Disposed

Ramlakhan Prasad v. The State of Bihar

Patna HC27 Jul 2021CWJC/9630/2021

Case brief

AI extract

What is this about?

In this PIL, the petitioner sought a writ of mandamus directing authorities to connect a water channel to a river for irrigation. The Court modified the relief to direct the petitioner to file a representation with the Executive Engineer, who shall decide it expeditiously, leaving merits open.

What did the court decide?

Direction to petitioner to file representation; direction to authority to decide representation within three months via reasoned order.

Ramlakhan Prasad Vs The State of Bihar — Service and Employment | Patna HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9630 of 2021

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Ramlakhan Prasad son of Late Sukan Mahto, resident of Village-Barbadih, P.O.-Pipara, P.S.-Bhadwar, Anchal-Dumariya, District-Gaya.

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... ... Petitioner/s

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Versus

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The State of Bihar.

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The Chief Secretary, Government of Bihar, Patna.

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The Principal Secretary, Minor Water Resources Department, Government of Bihar, Patna.

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The Engineer-in-Chief, Minor Water Resources Department, Patna Division, Patna.

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The District Magistrate, Gaya.

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The Executive Engineer, Minor Water Resources Department, Gaya.

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The Sub. Divisional Officer, Sherghati, District-Gaya.

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The Assistant Engineer, Minor Water Resources Department, Sherghati, District-Gaya.

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The Circle Officer, Dumariya, District -Gaya.

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The Block Development Officer, Dumariya, District-Gaya.

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... ... Respondent/s

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Appearance :

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For the Petitioner/s : Mr. Birendra Kumar Singh, Advocate For the Respondent/s : Mr. Ajit Kumar (G.A. 9)

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(The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR)

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Date : 27-07-2021

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Heard learned counsel for the parties.

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

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“That this is an application, by way of Public Interest Litigation for issuance of an appropriate writ, order or direction, particularly in the nature of writ of Mandamus, directing and commanding the respondent and its authorities to connect the mouth of Pyne bearing Plot No. 277 passing through Plot No. 286 with Pakwa river bearing plot no. 348

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situated in under Panchayat: Nandai, Block and Anchal: Dumariya, District: Gaya in the light of order dated 17.07.1962 passed under Section 147 Cr.P.C. bearing Case No. M457/247 of 1960-61 by the learned Sri S.D. Singh, Magistrate, 1^st Class, Gaya as the water of river was flowing through the aforesaid Pyne since more than 100 years. Further petitioner and other villagers and farmers are ready to bear the own labour cost for the said work to connect the Pyne with Pakwa river for irrigation purpose to irrigation use if protection will be given by respondents authorities.”

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The Hon’ble Supreme Court in D. N. Jeevaraj Vs.

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Chief Secretary, Government of Karnataka & Ors, (2016) 2

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SCC 653 , paragraphs 34 to 38 observed as under:-

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“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.

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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)

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“ 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.”

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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

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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.

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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)

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“ 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.

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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.”

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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)

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“ 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

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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:

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‘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.’

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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.”

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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 i.e. Executive Engineer, Minor Water Resources Department, Gaya, 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

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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.

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Statement accepted and taken on record.

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As such, petition stands disposed of in the following terms:-

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(a) Petitioner shall approach the authority concerned i.e. Executive Engineer, Minor Water Resources Department, Gaya within a period of four weeks from today by filing a representation for redressal of the grievance(s);

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(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;

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(c) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;

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(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;

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(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;

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(f) Liberty reserved to the petitioner to approach the Court, if the need so arises subsequently on the same and subsequent cause of action;

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(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.

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(h) We have not expressed any opinion on merits. All issues are left open;

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(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;

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The petition stands disposed of in the aforesaid

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terms.

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Interlocutory Application(s), if any, stands disposed of.

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(Sanjay Karol, CJ)

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( S. Kumar, J)