SUDHIR PRASAD SINGH Vs. STATE OF BIHAR
HIGH COURT OF PATNA
SUDHIR PRASAD SINGH
STATE OF BIHAR
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Sanjay Karol,C.J. -
(1.) Petitioner has prayed for the following reliefs:-
i. To direct the respondents to not construct the Panchayat Bhawan at village- Oraina under Gram Panchayat, Oraina as the Panchayat Bhawan is already existing on NH 31 at Village- Orhanpur having area more than 15 Kathas of land and since beginning all the Panchayat activities was conducted in Panchayat Bhawan sitauted at villageOrhanpur.
ii. Also to prevent the respondents from construction of the Panchayat Bhawan at village-Oraina under Oraina Gram Panchayat which is situated at the distance of 2 K.M. from N.H. 31.
iii. Also to direct the State respondents to no allow the misuse the public money in the garb of construction of New Panchayat Bhawan at village-Oraina whereas the Panchayat Bhawan is existing at VillageOrhanpur under Oraina Gram Panchayat.
iv. Also for any other relief/reliefs for which the petitioner is found to be entitled in the eye of law. "
(2.) 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.
(3.) In D. N. JEEVARAJ V. State of Karnataka , 2016 2 SCC 653, Madan 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.
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 Supp1 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."
36. 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.
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 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.
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 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 wellrecognised 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.-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 Constitution." ;
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