Patna High Court
Sapna Kumari vs The State Of Bihar Through The … on 25 October, 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18004 of 2021
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Sapna Kumari, Wife of Paras Mani Resident of Village – Rasiyari, P.S. –
Ghanshyampur, District- Darbhanga.
… … Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary Government of Bihar, Patna.
2. The principal Secretary Water Resource Department, Government of Bihar,
Patna.
3. The Principal Secretary, Rural Works Department, Government of Bihar,
Patna.
4. The Principal Secretary, Road Construction Department, Government of
Bihar, Patna.
5. The District Magistrate, Darbhanga.
6. The Executive Engineer, Rural Works Department Works Division, Benipur,
Darbhanga.
7. The Executive Engineer, Water Resource Division, Darbhanga.
8. The Assistant Engineer Rural Works Department, Benipur, Darbhanga.
9. The Junior Engineer, Rural Works Department, Benipur, Darbhanga.
10. Amar Nath Jha Son of Bhagwat Jha Resident of Village – Nawada, P.S. –
Bahera, District- Darbhanga.
… … Respondent/s
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Appearance :
For the Petitioner/s : Mr.Md. Shakir Ahmad, Advocate
Mr. Gajendra Kumar, Advocate
Mr. Rajesh Kumar, Advocate
For the Respondent/s : Mr. Amit Prakash, GA 13
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE A. M. BADAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 25-10-2021
This petition was filed on 08.10.2021 which was
registered and listed immediately, and is taken up today for
hearing.
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Heard learned counsel for the parties.
Petitioner has prayed for the following relief(s):-
(i) For issuance of appropriate writ/writs,
order/orders, direction/directions commanding and
directing the respondent authorities especially
respondent no. 3, 5, 6 to prepare a draft plan for
construction of road from Rasiyari to Shankerpur to
Neema by taking into consideration the different
flow of river Gehuan as respondent authorities are
constructing Rasiyari-Shankarpur Neema road in a
hap hazard manner by blocking the main flow and
constructing bridge of 60 meter on the East of
Rasiyari village and West of Shankerpur village and
filled up the middle part of the river which resulted
into diversion of Gehuan river flow towards the side
of Rasiyari village causing threat of flood to approx.
20,000 resident of Rasiyari Village.
(ii) For issuance of appropriate writ/writs,
order/orders, direction/directions to the respondent
authorities of water Resource Department i.e.
respondent no. 2 and 7 to take step to strengthen the
embankment of Gehuan river from the side of
Rasiyari village and further for the security and
safety of village Rasiyari from the erosion of the
banks due to the diversion of river flow towards the
bank of Rasiyari village and due to such diversion
approx. 500 houses of Rasiyari village directly came
under the river bed of river Gehuan and if timely
measure and steps are not taken on time then
certainly those houses could flow and could get
damaged.
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(iii) For issuance of appropriate writ/writs,
order/orders, direction/directions commanding the
respondent authorities to construct a additional
bridge of 60 meters in the middle of the river
Gehuan in between Rasiyari and Shankerpur and
allow the river to flow in natural way as filled up
road constructed at the middle of the river Gehuan in
the year 2019 has already broken and approx. 60
meters silt filled up pitched road has already flown
away in the flood of 2020 however instead of
constructing a bridge in the middle of river,
respondent authorities again started maintenance
work on the broken part in the early part of the year
2021 but again said part flew away in the flood of
year 2021.
(iv) For issuance of appropriate writ/writs,
order/orders, direction/directions commanding the
respondent authorities to till up the Bridge from side
of Rashiyari Village upto 30 meter and further
construct the 40 meter bridge from east of the
existing bridge so that 500 houses directly come
under river flow may be save.
(v) For issuance of any other relief/reliefs for
which the resident of village Rasiyari and other
adjoining area of river Gehuan who are going to be
affected due to defecting construction of Rasiyari
Shankarpur Neema Road.”
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:-
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“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
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)
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“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 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
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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.”
After the matter was heard for some time, learned
counsel for the petitioner, under instructions, states that
petitioner shall be content if a direction is issued to the
Respondent No. 4 namely the Principal Secretary, Road
Construction Department, Government of Bihar, Patna to
consider and decide the representation which the petitioner
shall be filing within a period of four weeks from today for
redressal of the grievance(s).
Learned counsel for the respondents states that if such
a representation is filed by the petitioner, the Respondent No. 4
namely the Principal Secretary, Road Construction
Department, Government of Bihar, Patna shall consider and
dispose it of expeditiously and preferably within a period of
four months from the date of its filing along with a copy of this
order.
Statement accepted and taken on record.
As such, petition stands disposed of in the following
terms:-
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(a) Petitioner shall approach the authority concerned
within a period of four weeks from today by filing a
representation for redressal of the grievance(s);
(b) The authority concerned shall consider and dispose
it of expeditiously by a reasoned and speaking order preferably
within a period of four months from the date of its filing along
with a copy of this order;
(c) Needless to add, while considering such
representation, principles of natural justice shall be followed
and due opportunity of hearing afforded to the parties;
(d) Equally, liberty is reserved to the petitioner to take
recourse to such alternative remedies as are otherwise available
in accordance with law;
(e) 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;
(f) Liberty reserved to the petitioner to approach the
Court, if the need so rises subsequently on the same and
subsequent cause of action;
(g) We have not expressed any opinion on merits. All
issues are left open;
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(h) 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.
(Sanjay Karol, CJ)
( A. M. Badar, J)
Sujit/Ashwini
AFR/NAFR
CAV DATE
Uploading Date 26.10.2021
Transmission Date
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