Patna High Court

Prahlad Prasad vs The State Of Bihar on 4 August, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.9880 of 2022
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Prahlad Prasad son of Late Bisheshwar Prasad Sao, resident of Village- Chewara, P.O.- Chewara, P.S.- Chewara, District- Sheikhpura.

... ... Petitioner/s Versus

1. The State of Bihar

2. Principal Secretary, Department of Forest and Environment, Government of Bihar, Patna.

3. The Chairman, Bihar State Pollution Control Board, Parivesh Bhawan, Patliputra Industrial Area, Digha, Patna- 800010.

4. The Member Secretary, Bihar State Pollution Control Board, Parivesh Bhawan, Patliputra Industrial Area, Digha, Patna- 800010.

5. The Regional Officer, Regional Office, Begusarai.

6. The Divisional Commissioner, Munger Division, Munger.

7. The District Magistrate, Sheikhpura.

8. The Sub- Divisional Officer, Sheikhpura.

9. The Apar Sub- Divisional Officer, Sheikhpura.

10. The Officer-in- Charge, Chewara Police Station, Sheikhpura.

11. Anil Sao son of Late Bisheshwar Sao resident of Village- Chewara, P.O. and P.S.- Chewara, District- Sheikhpura.

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

For the Petitioner/s : Mr. Sudhir Kumar, Advocate Mr. Biresh Kumar Sinha, Advocate For the Respondent/s : Mr. Awanish Nandan Sinha, GP-21 Mr. Parijat Saurav, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 04-08-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):- Patna High Court CWJC No.9880 of 2022 dt.04-08-2022

After the matter was heard for some time, finding the

Bench not to be in favour with the submissions made across the

Bar, 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

preferably within a period of four months from the date of its Patna High Court CWJC No.9880 of 2022 dt.04-08-2022

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 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 Patna High Court CWJC No.9880 of 2022 dt.04-08-2022

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 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, Patna High Court CWJC No.9880 of 2022 dt.04-08-2022

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

i.e. Respondent No. 4, namely The Member Secretary, Bihar

State Pollution Control Board, Parivesh Bhawan, Patliputra

Industrial Area, Digha, Patna within a period of four weeks

from today by filing a representation for redressal of the

grievance(s);

(b) The said authority shall consider and dispose it of

expeditiously by passing 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;