petitioners have prayed for the following relief(s):-
"(i) To direct the State authorities to
remove the encroachment on land bearing Khata
No.-342, Khesra No.-390 Rakba (Area) 1 Katha 19
Dhur, Mauza-Godergama, Thana No.-508 Village-
Rampur Shibaley, P.S. Matihani, District -
Begusarai, made by Respondents 2nd Party, who are
constructing a building on the said land despite the
order of the Anchal Adhikari dated 23.03.2021 by
which the occupation by Respondent 2nd party of
the aforementioned land has been declared an
encroachment.
(ii) To direct the State authorities to take
action in pursuance of the order dated 8-04-2021,
by which Respondents 2nd party have been directed
to remove the encroachment on the aforementioned
land as despite the said order/notice dated 8.4.2021
the authorities are sitting tight over the matter
without taking any steps to ensure demolition of the
encroachment."
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
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
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 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
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
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
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.'
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
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 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 four 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) Petitioners shall approach Respondent No.2
namely the District Magistrate, Begusarai, 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
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
it of expeditiously by a reasoned and speaking order preferably
within a period of four 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;
(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;
Patna High Court CWJC No.18863 of 2021 dt.02-11-2021
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, stands disposed
of.
(Sanjay Karol, CJ)
( P. B. Bajanthri, J)
Ashwini/Sujit
AFR/NAFR
CAV DATE
Uploading Date 03.11.2021
Transmission Date
