Patna High Court
Md. Shahid Hussain vs The State Of Bihar on 2 February, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1434 of 2022
======================================================
1. Md. Shahid Hussain S/o Jamir Khan @ Zameer Khan Resident of Village-
Dumari, P.S.-Manjhi, District-Saran.
2. Tajuddin S/o Mohammad Sarfuddin Resident of Vilalge-Gudari Bazar Near
at Maszid, P.S.-Chapra, District-Saran.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Human Resource Development Cum Education
Department, Government of Bihar, Patna.
3. The Director, Mass Education, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shashi Shekhar Tiwary, Advocate
For the Respondent/s : Mrs. Binita Singh, SC-28
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
=======================================================
(The proceedings of the Court are being conducted by
Hon'ble the Chief Justice/ Hon'ble Judges through
Video Conferencing from their residential
offices/residences. Also, the Advocates and the Staffs
joined the proceedings through Video Conferencing
from their residences/offices.)
=======================================================
Date : 02-02-2022
Heard learned counsel for the parties.
2. Petitioners have prayed for the following
relief(s):-
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
3. After the matter was heard for some time, finding
the Bench not to be agreeable with the submissions made
across the Bar, more so, on account of delay and laches, learned
counsel for the petitioner, under instructions, seeks permission
to withdraw the present petition reserving liberty to approach
the Respondent No. 3, namely the Director, Mass Education,
Government of Bihar, Patna by filing a representation venting
out his grievance, subject matter of the present lis, which the
petitioners shall be filing within a period of four weeks from
today.
4. 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
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
filing along with a copy of this order.
5. Statement accepted and taken on record.
6. 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
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
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
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
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."
7. As such, petition stands disposed of in the
following terms:-
(a) Petitioners shall approach the authority
concerned i.e. Respondent No. 3 namely the Director, Mass
Education, Government of Bihar, Patna within a period of four
weeks from today by filing a representation for redressal of the
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
grievance(s);
(b) The said authority 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 petitioner to
take recourse to such alternative remedies as are otherwise
available in accordance with law;
(g) 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;
(h) 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;
Patna High Court CWJC No.1434 of 2022 dt.02-02-2022
(i) We have not expressed any opinion on merits.
All issues are left open;
(j) 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;
8. The petition stands disposed of in the aforesaid
terms.
9. Interlocutory Application(s), if any, stands
disposed of.
(Sanjay Karol, CJ)
(S. Kumar, J)
Amrendra/P.K.P.
AFR/NAFR
CAV DATE
Uploading Date 07.02.2022
Transmission Date
