Patna High Court

Sapna Kumari vs The State Of Bihar Through The ... on 25 October, 2021

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.18004 of 2021
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Sapna Kumari, Wife of Paras Mani Resident of Village - Rasiyari, P.S. - Ghanshyampur, District- Darbhanga.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary Government of Bihar, Patna.

2. The principal Secretary Water Resource Department, Government of Bihar, Patna.

3. The Principal Secretary, Rural Works Department, Government of Bihar, Patna.

4. The Principal Secretary, Road Construction Department, Government of Bihar, Patna.

5. The District Magistrate, Darbhanga.

6. The Executive Engineer, Rural Works Department Works Division, Benipur, Darbhanga.

7. The Executive Engineer, Water Resource Division, Darbhanga.

8. The Assistant Engineer Rural Works Department, Benipur, Darbhanga.

9. The Junior Engineer, Rural Works Department, Benipur, Darbhanga.

10. Amar Nath Jha Son of Bhagwat Jha Resident of Village - Nawada, P.S. -

Bahera, District- Darbhanga.

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

For the Petitioner/s : Mr.Md. Shakir Ahmad, Advocate Mr. Gajendra Kumar, Advocate Mr. Rajesh Kumar, Advocate For the Respondent/s : Mr. Amit Prakash, GA 13 ====================================================== 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 08.10.2021 which was

registered and listed immediately, and is taken up today for

hearing.

Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

Heard learned counsel for the parties.

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

(i) For issuance of appropriate writ/writs, order/orders, direction/directions commanding and directing the respondent authorities especially respondent no. 3, 5, 6 to prepare a draft plan for construction of road from Rasiyari to Shankerpur to Neema by taking into consideration the different flow of river Gehuan as respondent authorities are constructing Rasiyari-Shankarpur Neema road in a hap hazard manner by blocking the main flow and constructing bridge of 60 meter on the East of Rasiyari village and West of Shankerpur village and filled up the middle part of the river which resulted into diversion of Gehuan river flow towards the side of Rasiyari village causing threat of flood to approx. 20,000 resident of Rasiyari Village.

(ii) For issuance of appropriate writ/writs, order/orders, direction/directions to the respondent authorities of water Resource Department i.e. respondent no. 2 and 7 to take step to strengthen the embankment of Gehuan river from the side of Rasiyari village and further for the security and safety of village Rasiyari from the erosion of the banks due to the diversion of river flow towards the bank of Rasiyari village and due to such diversion approx. 500 houses of Rasiyari village directly came under the river bed of river Gehuan and if timely measure and steps are not taken on time then certainly those houses could flow and could get damaged.

Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

(iii) For issuance of appropriate writ/writs, order/orders, direction/directions commanding the respondent authorities to construct a additional bridge of 60 meters in the middle of the river Gehuan in between Rasiyari and Shankerpur and allow the river to flow in natural way as filled up road constructed at the middle of the river Gehuan in the year 2019 has already broken and approx. 60 meters silt filled up pitched road has already flown away in the flood of 2020 however instead of constructing a bridge in the middle of river, respondent authorities again started maintenance work on the broken part in the early part of the year 2021 but again said part flew away in the flood of year 2021.

(iv) For issuance of appropriate writ/writs, order/orders, direction/directions commanding the respondent authorities to till up the Bridge from side of Rashiyari Village upto 30 meter and further construct the 40 meter bridge from east of the existing bridge so that 500 houses directly come under river flow may be save.

(v) For issuance of any other relief/reliefs for which the resident of village Rasiyari and other adjoining area of river Gehuan who are going to be affected due to defecting construction of Rasiyari Shankarpur Neema Road."

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:- Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

"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 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) Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

"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 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 Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

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

Respondent No. 4 namely the Principal Secretary, Road

Construction Department, Government of Bihar, Patna 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 Respondent No. 4

namely the Principal Secretary, Road Construction

Department, Government of Bihar, Patna 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:-

Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

(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;

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;

Patna High Court CWJC No.18004 of 2021 dt.25-10-2021

(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;