Ram Dayal Vin vs State Of Bihar

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

“(i) For issuance of appropriate writ/order/direction commanding the State of Bihar and it’s authority particularly respondent no. 13 Circle

Officer (Anchal Adhikari) Bhorey, District- Gopalganj to remove the encroachment from the Public Land bearing Plot No. 316, Khata No. 141 of

Mauza Viswa Khalsa (Thana No. 225) for smooth functioning and running of newly created Primary School under Anchal-Bhorey District- Gopalganj

in terms of the appellate order dated 3.3.2020 (Annexure-3) in Paribad No. 515110102081901873/1A passed by the First Appellate authority under the

Bihar right to Public Grievance Redressal Act, 2015 under the provisions of the Bihar Public Land Encroachment Act, 1956 as well as instruction

mentioned in Letter No. 1323(6) dated 28.10.2019 (Annexure-4) issued under signature of the Additional Chief Secretary, Department of Revenue

and Land Reforms Bihar, Patna as early as possible.

(ii) For issuance of appropriate writ/order/direction commanding the State of Bihar and it’s authorities to take proper action under the Provisions

of the Bihar Right to Publice Grievance Redressal Act, 2015 for non compliance of the Appellate order dated 3.3.2020 (Annexure-3) against the

present Circle Officer (Anchal Adhikari) Bhorey, District-Gopalganj as he has voluntarily failed to take any proper action for compliance of the order

aforesaid.

(iii) For issuance of any other relief/relief’s which is essential in the eye of law in the facts and circumstance of the case.â€​

We find that petitioner has an alternative remedy, equally efficacious in term of and under the provisions of the Bihar Public Land Encroachment Act,

1956.

Confronted as to why the petitioner has not taken recourse to such remedies, we see no answer forthcoming.

We see that the present petition is in the nature of private interest litigation and not public interest litigation, inasmuch as dispute between the private

parties stands highlighted. As such, we refrain from issuing any notice.

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 local level by the appropriate authorities.

The Hon’ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & Ors, (2016) 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.

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 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.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] 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 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 issuing 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€​

As such, petition stands disposed of in the following terms:-

(a) Liberty reserved to the petitioner to take recourse to such remedies as are otherwise available in accordance with law;

(b) 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;

(c) The authority concerned shall consider and dispose of the matter expeditiously by a reasoned and speaking order preferably within a period of four

months from the date of approaching the petitioner before the appropriate authority;

(d) Needless to add, while considering and deciding the matter, principles of natural justice shall be followed and due opportunity of hearing afforded to

the parties;

(e) 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;

(f) We have not expressed any opinion on merits. All issues are left open;

(g) 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.