Rajendra Prasad vs The State Of Bihar
2021 Latest Caselaw 4973 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.18064 of 2021
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Rajendra Prasad, son of Late Satnarayan Prasad, resident of Village Ahirauliya, P.S. Paharpur, District East Champaran.

... ... Petitioner/s Versus

1. The State of Bihar through the Secretary, Revenue and Land Reforms Department, Bihar, Patna.

2. The Collector-cum- District Magistrate, East Champaran at Motihari.

3. The Sub. Divisional Magistrate, Areraj, District East Champaran.

4. The Circle Officer, Paharpur Anchal, District East Champaran.

5. The S.H.O., Paharpur P.S., District East Champaran.

6. Mukhiya, Gram Panchayat, Ahirauliya (Tejpurwa), P.S. Paharpur, District East Champaran.

7. Pradip Sah son of Late Shankar Sah

8. Bhola Sah son of Late Shivji Sah

9. Jag Sah son of Late Bhagrasan Sah

10. Pramod Kumar son of Late Kamal Sah

11. Subhash Kumar Arya son of Ram Narayan Prasad, All residents of Village- Ahirauliya, P.S. Paharpur, District East Champaran.

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

For the Petitioner/s : Mr.Umesh Chandra Verma, Advocate Mr. Sharad Kumar Verma, Advocate Ms. Rashmi Jha, Advocate Mr. Abhishek Kumar, Advocate For the Respondent/s : Mr. Sajid Salim Khan, SC 25 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 25-10-2021

This petition was filed on 18.10.2021, which was

registered and listed immediately, and is taken up today for

hearing.

Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

Heard learned counsel for the parties.

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

"For issuance of writ, order or direction

particularly in the nature of Mandamus, directing

the respondent authorities, especially the Circle

Officer, Paharpur Circle, East Champaran

(Motihari), the respondent no. 4 to remove the

encroachment of Giarmajarua Aam Land,

appertaining to Khata No. 140, Khesra No. 733,

area 19 katha in total situated in Mauja:

Ahirauliya, which was encroached from its north

part by the encroachers- respondent no. 7 to 9 at

instance of local Mukhiya (Respondent No. 6)

constructing the permanent pucca shed for goad

farming despite that the respondents authorities

have not taken any action against the aforesaid

encroachers."

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 Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

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 King's Bench (now Queen's Bench) directing Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

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.'

25. In the cases before us there was no Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

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

Respondent No. 2 namely the Collector-cum-District

Magistrate, East Champaran at Motihari 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 Collector-cum-

District Magistrate, East Champaran at Motihari 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) Petitioner shall approach the authority concerned

within a period of four weeks from today by filing a

representation for redressal of the grievance(s); Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

(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

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 Patna High Court CWJC No.18064 of 2021 dt.25-10-2021

i.e. physical mode;

The petition stands disposed of in the aforesaid terms.

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( A. M. Badar, J)

Sujit/Ashwini AFR/NAFR CAV DATE Uploading Date 26.10.2021 Transmission Date