Patna High Court

Mithilanchal Koshi Vikash Samiti vs The State Of Bihar on 20 January, 2023

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.865 of 2023
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Mithilanchal Koshi Vikash Samiti (Registered) Mahadeo Sthan, Hatni, District- Madhubani, through its Chairman namely Shambhu Nath Mishra, Male, aged about 70 years, Son of Late Tapenand Mishra, Resident of Village- Hatni, P.S.- Ghoghardiha District- Madhubani. Presently residing at B-23, Janyug Apartment, Sector 14, Extn. Rohini, Sector-7, P.S.- Rohini North- West Delhi.

... ... Petitioner/s Versus

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

2. The Additional Chief Secretary, Department of Health, Government of Bihar, Patna.

3. The District Health Society, District- Madhubani, through its Chairman.

4. The District Magistrate, Madhubani-cum-Chairman, District Health Society, Madhubani.

5. The Civil Surgeon-cum-Member Secretary, District Health Society, Madhubani.

6. The Additional Collector, Madhubani

7. The Sub-Divisional Officer (S.D.O.), Phulparas, District- Madhubani.

8. The Circle Officer (C.O.), Ghoghardiha, District- Madhubani.

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

For the Petitioner/s : Mr.Pramod Mishra, Advocate For the Respondent/s : Mr.Ajay Behari Sinha (GA 8) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY 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 : 20-01-2023

Petitioner has prayed for following relief (s) : -

"That the present writ application is being filed by Patna High Court CWJC No.865 of 2023 dt.20-01-2023

way of Public Interest Litigation (P.L.L.) is being filed on behalf of the petitioner organization above- named through its Chairman for issuance of necessary direction to the Respondents concerned to construct/ open the proposed community health centre at village-Hatni, Anchal-Ghoghardiha, District- Madhubani as initially proposed and scheme passed by District Society for which even the land had been earmarked at Ghoghardiha or Hatni village, but under some political pressure and illegal influence the same scheme of Health centre is being shifted and constructed under village- Belha which is home village of a Minister of Bihar Government, whereas the said village-Belha is just adjacent to Sub- Divisional Headquarter, Phulparas where already there is a good and big Hospital exists and on the contrary the Block/Anchal- Ghoghardiha or village- Hatni is far away from said place and there has been no Government Hospital for a big population of this area which is a flood prone area due to which the public at large of this Anchal remain deprived of good Health services. And/or any other relief/reliefs to which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case."

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.

After the matter was heard for some time, finding Patna High Court CWJC No.865 of 2023 dt.20-01-2023

the Bench not to be agreeable with the submissions made by

learned counsel for the petitioner, 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.

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) Patna High Court CWJC No.865 of 2023 dt.20-01-2023

"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 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 Patna High Court CWJC No.865 of 2023 dt.20-01-2023

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:

'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 Patna High Court CWJC No.865 of 2023 dt.20-01-2023

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.5, namely The Civil Surgeon-

cum-Member Secretary, District Health Society,

Madhubani 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;