Radhe Ray vs The State Of Bihar
2021 Latest Caselaw 4751 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.16694 of 2021
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1. Radhe Ray, Son of Late Ram Karan Ray Resident of Ward No.6 Gram Panchayat Raj Hasanpur Surat, Resident of Village- Hasanpur, P.O. and P.S.- Patory, District- Samastipur.

2. Ram Swarup Ray Son of Chhechhan Ray Resident of Ward No.6, Gram Panchayat Raj Hasanpur Surat, Resident of Village- Hasanpur, P.O. and P.S.- Patory, District- Samastipur.

3. Umesh Kumar Sahani Son of Jagdish Sahani Resident of Ward No.14, Gram Panchayat Raj Hasanpur Surat, Resident of Village- Hasanpur, P.O. and P.S.- Patory, District- Samastipur.

... ... Petitioner/s Versus

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

2. The State Election Commissioner, Bihar, Sone Bhawan, 3rd Floor, Beerchand Patel Marg, Patna- 800001, Bihar.

3. The District Magistrate cum District Electoral Officer, Samastipur.

4. The Sub-Divisional Officer cum Executive Officer, Nagar Parishad, Patory, District- Samastipur.

5. The Block Development Officer cum Block Electoral Officer, Patory, District- Samastipur.

6. The Panchayat Secretary, Gram Panchayat Raj Taradhamaun, P.S.- Patory, District- Samastipur.

7. The Panchayat Secretary, Gram Panchayat Raj Hasanpur Surat, P.S.- Patory, District- Samastipur.

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

For the Petitioner/s : Mr.Ajay Kumar Singh, Mr. Surendra Kumar Mishra, Mr. Amit Kumar, Advocates For the Respondent/s : Mr.Prabhat Kr. Verma (Aag3) ====================================================== 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 : 21-09-2021 This petition was filed on 17.09.2021, which was Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

registered and listed immediately, and is taken up today for

hearing.

Heard learned counsel for the parties.

Petitioners have prayed for the following relief(s):-

"For issuance of an appropriate writ in the nature of certiorari or any other appropriate writ/ writs, order/orders, direction / directions, command/commands for quashing the part of memo no.1557, Prapatra-2 dated 02.07.2021 as contained in Annexure -5 passed by respondent no.3 and further for direction to declare ward no.4, 5, 6-14 in Nagar Parishad Shahpur Patory as per Annexure-1 which was added wrongly in Hasanpur." "

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 Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

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 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 Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

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."

After the matter was heard for some time, learned

counsel for the petitioners, under instructions, states that

petitioners shall be content if a direction is issued to the Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

authority concerned, i.e., Principal Secretary, Urban

Development Department, Government of Bihar, Patna or

any of the statutory authority to consider and decide the

representation which the petitioners 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 petitioners, 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) Petitioners 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 Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

representation, principles of natural justice shall be

followed and due opportunity of hearing afforded to the

parties;

(d) Equally, liberty is reserved to the petitioners to

take recourse to such alternative remedies as are otherwise

available in accordance with law;

(e) We are hopeful that as and when petitioners

take 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 petitioners to approach

the Court, if the need so arises subsequently on the same

and subsequent cause of action;

(g) Liberty also reserved to the petitioners 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 Patna High Court CWJC No.16694 of 2021 dt.21-09-2021

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          23.09.2021
Transmission Date       NA