Sanjeev Kumar vs The State Of Bihar
2021 Latest Caselaw 5005 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.18307 of 2021
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Sanjeev Kumar, Son of Late Ramashish Prasad Singh, Resident of Village- Berhna, ward no. -07, Bujuruk Tola, P.S.- Barh, District - Patna.

... ... Petitioner/s Versus

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

2. Principal Secretary, Urban Housing and Development Department.

3. Commissioner, Patna.

4. District Magistrate, Patna.

5. Block Development Officer, Barh.

6. Sub-Division Officer, Barh.

7. Circle Officer, Barh, Patna.

8. Director General of Police, Police Department, Govt. of Bihar, Patna.

9. Senior Superintendent of Police, Patna.

10. Superintendent of Police, Rural, Patna.

11. Executive Engineer, Office of Nagar Parishad, Barh, Patna.

12. Murli Prasad Yadav, Son of Late Ram Kishun Prasad, Resident of Mohalla -

Bazidpur, Ward No. 03, Station Road, Barh, Patna.

13. Abhinash Kumar Yadav, Son of Murli Prasad Yadav, Resident of Mohalla -

Bazidpur, ward no. 03 Station Road, Barh, Patna.

14. Sanjay Yadav Son of Murli Prasad Yadav, Resident of Mohalla - Bazidpur ward no. 03, Station Road, Barh, Patna.

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

For the Petitioner/s : Mr. Deepak Kumar Sinha, Advocate For the Respondent/s : Mr. Yogendra Pd. Sinha, AAG-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 26-10-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

"1(I). To Reopen the block road having 12 ft. wide attached with the station road having so many, commercial shops which was blocked by the respondent no. 10, l1 & 12 in support of some muscles man for the sole purpose to gain money illegally which is the way egress ingress of the shop with the main road, after violation of order dated 08.04.2021 passed by the principal secretary of Urban Housing and Development Department, Govt. of Bihar, Patna under section 435 of Bihar Municipal Corporation Amendment Act 2021.

(II) To further direction be made that after removing the encroachment of public link road attached with station road respondent no 10, 11 & 12 and other culprits be booked in criminal case to has made permanent structure of the linked road situated at Mauza Berhna, Thana no.- 70, khata no- 134 plot no - 559, 562 despite the objection of the commercial shop holder and other residents of linked road having 12 ft wide road, since 70 years ago.

(III) For direction to the Nagar Parishad, Barh enquire over the matter and removed the blocked linked road immediately because as per the assessment list prepared under municipal Act 2017 it is 12ft wide road and house of the linked road is shown as commercial for which house holders are depositing commercial tax to the Municipal Parishad, Barh.

(IV) To proceed with the other culprit of Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

govt. Administration to has not restrain the block road by way of permanent structure made by the respondent no 10 to 12 deliberately despite the knowledge of same before the encroachment.

V. For which petitioner is entitled for."

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 Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

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 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 Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

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 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 Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

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 respondent no.7, namely

Circle Officer, Barh, Patna within a period of four weeks from

today by filing a representation for redressal of the

grievance(s);

(b) Respondent No.7, namely Circle Officer, Barh,

Patna 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, Patna High Court CWJC No.18307 of 2021 dt.26-10-2021

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

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) P.K.P./Amrendra AFR/NAFR CAV DATE Uploading Date 27.10.2021 Transmission Date