Patna High Court

Praveen Kumar Mishra vs The State Of Bihar on 9 March, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.3434 of 2022
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1. Praveen Kumar Mishra S/o Jai Prakash Mishra @ Jai Prakash Narayan Mishra, R/o Village-Senduar, P.O.-Rampur Bindalal, P.S.-Ekma, Dist-Saran at present residing at Ram Krishnapuri, P.O.-Chapra, P.S.-Bhagwan Bazar, Dist-Saran (Chapra)-841301.

2. Ranjeet Kumar Singh, s/o Late Harendra Singh, R/o Village-Mashrak Nehru Tola, P.O. and P.S.-Mashrak, District-Saran (Chapra)-841417.

3. Vijay Kumar Singh, s/o Virendra Singh @ Birendra Singh, R/o Village-

Galimapur, P.O.-Mashrak, P.S.-Taraiya, District-Saran (Chapra)-841417.

4. Sanjay Kumar Singh, S/o Late Awadhesh Kumar Singh, R/o Village and P.O.-Bhorhan, P.S.-Panapur, Mashrak, District-Saran (Chapra)-841417.

5. Manoj Kumar Singh, S/o Satyadeo Singh, R/o Village-Bali Bishunpura, P.O.-Bansohi, P.S.-Mashrak, District-Saran (Chapra)-841417.

6. Gajendra Singh, S/o Chandrma Singh, R/o Village and P.O. and P.S.-

Mashrak, District-Saran (Chapra)-841417.

7. Prema Devi, D/o Late Vishwanath Prasad, R/o Village and P.O. and P.S.-

Mashrak, District-Saran (Chapra)-841417.

... ... Petitioner/s Versus

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

2. The Principal Secretary, Human Resources 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 : Mr. Ajay Kr. Rastogi, AAG-10 Mr. Prabhat Ranjan Singh, AC to AAG-10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 09-03-2022

Heard learned counsel for the parties.

Petitioners have prayed for the following relief(s):- Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

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 petitioners, 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 Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

out his grievance, subject matter of the present lis, which the

petitioners shall be filing within a period of four weeks from

today.

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 Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

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 either in discharge of a public duty or by operation of Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

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 Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

As such, as mutually prayed for, petition stands

disposed of in the following terms:-

(a) Petitioners 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;

communicated to the petitioners;

(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 Patna High Court CWJC No.3434 of 2022 dt.09-03-2022

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;

(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;