Arbind Kumar v. The State Of Bihar,

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4340 of 2022 ====================================================== Arbind Kumar R/o - Ray Bahadur Singh R/o - Village - Banni (Chandi Tola), Via - Mansi, P.S. - Maheshkhunt, District- Khagaria. ... ... Petitioner/s

Versus

1.

The State of Bihar, through the Principle Secretary, Department of Revenue, Bihar at Patna.

2.

The Principle Secretary, Department of Revenue, Bihar at Patna. 3.

The Commissioner, Munger Range at Munger.

4.

The District Magistrate, Khagaria.

5.

The District Education Officer, Khagaria.

6.

The District Panchayati Raj Officer, Khagaria at Khagaria. 7.

The Sub - Divisional Officer, Gogri, District- Khagaria. 8.

The Circle Officer, Gogri, Block, District- Khagaria. 9.

Dilip Singh S/o - Late Ramdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

10.

Bipin Singh S/o - Late Ramdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

11.

Manjit Singh S/o - Late Ramdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

12.

Sanjit Singh S/o - Late Ramdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

13.

Sanjay Singh S/o - Triveni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

14.

Bhushan Singh S/o - Triveni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

15.

Manik Kumar S/o - Triveni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

16.

Binay Kumar S/oTriveni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

17.

Lal Chandra Kumar S/o - Triveni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

18.

Bade Lal Singh S/o - Sri Jay Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

19.

Akhilesh Singh S/o - Sri Jay Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

20.

Pramod Singh S/o Maheshwari Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

2/8 21.

Mantu Kumar S/o - Maheshwari Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

22.

Khintu Kumar S/o - Maheshwari Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

23.

Aditya Kumar S/o Late Vijay Kumar Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

24.

Manoj Singh S/o Yogendra Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

25.

Sanjay Singh S/o Yogendra Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

26.

Naresh Singh S/o Nathuni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

27.

Janardan Singh S/o Nathuni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

28.

Suresh Singh S/o Nathuni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

29.

Ganesh Singh S/o Nathuni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

30.

Sudhir Singh S/o Nathuni Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

31.

Gulab Sah S/o Late Baldeo Sah Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

32.

Ravi Shankar Prasad S/o Late Radhe Shyam Krishna Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria. 33.

Vijay Shankar Prasad S/o Late Radhe Shyam Krishna Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria. 34.

Krishna Nandan Singh S/o Late Basudeo Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria. 35.

Ranvir Kumar S/o Late Basudeo Prasad Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

36.

Dev Narayan Singh S/o Matru Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

37.

Kundan Singh S/o Khublal Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

38.

Arvind Singh S/o Brahmdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

39.

Sanjiv Singh S/o Brahmdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

40.

Ramashish Singh S/o Brahmdeo Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

41.

Ranjan Thakur S/o late Shivnandan Thakur Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

42.

Vinod Thakur S/o Late Sakaldeo Thakur Resident of Village - Banni, P.s. -

3/8 Maheshkhunt, District- Khagaria.

43.

Raj Kumar Thakur S/o late Shivnandan Thakur Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

44.

Dilip Singh S/o Late Sadho Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

45.

Mohan Singh S/o Late Sadho Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

46.

Shivsen Kumar S/o Late Sadho Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

47.

Nandan Kumar S/o Gorelal Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

48.

Indal Kumar S/o Gorelal Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

49.

Sajan Kumar S/o Prakash Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

50.

Dhiraj Kumar S/o Prakash Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

51.

Ranjit Kumar S/o Late Sarjug Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

52.

Jawahar Singh S/o Late Garib Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

53.

Vijay Singh S/o late Garib Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

54.

Sudhir Kumar S/o Rajindar Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

55.

Sumit Kumar S/o Rajindar Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

56.

Kamleshwari Singh S/o Late Ramdayal Singh Resident of Village - Banni, P.s. - Maheshkhunt, District- Khagaria.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Apurva Kumar, Advocate For the Respondent/s :

Mr.Raj Kishore Roy, GP-18 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) (The proceedings of the Court are being conducted by Hon'ble the Chief Justice/Hon'ble Judges through Video Conferencing from their

4/8 residential offices/residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences/offices.) 08-04-2022 Petitioner has prayed for the following relief(s): "i. Commanding the respondent authorities particularly the Respondent No. 8 to remove the encroachment existing upon the public land pertaining to Pargana-Farkiya, Mauza-Banni, Thana No.-287, Tauzi No.-526, Khata No.-535, Khesra No.-790 to the extent of Area of 92.9 decimal within Anchal Gogri of District - Khagaria.

ii. Further, commanding the respondent authorities particularly the Respondent No. 8 to act and follow with the Provisions of Bihar Public Land Encroachment Act, 1956.

iii.

Grant of any other incidental/consequential relief/reliefs, for which the petitioner can be found entitled for."

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.

5/8 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.

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 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."

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

6/8 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 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

7/8 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."

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

8/8 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 PandemicCovid-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, shall stand disposed of.

(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/DKS U