Binod Kumar Singh vs State Of Bihar And Ors

Petitioner has prayed for the following reliefs:-

“For issuance of an appropriate writ in the nature of mandamus, commanding the respondents to not construct Pucca construction and to not install

gate over main Pain appertaining to Plot No. 3354, situated at Village-Solhanda, P.S.- Makhdumpur, District-Jehanabad due to which the farmers of

Village- Solhanda, Misrauli, Boknari Khurd, Mogal Bigha, Bhane Bigha, Pakar Bigha and others Villages will be deprived of from irrigating thousands

acres of their fertile land and due to arbitrary action of respondents their land will become desert land.â€​

Learned counsel for the State opposes the petition stating that the petition is misconceived; raises disputed question of fact; is not in public interest;

and that the issue can be best resolved at the Government level by the appropriate authorities.

In D. N. JEEVARAJ V. State of Karnataka (2016) 2 SCC 65, 3Madan B. Lokur J. has culled out the following process for adjudication of public

interest litigation, more so in a writ of mandamus as is sought to be enforced, at para Nos.34 to 38 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 Hig2019h Court in this regard.

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)

“16. The writ petitions before us are not inter partes 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.â€​

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] 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.

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)

“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.

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.â€​

A salutary principle or a well-recognised rule that needs to be kept in mind before iss2019uing 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)

“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 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:

‘198. Demand for performance must precede application.â€"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.’

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.â€​

After the matter was heard for some time, learned counsel for the petitioner submits that petitioner shall be content if a direction is issued to the

respondent No. 4 to consider and decide the representation (Annexure-1) for redressal of the grievance(s).

Learned counsel for the respondents states that the authority concerned shall consider and dispose it of expeditiously and preferably within a period of

two months from the date of its filing of representation along with a copy of this order.

Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law.

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.

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

parties.

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

We have not expressed any opinion on merits.

All issues are left open.

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, also stands disposed of.