Patna High Court

Ram Dayal Vin vs The State Of Bihar on 4 February, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.1479 of 2022
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Ram Dayal Vin, son of Brahmdeo Vin @ Dharmdayal Vin, Resident of Village-Bhiswa Khalsa, P.O.-Dumar Narendra, Anchal and P.S. and Prakhand- Bhorey, District-Gopalganj.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Main Secretariat, Patna-800015.

2. The Chief Secretary, Government of Bihar, Main Secretariat, Patna-800015.

3. The Additional Chief Secretary, Department of Revenue and Land Reforms, Government of Bihar, Main Secretariat, Patna-800015.

4. The Additional Chief Secretary, Department of Education, Government of Bihar, Vikas Bhawan, Patna-23.

5. The Principal Secretary, Department of General Administration, Government of Bihar, Main Secretariate, Patna-800015.

6. The Director, Primary Education, Bihar, Patna.

7. The Divisional Commissioner, Saran Division, Chapra.

8. The Collector and Zila Padadhikari, Gopalganj.

9. The Additional Collector, Gopalganj.

10. The Additional Collector (Public Grievance Redressal), Gopalganj.

11. The Sub-divisional Officer, Hathua, District-Gopalganj.

12. The Sub-divisional Public Grievance Redressal Officer, Hathua, District-

Gopalganj.

13. The Circle Officer Anchal (Adhikari), Bhorey, District-Gopalganj.

14. The Station House Officer, Bhorey Police Station, Bhorey, District-

Gopalganj.

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

For the Petitioner/s : Mr.Suresh Prasad Bhakta, Advocate For the Respondent/s : Mr.Sajid Salim Khan (S.C. 25)

====================================================== 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.) Patna High Court CWJC No.1479 of 2022 dt.04-02-2022

Date : 04-02-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

"(i) For issuance of appropriate writ/order/direction commanding the State of Bihar and it's authority particularly respondent no. 13 Circle Officer (Anchal Adhikari) Bhorey, District- Gopalganj to remove the encroachment from the Public Land bearing Plot No. 316, Khata No. 141 of Mauza Viswa Khalsa (Thana No. 225) for smooth functioning and running of newly created Primary School under Anchal-Bhorey District- Gopalganj in terms of the appellate order dated 3.3.2020 (Annexure-3) in Paribad No. 515110102081901873/1A passed by the First Appellate authority under the Bihar right to Public Grievance Redressal Act, 2015 under the provisions of the Bihar Public Land Encroachment Act, 1956 as well as instruction mentioned in Letter No. 1323(6) dated 28.10.2019 (Annexure-4) issued under signature of the Additional Chief Secretary, Department of Revenue and Land Reforms Bihar, Patna as early as possible.

(ii) For issuance of appropriate writ/order/direction commanding the State of Bihar and it's authorities to take proper action under the Provisions of the Bihar Right to Publice Grievance Redressal Act, 2015 for non compliance of the Appellate order dated 3.3.2020 (Annexure-3) against the present Circle Officer (Anchal Adhikari) Bhorey, District- Gopalganj as he has voluntarily failed to take any proper action for compliance of the order aforesaid.

(iii) For issuance of any other relief/relief's which is essential in the eye of law in the facts and circumstance of the case."

We find that petitioner has an alternative remedy, equally Patna High Court CWJC No.1479 of 2022 dt.04-02-2022

efficacious in term of and under the provisions of the Bihar Public

Land Encroachment Act, 1956.

Confronted as to why the petitioner has 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

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 Patna High Court CWJC No.1479 of 2022 dt.04-02-2022

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 Patna High Court CWJC No.1479 of 2022 dt.04-02-2022

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, 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 Patna High Court CWJC No.1479 of 2022 dt.04-02-2022

terms:-

(a) Liberty reserved to the petitioner to take recourse to

such remedies as are otherwise available in accordance with law;

(b) 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;

the matter expeditiously by a reasoned and speaking order preferably

within a period of four months from the date of approaching the

petitioner before the appropriate authority;

(d) Needless to add, while considering and deciding the