Patna High Court
Shabnam Naidoo vs The State Of Bihar on 15 April, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4831 of 2022
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1. Shabnam Naidoo, W/o Ashok Kumar, Resident of Radhaganj, Kuwadidih,
P.S.-Bhorey, District-Gopalganj.
2. Madhubala Naidoo, w/o Ramu Ram, Resident Of Lachhan Tola, Ps
Fulwaria, District Gopalganj
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Urban Development and
Housing Department, Govt. of Bihar, Patna.
2. The Principal Secretary, Urban Development and Housing Department,
Govt. of Bihar. Patna.
3. The Bihar State Pollution Control Board, through its Chairman, Bihar,
Patna.
4. The Secretary, Bihar State Pollution Control Board, Bihar, Patna.
5. The Collector Cum District Magistrate, Gopalganj.
6. The Circle Officer, Mirganj, Dist.-Gopalganj.
7. The Executive Officer, Nagar Panchayat, Mirganj, Dist. Gopalganj.
8. The Nagar Panchayat, Mirganj through its Executive Officer, Dist-
Gopalganj.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Uday Pratap Singh, Advocate
For the Respondent/s : Mr.Yogendra Prasad Sinha (Aag7)
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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 : 15-04-2022
Heard learned counsel for the parties.
Petitioners have prayed for following reliefs:-
Patna High Court CWJC No.4831 of 2022 dt.15-04-2022
We find that petitioners have an alternative remedy, equally
efficacious in term of and under the provisions of the Bihar Public
Land Encroachment Act, 1956.
Confronted as to why the petitioners have not taken
recourse to such remedies, we see no answer forthcoming.
We see that the present petition is in the nature of private
interest litigation and not public interest litigation, inasmuch as
dispute between the private parties stands highlighted. As such, we
refrain from issuing any notice.
Learned counsel for the State opposes the petition stating
that the petition is misconceived; raises disputed question of fact; is
Patna High Court CWJC No.4831 of 2022 dt.15-04-2022
not in public interest; and that the issue can be best resolved at the
local level by the appropriate authorities.
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
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
Patna High Court CWJC No.4831 of 2022 dt.15-04-2022
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
Patna High Court CWJC No.4831 of 2022 dt.15-04-2022
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."
As such, petition stands disposed of in the following
terms:-
(a) Liberty reserved to the petitioners to take recourse to
such remedies as are otherwise available in accordance with law;
(b) 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;
(c) The authority concerned shall consider and dispose of
the matter expeditiously by a reasoned and speaking order preferably
Patna High Court CWJC No.4831 of 2022 dt.15-04-2022
within a period of four months from the date of approaching the
petitioners before the appropriate authority;
(d) Needless to add, while considering and deciding the
matter, principles of natural justice shall be followed and due
opportunity of hearing afforded to the parties;
(e) Liberty reserved to the petitioners to approach the
appropriate forum/Court, should the need so arise subsequently on
the same and subsequent cause of action;
(f) We have not expressed any opinion on merits. All
issues are left open;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, shall stand disposed
of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 16.04.2022
Transmission Date NA
