Patna High Court
Shiv Kumar Paswan vs The State Of Bihar Through The ... on 20 September, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16057 of 2021
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Shiv Kumar Paswan Son of Sonelal Paswan Resident of Village and Post -
Mohanpur, P.s. - Patory, District- Samstipur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. District Magistrate, District- Samstispur.
3. Additional District Magistrate, District- Samastipur.
4. Sub- Divisional Officer, Patory, District- Samastipur.
5. Circle Officer, Anchal - Mohanpur, District- Samastipur.
6. Sudhakar Prasad Ray Son of Jagdish Ray
7. Ganesh Kumar Son of Late Triveni Ray
8. Ram Sewak Ray Son of Late Ayodhya Ray
9. Bala Lakhindra Ray Son of Late Shankar Ray
10. Khevan Paswan Son of Rudal Paswan
11. Suryawali Ram Son of Late Saukhi Ram
All respondents no. 6 to 11 are resident of Village and P.O. - Mohanpur, P.S.
- Patory, District- Samastipur.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Dr. Om Prakash Om, Advocate
For the Respondent/s : Mr.Sajid Salim Khan (Sc25)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
(The proceedings of the Court are being conducted through
Video Conferencing and the Advocates joined the proceedings
through Video Conferencing from their residence.)
Date : 20-09-2021
This petition was filed on 07.09.2021, which was
registered and listed immediately, and is taken up today for
hearing.
Heard learned counsel for the parties.
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
Petitioner has prayed for the following relief(s):-
" For issuance of an appropriate writ, order or
direction to the respondent concerned in particular,
respondent nos.6 to 11 who illegally with the
collusion of Circle Officer, Mohanpur and Revenue
Clerk, Anchal Mohanpur encroached the lands of
Bihar Government containing Khata No.334, Khesra
No.1151, 1152, 1153 and 1154, area 124 decimal
situated at village- Mohanpur, Anchal- Mohanpur,
District- Samastipur and on the same land houses are
constructed and also sold the lands to the relatives
from which public roads are blocked and public life
become hell and the petitioner further prays for a
direction to the concerned authority to free the
encroached lands of Bihar Government from the grip
of "Bhumaffia" and the petitioner further prays to
grant any other relief/reliefs which the Hon'ble Court
may think fit and proper under the 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
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
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
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
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
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
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."
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
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 i.e., Circle Officer, Anchal - Mohanpur,
District- 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
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
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
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 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.
Patna High Court CWJC No.16057 of 2021 dt.20-09-2021
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)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.09.2021
Transmission Date NA
