Patna High Court

Jibach Bahardar @ Jivachhlal ... vs The State Of Bihar on 6 January, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.19218 of 2021
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Jibach Bahardar @ Jivachhlal Singh S/o- Jhabaru Bahardar @ Jhabro Singh, Resident of Village- Godhi Tola, Ward No. 08, Rampur Mohanpur, P.S.- Araria, Block- Araria, District- Araria.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The District Magistrate, District- Araria.

3. The Deputy Collector, Land Reformer, District- Araria.

4. The Officer In-charge Revenue Department, District- Purnea.

5. The Sub- Division Officer, District- Araria.

6. The Circle Officer, Araria, District- Araria.

7. Azim Alam S/o- Taraju Alam Resident of Village- Ward No 02 Rampur Mohan, P.S.- Bargachi, District- Araria.

8. Raju Alam S/o- Raish Alam Resident of Village- Ward No 02 Rampur Mohan, P.S.- Bargachi, District- Araria.

9. Aitwari Alam S/o- Raish Alam Resident of Village- Ward No 02 Rampur Mohan, P.S.- Bargachi, District- Araria.

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

For the Petitioner/s : Mr.Jitendra Kumar, Advocate For the Respondent/s : Mr.Rishi Raj Sinha ( S.C. 19 ) ====================================================== 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 : 06-01-2022

Heard learned counsel for the parties.

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

I. For issuance of writ/s. Order/s, direction/s in the nature of mandamus directing to the respondent concern to removal the encroachment of land bearing Khata No. Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

1318, Plot NI. 750, 755, 752, 756, 767, 833, 587, 588 total area 1 acre 10 decimal which has been got by the petitioner though Parcha bearing Gazette No. 2500 dated 07.09.1986 issued by Revenue Department, District- Purnea and same has been issued by Sub-Division Officer, Araria on dated 17.06.1988 to the petitioner and after receiving the parcha petitioner has come in procession and mutation has been made and rent receipt has been got, but private respondent no. 07 to 09 encroach the some part of land forcefully, build the building on area about 15 decimal and cultivate about 2 bigha land. II. For issuance of writ/s in nature of mandamus for commanding direction to the respondent concern to take appropriate action against the private respondent who has encroached the land and also take appropriate action against the Government body who cooperate to the private respondent for encroached the aforesaid land. III. For issuance the appropriate writ/s, order/s, direction/s to the respondent concern to demarcate the land bearing Khata No. 1318, Plot No. 750, 755, 752, 756, 767, 833, 587, 588 total area 1 acre 10 decimal which has been got by the petitioner though Parcha under Mouza Rampur, Block - Araria, District- Araria which has been published through Gazette No. 2500 dated 07.09.1986, Revenue Department, District- Purnea and same has been issued by Sub-Division Officer, Araria on dated 17.06.1988 to the petitioner and after receiving the parcha petitioner has come in procession and mutation and made the rent receipt and after demarcating further give the direction to give procession to the petitioner and who has filed several representation before authority for demarcating. IV. For issuance of any other relief/s, order/s, which may deem fit and proper of the fact and circumstances of the case and for which the petitioner is being legally entitled thereto."

Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

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 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 Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

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, 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: Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

'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."

After the matter was heard for some time, 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

filing along with a copy of this order.

Statement accepted and taken on record.

As such, petition stands disposed of in the following

terms:-

Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

(a) Petitioner shall approach the authority concerned

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;

representation, principles of natural justice shall be followed

and due opportunity of hearing afforded to the parties;

(d) Equally, liberty is reserved to the petitioner to take

recourse to such alternative remedies as are otherwise available

in accordance with law;

(e) 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;

(f) Liberty reserved to the petitioner to approach the

Court, if the need so arises subsequently on the same and

subsequent cause of action;

(g) We have not expressed any opinion on merits. All

issues are left open;

Patna High Court CWJC No.19218 of 2021 dt.06-01-2022

(h) 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;