Authority concerned shall initiate encroachment proceedings and decide the encroachment case to its logical conclusion: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22 Shyam Kishor Son of Munsi Singh Resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Nalanda ... Petitioner s The State of Bihar through Principal Secretary Revenue and Land Reforms Bihar Patna The District Magistrate cum Collector Nalanda The Sub Divisional Officer Bihar Sharif District Nalanda The Circle Officer Rahui District Nalanda Santosh Kumar @ Bambam Singh Son of Late Rajendra Singh Resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Bholi Singh Son of Late Rajendra Singh 7. Munna Kumar Son of Late Awadhesh Singh Sachin Kumar Son of Late Awadhesh Singh Chandan Kumar Singh Son of Ram Bahal Singh 10. Ram Ekbal Singh Son of Late Baleshwar Singh Respondent No. 5 to 10 all resident of Village Hawanpura P.O. Bhendari P.S. and Circle Rahui District Nalanda ... Respondent s Mr.Raj Bansh Dubey Advocate Mr.Md. Khurshid AlamDate : 11 01 2022 Patna High Court CWJC No.22 dt.11 01 2022 Heard learned counsel for the parties Petitioner has prayed for the following relief(s): “(i) For issuance of an appropriate direction order orders directions in the nature of mandamus directing the respondent no.4 to initiate the encroachment proceedings against the private respondent no.5 to 10 encroachers and decide the encroachment case to its logical conclusion within short span of time by removing the encroachment made by encroachers private respondent no.5 to 10 over the land bearing Tauzi No. 11631 Khata No. 684 Khesara No. 2578 area 35 decimal Thana No. 20 situated in Hawanpura Block Rahui village District Nalanda ii) For grant of any relief(s) the petitioner would be found entitled to in the facts and circumstances of the case.” 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 Patna High Court CWJC No.22 dt.11 01 2022 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 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 Patna High Court CWJC No.22 dt.11 01 2022 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 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 Patna High Court CWJC No.22 dt.11 01 2022 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 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 Patna High Court CWJC No.22 dt.11 01 2022 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 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 Patna High Court CWJC No.22 dt.11 01 2022 The petition stands disposed of in the aforesaid terms. Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Summary: Authority shall initiate encroachment proceedings against encroachers and decide the encroachment case to its logical conclusion within a short period of time by removing the encroachment made by encroachers over the land 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 Shyam Kishor Vs. The State of Bihar (Civil Writ Jurisdiction Case No.1 of 2022) Brief facts of the case are that the petitioner has asked for the issuance of an appropriate writ/writs, order/orders, direction/directions in the nature of mandamus directing the respondent  to initiate encroachment proceedings against the private other respondent encroachers and to decide the encroachment case to its logical conclusion within a short period of time by removing the encroachment made by encroachers/private respondent  over the land bearing Tauzi No. 11631, Khata No. 684, Khesara No. 2578, area 35 decimal, Thana No. 20 situated in village Hawanpura, Block- Rahui,  Nalanda District. Learned counsel for the petitioner states that the petitioner will be satisfied if a direction is issued to the authority concerned (respondent no.4, The Circle Officer, Rahui, District-Nalanda) to consider and decide the representation that the petitioner will be filing for redress of the grievance within a period of four weeks. According to learned counsel for the respondents, if the petitioner files such a representation, the authority concerned must consider and dispose of it promptly, preferably within three months of its filing, along with a copy of this order. Petitioner shall approach the authority concerned within four weeks by filing a representation for redress of the grievance, and the authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within three months from the date of filing, along with a copy of this order. The petitioner also has the option of addressing the petition in order for it to be listed as a priority. Registry will take steps to list the petition as soon as possible if such a mention is made, and the court has not stated any opinion on the merits. All issues are unresolved. Click here to read the judgment