Writ of mandamus is granted to Parties who establishes a legal right: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.214321 Uaday Kumar S o Late Vindeshwari Prasad R v Lagma P.S. Sarayranjan District Samastipur At Present Bhuidhara Dih P.S. Muffasil District ... Petitioner s The State of Bihar The District Magistrate Samastipur The Circle Officer Sarayranjan District Samastipur Isari Ray S o Late Achhelal Ray Ram Bahadur Ray S o Late Jagdish Ray 6. Amaresh Ray S o Late Jagdish Ray 7. Mahesh Ray S o Late Jagdish Ray 8. Domi Ray S o Jamun Ray Teni Ray S o Jamun Ray 10. Madan Ray S o Late Indra Ray 11. Ramadhar Ray S o Late Indra Ray 12. Manit Ray S o Late Indra Ray Respondent no. 4 to 12 are R v Lagama P.S. Sarayranjan District ... Respondent s Mr.Ajay Kumar Advocate Mr.Md. Khurshid AlamDate : 11 01 2022 Heard learned counsel for the parties Petitioner has prayed for the following relief(s): “ i. That by way of writ application petitioner seeks indulgence of this Hon’ble Court for issuance of an appropriate writ order direction in nature of Mandamus commanding upon the respondents to Patna High Court CWJC No.214321 dt.11 01 2022 remove the Encroachment over the public Land in question which has been hut etc in accordance with law in situated at Mauza Lagma than no. 334 P.S Sarayranjan District Samastipur in Khata No 164 Khesara No. 463 ii. For granting the other relief or reliefs in accordance with law. ” 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. 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 Patna High Court CWJC No.214321 dt.11 01 2022 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 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 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 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 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 Patna High Court CWJC No.214321 dt.11 01 2022 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 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 Patna High Court CWJC No.214321 dt.11 01 2022 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. Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Summary: A writ of mandamus is issued against someone who has failed or omitted to fulfil a legal obligation and a legal duty arises either as a result of a public duty or as a result of the operation of law 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 Uaday Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No.21438 of 2021) Brief facts of the case are that petitioner has requested for the Hon’ble Court’s indulgence in issuing an appropriate writ/order/direction in the nature of Mandamus commanding the respondents to remove the encroachment over the public land in question, which has been hut etc in accordance with law in Mauza- Lagma, than P.S. Sarayranjan, District- Samastipur, in Khata. 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 commented that a writ of mandamus is granted to Parties who establishes a legal right in themselves. A writ of mandamus is issued against someone who has failed or omitted to fulfil a legal obligation. A legal duty arises either as a result of a public duty or as a result of the operation of law. The writ of mandamus has a wide-ranging remedial scope. The purpose of mandamus is to prevent disturbance caused by a failure of justice, and it must be provided in all circumstances where the law has not created a specific remedy and justice has not been granted notwithstanding the demand. Learned counsel for the petitioner states that if a direction is issued to the authority concerned, the Circle Officer, Sarayranjan, District- Samastipur) to consider and decide the representation that the petitioner will be filing within a period of four weeks from today for redressal of the grievance(s), the petitioner will be satisfied, whereas 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 in a timely manner along with a copy of order. Petitioner shall approach the authority concerned within four weeks, and while considering such representation, natural justice principles shall be followed and due opportunity of hearing afforded to the parties, and when petitioner seeks 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. When a notice is made, Registry will take steps to list the petition as soon as possible. The court has not took the decision on the merits. All concerns are left unresolved, and the petitioner has the option of mentioning the petition for priority listing. Click here to read the judgment