Patna High CourtRam Bihari Upadhyay vs The State Of Bihar on 9 September, 2022Bench:Chief Justice,S. KumarIN THE HIGH COURT OF JUDICATURE AT PATNA\n                   Civil Writ Jurisdiction Case No.13118 of 2022\n     ======================================================\n     Ram Bihari Upadhyay Son of Late Tribhuwan Upadhyay, Resident of Village-\n     Chakrahasi, Police Station- Buxar Muffasil in the District of Buxar.\n\n                                                               ... ... Petitioner/s\n                                       Versus\n1.   The State of Bihar through the Principal Secretary, Department of Revenue\n     and Land Reforms, Government of Bihar, Patna.\n2.   The Principal Secretary, Department of Revenue and Land Reforms,\n     Government of Bihar, Patna.\n3.   The District Magistrate-cum-Collector, Buxar.\n4.   The Circle Officer, Buxar in the District of Buxar.\n5.   Rama Shankar Yadav, Son of Late Ayodhya Prasad @ Faujdar Yadav,\n     Resident of Village- Chakrahasi, Police Station- Buxar Muffasil in the\n     District of Buxar.\n\n                                               ... ... Respondent/s\n     ======================================================\n     Appearance :\n     For the Petitioner/s    :      Mr. Sunil Kumar, Advocate\n                                    Mr. Aditya Kumar Pandey, Advocate\n     For the Respondent/s    :      Mr. Sajid Salim Khan, SC-25\n     ======================================================\n     CORAM: HONOURABLE THE CHIEF JUSTICE\n               and\n               HONOURABLE MR. JUSTICE S. KUMAR\n     ORAL JUDGMENT(Per: HONOURABLE THE CHIEF JUSTICE)\n     =======================================================\n     (The proceedings of the Court are being conducted by Hon'ble the Chief\n     Justice/ Hon'ble Judges through Video Conferencing from their\n     residential offices/residences. Also, the Advocates and the Staffs joined\n     the    proceedings      through    Video    Conferencing    from     their\n     residences/offices.)\n     =======================================================\n\n      Date : 09-09-2022\n\n\n                     Heard learned counsel for the parties.Petitioner has prayed for the following relief(s):-Patna High Court CWJC No.13118 of 2022 dt.09-09-20222/7Learned counsel for the State opposes the petition\n\n         stating that the petition is misconceived; raises disputed\n\n         question of fact; is not in public interest; and that the issue can\n\n         be best resolved at the local level by the appropriate authorities.We find that petitioner has an alternative remedy,\n\n         equally efficacious in term of and under the provisions of the\n\n         Bihar Public Land Encroachment Act, 1956.Confronted as to why the petitioner has not taken\n Patna High Court CWJC No.13118 of 2022 dt.09-09-20223/7recourse to such remedies, we see no answer forthcoming.We see that the present petition is in the nature of\n\n         private interest litigation and not public interest litigation,\n\n         inasmuch as dispute between the private parties stands\n\n         highlighted. As such, we refrain from issuing any notice.The Hon'ble Supreme Court inD. N. Jeevaraj Vs.\n\n          Chief Secretary, Government of Karnataka & Ors, (2016) 2\n\n          SCC 653, paragraphs 34 to 38 observed as under:-"34. The learned counsel for the parties\n                       addressed us on the question of the bona fides of\n                       Nagalaxmi Bai in filing a public interest litigation. We\n                       leave this question open and do not express any\n                       opinion on the correctness or otherwise of the decision\n                       of the High Court in this regard.35. However, we note that generally speaking,\n                       procedural technicalities ought to take a back seat in\n                       public interest litigation. This Court held in Rural\n                       Litigation and Entitlement Kendra v. State of U.P.\n                       [Rural Litigation andEntitlement Kendra v. State of\n                       U.P., 1989 Supp (1) SCC 504] to this effect as follows:\n                       (SCC p. 515, para 16)\n                                 "16. The writ petitions before us are not inter\n                            parties disputes and have been raised by way of\n                            public interest litigation and the controversy\n                            before the court is as to whether for social safety\n                            and for creating a hazardless environment for the\n                            people to live in, mining in the area should be\n                            permitted or stopped. We may not be taken to\n                            have said that for public interest litigations,\n                            procedural laws do not apply. At the same time it\n                            has to be remembered that every technicality in\n                            the procedural law is not available as a defence\n                            when a matter of grave public importance is for\n                            consideration before the court."36. A considerable amount has been said about\n                       public interest litigation inR&M Trust [R&M Trust v.\n                       Koramangala Residents Vigilance Group, (2005) 3\n                       SCC 91] and it is not necessary for us to dwell any\n                       further on this except to say that in issues pertaining to\n Patna High Court CWJC No.13118 of 2022 dt.09-09-20224/7good governance, the courts ought to be somewhat\n                       more liberal in entertaining public interest litigation.\n                       However, in matters that may not be of moment or a\n                       litigation essentially directed against one organisation\n                       or individual (such as the present litigation which was\n                       directed only against Sadananda Gowda and later\n                       Jeevaraj was impleaded) ought not to be entertained or\n                       should be rarely entertained. Other remedies are also\n                       available to public spirited litigants and they should be\n                       encouraged to avail of such remedies.37.In such cases, that might not strictly fall in\n                       the category of public interest litigation and for which\n                       other remedies are available, insofar as the issuance of\n                       a writ of mandamus is concerned, this Court held inUnion of India v. S.B. Vohra [Union of Indiav. S.B.