A legal duty emanates from either in discharge of a public duty or by operation of law: High Court of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.35022 Sima Yadav W o Sri Amarjit Yadav resident of village Rampur Bhaisahi P.S. Kuchaikote District Gopalganj The State of Bihar through the Principal Secretary Water Resource Department Government of Bihar Patna ... Petitioner s The Engineer in Chief Water Resource Department Bihar Patna The Chief Engineer Water Resource Department Siwan The District Magistrate Gopalganj The Executive Engineer Saran Canal Commissionary Gopalganj The Block Development Officer Kuchaikote Gopalganj ... Respondent s Mr. Sanjay Kumar Advocate Mr. Anjani Kumar AAG 4 For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through residential Video Conferencing offices residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences offices.) from Date : 11 03 2022 Heard learned counsel for the parties. Petitioner has prayed for the following relief(s): “1(i) Issuance of a direction order or writ including writ in the nature of MANDAMUS upon the respondent authorities to rennovate the village canal Patna High Court CWJC No.35022 dt.11 03 2022 which was made for the purposes of irrigation ii) Issuance of a direction order or writ upon the Respondents to after rennovation of the canal start the water supply in which water was not supplied from last twenty years iii) Issuance of a direction order or writ upon the Respondents to stop the recovery of irrigation tax from the farmers which recovers without supply of water in canal iv) Any other relief reliefs that the petitioner may be found to be entitled to in the facts and circumstances of the present case.” After the matter was heard for some time finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned i.e. respondent no. 5 Executive Engineer Saran Canal Commissionary Gopalganj 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 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 Patna High Court CWJC No.35022 dt.11 03 2022 with a copy of this order Statement accepted and taken on record 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. SCC 504] to this effect as follows:3 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 they should be litigants and 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. Vohra2 SCC 150: 2004 SCC363] that:directing performance of a public legal Patna High Court CWJC No.35022 dt.11 03 2022 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 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 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 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 Patna High Court CWJC No.35022 dt.11 03 2022 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 As such petition stands disposed of on 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 four months from the date of its filing along with a copy of this order c) The order assigning reasons shall be communicated Patna High Court CWJC No.35022 dt.11 03 2022 to the petitioner d) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties e) Also opportunity to place on record all relevant materials documents shall be granted to the parties f) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law g) 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 h) Liberty reserved to the petitioner to approach the appropriate forum Court should the need so arise subsequently on the same and subsequent cause of action i) We have not expressed any opinion on merits. All issues are left open j) 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.35022 dt.11 03 2022 The petition stands disposed of in the aforesaid terms Interlocutory Application(s) if any stands disposed of (S. Kumar J

Summary: 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 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 and the same was upheld by High Court of Patna through the learned bench led by JUSTICE S. KUMAR in the case of Sima Yadav vs. The State of Bihar [Case No.3506 of 2022] on 11.03.2022. The facts of the case are that the Respondents were recovering irrigation tax from the farmers without supply of water in canal. Therefore, petitioner seeks issuance of direction including writ in the nature of MANDAMUS upon the respondent authorities to rennovate the village canal which was made for the purposes of irrigation and after rennovation of the canal to start the water supply in which water was not supplied from last twenty years. The respondent authorities should be stopped for the recovery of irrigation tax from the farmers which they were recovering without supply of water. The petitioner’s counsel stated that petitioner shall be content if a direction is issued to the authority concerned i.e. respondent Executive Engineer, Saran Canal Commissionary, Gopalganj, for redressal of the grievances. The respondent’s counsel stated 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. The Court held that the petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievances and the authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months. The Court observed that “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 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.”