Petitioner sought writ against encroachment by relatives on public health center land. Court declined mandatory removal order due to lack of proven duty breach. Directs filing of representation for decision by authorities.
Direction to file representation within four weeks; direct authorities to decide within three months following natural justice.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10692 of 2021
======================================================
Deepak Kumar Rai, Son of late Surendra Rai resident of Village- Rajapur, P.O. and P.S. Gopalpur, District- Gopalganj.
... ... Petitioner/s
Versus
... ... Respondent 2nd set
====================================================== Appearance : For the Petitioner/s : Mr. Nagendra Rai, Mr. Navin Nikunj, Advocates For the Respondent/s : Mr. Rajeshwar Singh, GA 10
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 : 10-08-2021
Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
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“ (I) Commanding the respondents and particularly respondent number 6 to remove encroachment done by respondent number 7 & 8 over the public land of the Rajapur Health Sub- Centre Hospital, P.S. Gopalpur, DistrictGopalganj within time frame as may be stipulated by this Hon’ble Court;
II. Grant any other relief deemed fit and proper.”
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.
“ 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.”
Patna High Court CWJC No.10692 of 2021 dt.10-08-2021 3/7
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
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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.”
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 (respondent no.6, the Circle Officer, Kuchaikot Anchal, Kuchaikot, District, Gopalganj 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).
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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 three 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:-
(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 three months from the date of its filing along with a copy of this order;
(c) Needless to add, while considering such 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
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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) Liberty also reserved to the petitioner to make a mention for listing of the petition on priority basis. As and when any such mention is made, Registry shall take steps for listing the petition at the earliest.
(h) We have not expressed any opinion on merits. All issues are left open;
(i) 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;
The petition stands disposed of in the aforesaid
terms.
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Interlocutory Application(s), if any, stands disposed
of.
(Sanjay Karol, CJ)
( S. Kumar, J)
Sanjay/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 14.08.2021 |
| Transmission Date | NA |
3 issues framed by the court
Whether writ of mandamus should be issued to remove encroachment on public land without a prior proven failure of mandatory duty or demand for performance.
Whether the petitioner's grievance can be redressed through a mandatory decision on a representation filed within four weeks.
Whether the petition requires adjudication on merits or disposal based on alternative remedies available to the petitioner.
Colour shows how this judgement treated each authority
D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & OrsReferred¶26
D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & Ors, (2016) 2 SCC 653 · Who else cites this
Rural Litigation and Entitlement Kendra v. State of U.P.Referred¶29
Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 · Who else cites this
R&M Trust v. Koramangala Residents Vigilance GroupReferred¶32
R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91 · Who else cites this
Union of India v. S.B. VohraReferred¶33
Union of India v. S.B. Vohra, (2004) 2 SCC 150 · Who else cites this
Saraswati Industrial Syndicate Ltd. v. Union of IndiaReferred¶36
Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630 · Who else cites this
Deepak Kumar Rai
State of Bihar
Satish Rai
Vinay Rai
Sanjay Karol
S. Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