\n                       Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that:(SCC p. 160, paras 12-13)\n                                    "12. Mandamus literally means a\n                             command. The essence of mandamus in England\n                             was that it was a royal command issued by the\n                             King's Bench (now Queen's Bench) directing\n                             performance of a public legal duty.13. A writ of mandamus is issued in favour\n                             of a person who establishes a legal right in\n                             himself. A writ of mandamus is issued against a\n                             person who has a legal duty to perform but has\n                             failed and/or neglected to do so. Such a legal\n                             duty emanates from either in discharge of a\n                             public duty or by operation of law. The writ of\n                             mandamus is of a most extensive remedial\n                             nature. The object of mandamus is to prevent\n                             disorder from a failure of justice and is required\n                             to be granted in all cases where law has\n                             established no specific remedy and whether\n                             justice despite demanded has not been granted."38. A salutary principle or a well-recognised\n                         rule that needs to be kept in mind before issuing a\n                         writ of mandamus was stated in Saraswati Industrial\n                         Syndicate Ltd. v. Union of India [Saraswati\n                         Industrial Syndicate Ltd. v. Union of India, (1974) 2\n                         SCC 630] in the following words: (SCC pp. 641-42,\n                         paras 24-25)\n                                        "24. ... The powers of the High Court\n                                underArticle 226are not strictly confined to\n                                the limits to which proceedings for prerogative\n                                writs are subject in English practice.\n                                Nevertheless, the well-recognised rule that no\n                                writ or order in the nature of a mandamus\n Patna High Court CWJC No.13118 of 2022 dt.09-09-20225/7would issue when there is no failure to\n                                perform a mandatory duty applies in this\n                                country as well. Even in cases of alleged\n                                breaches of mandatory duties, the salutary\n                                general rule, which is subject to certain\n                                exceptions, applied by us, as it is in England,\n                                when a writ of mandamus is asked for, could\n                                be stated as we find it set out in Halsbury's\n                                Laws of England (3rd Edn.), Vol. 11, p. 106:'198. Demand for performance must\n                                  precede application.--As a general rule the\n                                  order will not be granted unless the party\n                                  complained of has known what it was he\n                                  was required to do, so that he had the means\n                                  of considering whether or not he should\n                                  comply, and it must be shown by evidence\n                                  that there was a distinct demand of that\n                                  which the party seeking the mandamus\n                                  desires to enforce, and that that demand was\n                                  met by a refusal.'25. In the cases before us there was no\n                               such demand or refusal. Thus, no ground\n                               whatsoever is shown here for the issue of any\n                               writ, order, or direction underArticle 226of the\n                               Constitution."As such, petition stands disposed of in the\n\n         following terms:-(a). Liberty reserved to the petitioner to take\n\n         recourse to such remedies as are otherwise available in\n\n         accordance with law;(b) We are hopeful that as and when petitioner\n\n         takes recourse to such remedies, as are otherwise available\n\n         in law, before the appropriate forum, the same shall be dealt\n\n         with, in accordance with law and with reasonable dispatch;Patna High Court CWJC No.13118 of 2022 dt.09-09-20226/7(c) The authority concerned shall consider and\n\n         dispose of the matter expeditiously by a reasoned and\n\n         speaking order preferably within a period of four months\n\n         from the date of approaching the petitioner before the\n\n         appropriate authority;(d) Needless to add, while considering and\n\n         deciding the matter, principles of natural justice shall be\n\n         followed and due opportunity of hearing afforded to the\n\n         parties;(e) Liberty reserved to the petitioner to\n\n         approach the appropriate forum/Court, should the need so\n\n         arise subsequently on the same and subsequent cause of\n\n         action;(f) We have not expressed any opinion on\n\n         merits. All issues are left open;(j) The proceedings shall be conducted through\n\n         digital mode, unless the parties otherwise mutually agree to\n\n         meet in person i.e. physical mode.The petition stands disposed of in the aforesaid\n\n         terms.Patna High Court CWJC No.13118 of 2022 dt.09-09-20227/7Interlocutory Application(s), if any, shall stand\n\n                      disposed of.(Sanjay Karol, CJ)\n\n\n                                                              (S. Kumar, J)\nAmrendra/PKP\nAFR/NAFR\nCAV DATE\nUploading Date          12.09.2022\nTransmission Date