Patna High Court
Vishal Prakash vs The State Of Bihar on 4 October, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17382 of 2021
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Vishal Prakash, Son of Late Shatrughan Poddar, Resident of Punjabi Colony,
Ward No. 9, Police Station- Muffasil, District - Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Urban Development Department, Government of
Bihar, Patna.
3. The District Magistrate, Samastipur.
4. The Municipal Commissioner, Samastipur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Mahendra Pratap, Advocate
For the Respondent/s : Mr.Rajiv Roy (GP-1)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
Date : 04-10-2021
This petition was filed on 28.09.2021, which was
registered and listed immediately, and is taken up today for
hearing.
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
" (i) For direction the respondent o remove water
logging and maintaining the drainage system adjacent to
the public road connecting Ward No.1 to Ward No.9, of
Samastipur Municipality.
(ii) Also for directing the respondents to maintain the
existing drainage system existing near the main road
connecting Ward No. 9 to Ward No. 1 in Samastipur
Municipality.
Patna High Court CWJC No.17382 of 2021 dt.04-10-2021
(iii) And for any other relief(s) for which petitioner is
entitled in view of 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
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
Patna High Court CWJC No.17382 of 2021 dt.04-10-2021
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,
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
Patna High Court CWJC No.17382 of 2021 dt.04-10-2021
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 (respondent no.3, the District
Magistrate, Samastipur) or any of the statutory authority 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 authority
concerned shall consider and dispose it of expeditiously and
preferably within a period of four months from the date of its
Patna High Court CWJC No.17382 of 2021 dt.04-10-2021
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
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 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 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.17382 of 2021 dt.04-10-2021
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;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, stands disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Rajiv/sujit-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date
Transmission Date NA
