Duty of concerned authorities to inquire and take measurements regarding conditions of roads and sewerage and of construction of Drainage Work: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.199021 Niwaran Sewa Sansthan having its Office at Village Ghana Bigha P.S. Telhara District Nalanda Having its Branch Office at Ghana Colony Sorangpur P.S. Ram Krishna Nagar Dist. Patna through its Secretary namely Neelam Sinha aged about 39 years Gender Female ... Petitioner s The State of Bihar through the Principal Secretary Urban Development and Housing Department Govt. of Bihar Patna The Principal Secretary Urban Development and Housing Department Govt. of Bihar Patna The Special Secretary Urban Development and Housing Department Govt of Bihar Patna The District Magistrate cum President District Urban Development Agency The Patna Municipal Corporation through its Commissioner Maurya Lok The Managing Director District Urban Development Agency Patna The Superintending Engineer Bihar Urban Infrastructure Development Cooperation Ltd. Patna The Executive Engineer District Urban Development Agency Patna The Executive Engineer Kankarbagh Division Patna Nagar Nigam Patna ... Respondent s Mr.Uday Pratap Singh Advocate Mr.Yogendra Pd. SinhaDate : 10 01 2022 Heard learned counsel for the parties Patna High Court CWJC No.199021 dt.10 01 2022 Petitioner has prayed for the following relief(s): The Hon’ble Supreme Court in D. N. Jeevaraj Vs Chief Secretary Government of Karnataka & Ors 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. Patna High Court CWJC No.199021 dt.10 01 2022 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 SuppSCC 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 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 Trust3 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 individualought 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 2 SCC 150: 2004 SCC363] that SCC p. 160 paras 12 13 Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King s Bench directing performance of a public legal duty 13. A writ of mandamus is issued in favour Patna High Court CWJC No.199021 dt.10 01 2022 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 2 SCC 630] in the following words: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 Patna High Court CWJC No.199021 dt.10 01 2022 writ order or direction under Article 226 of the 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.5 the Patna Municipal Corporation through its Commissioner Maurya Lok Patna or any of the statutory authority to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the 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. 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) Patna High Court CWJC No.199021 dt.10 01 2022 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 c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise 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 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 Patna High Court CWJC No.199021 dt.10 01 2022 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 Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Summary: It is the duty of concerned authorities to inquire into the non-completion of construction of Drainage Work between Beur More and Mithpur Bus Stand – Storm Water Drainage work for which the technical and administrative sanction is pending before the Department despite direction of The District Magistrate cum President is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Niwaran Sewa Sansthan Vs. The State of Bihar. (Civil Writ Jurisdiction Case No.19909 of 2021) Brief facts of the case are that petitioner requested that the pathetic conditions of roads and sewerage in the western – southern side of Patna Town be taken into consideration. This petition is filed as a writ of Mandamus or any other appropriate Writ, Order/s, Directions, instructing the Respondents to consider the Petitioner’s Representation dated 09.09.2021, filed with the Principal Secretary, Urban Development and Housing Department, Govt. of Bihar, Patna , in which the Petitioner has requested that the pathetic conditions of roads and sewerage in the western – southern side of Patna Town be taken into consideration. Furtherr directing the concerned authorities to inquire into the non-completion of construction of Drainage Work between Beur More and Mithpur Bus Stand – Storm Water Drainage work for which the technical and Administrative sanction is pending before the Department despite direction of The District Magistrate cum President, District Urban Development Agency, Patna dated 15.07.2014 contained in Letter. The Hon’ble Supreme Court observed in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka &amp; Ors, (2016) 2 SCC 653, procedural technicalities ought to take a back seat in public interest litigation as 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. The writ petitions before the court are not inter-party disputes, but rather public interest litigation, and the issue before the court is whether mining in the region should be authorised or prohibited for the sake of social safety and providing a hazard-free environment for the people to live in. When an issue of severe public importance is up for review before the court, every technicality in the procedural law is not accessible as a defence. The court further stated that There has already been a lot about public interest litigation, thus, to add that when it comes to questions of good governance, the courts should be a little more lenient in accepting public interest lawsuits.  However, problems of minor importance or litigation primarily directed at one organisation or individual should not be entertained or should be entertained only in exceptional circumstances. Other options are open to PIL litigants, and they should be encouraged to pursue them. Learned counsel for the petitioner states that the petitioner would be satisfied if a direction is issued to the authority concerned, respondent, the Patna Municipal Corporation through its Commissioner, Maurya Lok, Patna, or any other statutory authority, to consider and decide the representation that the petitioner will be filing within four weeks for redress of the grievance. According to learned counsel for the respondents, if the petitioner files such a representation, the authority concerned must consider and dispose of it promptly, ideally within four months of its filing, along with a copy of this order. The petition has been dismissed. Within four weeks of today, the petitioner must file a representation for redress of the grievance with the relevant authority. The petition has been dismissed off. The petitioner may file a representation for redress of the grievance with the relevant authority within four weeks of today, and when the petitioner seeks such remedies as are otherwise available in law before the appropriate forum, the matter will be handled in accordance with the law and with reasonable dispatch. The petitioner also has the option of mentioning the petition in order for it to be listed as a priority. When such a notice is made, Registry will take steps to list the petition as soon as possible.