Patna High Court
Rahul Kumar vs The State Of Bihar on 2 August, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.22699 of 2019
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1. Rahul kumar S/o Ramshehi Singh Resident of Village- Bathna Ram, P.o.-
Pakari Pakohi, P.s.- Karja, District- Muzaffarpur
2. Uday Shankar Prasad Nirala S/o Phunni Sah Resident of Village- Bishanpur
Govind Urf Rautania, P.o.- Chamarua, P.s.- Karja, District- Muzaffarpur
3. Md. Alam S/o Late Nathu Mian Resident of Village- Kazipur Goriyara, P.o.-
Chamarua, P.s.- Karja, District- Muzaffarpur
4. Ravi Shankar Sah S/o Late Bhimbali sah Resident of Village-
Mahammadpur Sube Urf Bangari, P.o.- Marwan, P.s.- Karja, District-
Muzaffarpur
5. Uma Shankar Rai S/o Ramchandra Rai Resident of Village- Salahpur, P.o.-
Marwan, P.s.- Karja, District- Muzaffarpur
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna
2. The Principal Secretary Urban Development and Housing Department,
Govt. of Bihar, Patna
3. The Divisional Commissioner Tirhut Division, Muzaffarpur
4. The District Magistrate Muzaffarpur, District- Muzaffarpur
5. The Muzaffarpur Municipal Corporation Muzaffarpur through the Municipal
Commissioner
6. The Bihar State Pollution Control Board, Patna through the Chairman
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Vijay Kumar Singh, Adv
For the Respondent/s : Mr.Subhash Prasad Singh ( GA3 )
Mr. Ghanshyam Sharma, AC to GA-3
For Pollution Board : mr. Abhimanyu Singh, Adv
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR )
Date : 02-08-2022
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
Learned counsel for the State submits that the issue
raised in this PIL can be best resolved at the local level by the
appropriate authorities.
After the matter was heard for some time, learned
counsel for the petitioners, under instruction, states that
petitioners shall be content if a direction is issued to the
respondent no. 6 Bihar State Pollution Control Board, Patna
through the Chairman, to consider and decide the
representation which the petitioners shall be filing within a
period of four weeks from today for redressal of the
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
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.
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
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
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
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)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)
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
"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."
As such, petition stands disposed of on the following
terms:-
(a) Petitioner shall approach the authority concerned
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
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) The order assigning reasons shall be communicated
to the petitioner;
(d) Needless to add, while considering such
representation, principles of natural justice shall be followed
and due opportunity of hearing afforded to the parties;
(e) Also, opportunity to place on record all relevant
materials/documents shall be granted to the parties;
(f) Equally, liberty is reserved to the petitioners to take
recourse to such alternative remedies as are otherwise available
in accordance with law;
(g) 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;
(h) Liberty reserved to the petitioner to approach the
appropriate forum/Court, should the need so arise subsequently
Patna High Court CWJC No.22699 of 2019 dt.02-08-2022
on the same and subsequent cause of action;
(i) 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, stands disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
ranjan/-
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