Petition challenged encroachment and illegal sale of land. Court noted factual dispute and lack of public interest. Left merits open and directed authorities to consider petitioner's representation within two months.
Directed respondent authorities to consider petitioner's representation on the matter within two months.
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.6562 of 2020
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Piyush Kumar Singh, Son of Late Tanuk Lal Singh, at resident of Mohalla Dannagar Ward No. -03, P.O. and P.S. and District -Khagaria.
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Satish Kumar, Advocate Mr. Rajnish Chandra, Advocate For the Respondent/s : Mr. Lalit Kishore (AG) Mr. Anjani Kumar, AAG-4
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)
Date : 19-01-2021
Petitioner has prayed for the following reliefs:-
“1.(i) For that the petitioner with prayer to direction the Respondents to removed the Encroached land under Municipal corporation Khagaria, whereby
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and where under respondent he was Encroached and illegal sold the said land without locus situated at District -Khagaria in respect of Khata no. 53, Plot No. 1477, Jamaband No. 1897 Touzi No. 1447, Acquiring 58.86 decimils as well as 10 bigha and the such land was declared show Gairmazarua Kash Bakast.
(ii) For that the petitioner is entitled to any reliefs.”
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 Government level by the appropriate authorities.
In D. N. JEEVARAJ V. State of Karnataka (2016) 2 SCC 653 , Madan B. Lokur J. has culled out the following process for adjudication of Public Interest Litigation, more so in a writ of mandamus as is sought to be enforced, at para Nos.34 to 38 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 Hig2019h Court in this regard.
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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 partes 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.”
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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 1213)
“ 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
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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 iss2019uing 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
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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 submits that petitioner shall be content if a direction is issued to the concerned respondent(s) to consider and decide the representation which the petitioner shall be filing for redressal of the grievance(s).
Learned counsel for the respondents states that if
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such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously and preferably within a period of two months from the date of its filing along with a copy of this order.
Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law.
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.
Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties.
Liberty reserved to the petitioner to approach the Court, if the need so arises subsequently on the same and subsequent cause of action.
We have not expressed any opinion on merits. All issues are left open.
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
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i.e. physical mode.
The petition stands disposed of in the aforesaid
terms.
Interlocutory Application(s), if any, also stands
disposed of.
(Sanjay Karol, CJ)
( Prabhat Kumar Singh, J)
Amrendra/P.K.P/
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | N/A |
| Uploading Date | 20.01.2021 |
| Transmission Date | N/A |
2 issues framed by the court
Whether the writ petition regarding encroached land and illegal sale is maintainable as a public interest litigation requiring adjudication by this court.
Whether this court ought to issue directions to respondent authorities to consider the petitioner's representation regarding the encroached land.
Colour shows how this judgement treated each authority
D. N. JEEVARAJ V. State of KarnatakaReferred¶29
(2016) 2 SCC 653 · Who else cites this
Rural Litigation and Entitlement Kendra v. State of U.P.Referred¶34
1989 Supp (1) SCC 504 · Who else cites this
R&M Trust v. Koramangala Residents Vigilance GroupReferred¶36
(2005) 3 SCC 91 · Who else cites this
Union of India v. S.B. VohraReferred¶40
(2004) 2 SCC 150 : 2004 SCC (L&S) 363 · Who else cites this
Saraswati Industrial Syndicate Ltd. v. Union of IndiaReferred¶46
(1974) 2 SCC 630 · Who else cites this
Piyush Kumar Singh
The State of Bihar
District Magistrate, Khagaria
Circle Officer, Khagaria
Deputy Land Collector, Khagaria
Vijay Kumar Verma
Hon'ble the Chief Justice
Prabhat Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
