Patna High Court

Ram Punit Choudhary vs The Union Of India on 26 October, 2021

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.12430 of 2021
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1. Ram Punit Choudhary S/o Late Asharfi Choudhary, R/o Chand Chaur Mathurapur, P.S. Ujiarpur, District - Samastipur, Bihar, Presently Residing at LIG - 281, Housing Colony, Dhanbad, Jharkhand.

2. Ram Dayal Singh, S/o Late Ram Shlok Singh, R/o House No. - 2, Vaishnav Vihar, Ashiana Nagar, Patna - 25.

... ... Petitioner/s Versus

1. The Union of India through the Secretary Rail, Ministry of Railways, Rail Bhawan, New Delhi.

2. The Chairman Railway Board, Ministry of Railways Rail Bhawan, New Delhi.

3. The General Manager, Eastern- Central Railway, Rail Niketan, Dighikala, Hajipur, Vaishali - 844101.

4. The Divisional Railway Manager Eastern-Central Railway, Samastipur, DRM Office, Samastipur, Bihar.

5. The Senior Divisional Railway Engineer, Office of Divisional Railway Engineer, DRM Office, Samastipur, Bihar.

6. The State of Bihar through the Additional Chief Secretary, Road Construction Department, Govt of Bihar, Vishwasaraiya Bhawan, Jawahar Lal Nehru Marg, Patna - 800001.

7. The Additional Chief Secretary, Road Construction Department, Govt. of Bihar, Vishwasaraiya Bhawan, Jawahar Lal Nehru Marg, Patna - 800001.

8. The Managing Director, Bihar State Bridge Construction Corporation, Bihar, Patna.

9. The Chief Engineer (Traffic) North Bihar Sub-Zone, Road Construction Department Govt. of Bihar, Patna.

10. The Executive Engineer, Road Construction Department Govt. of Bihar, Road Division, Samastipur, Bihar.

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

For the Petitioner/s : Mr. Surendra Kumar Singh, Advocate Mrs. Smriti Prasad, Advocate Mrs. Sudha Chandra, Advocate For the Respondent/s : Dr. K.N. Singh, ASG Mr. Uday Shankar Sharan Singh, G.P.-9 Mr. Anshuman Singh, CGC Mr. Ramadhar Shekhar, Advocate Mr. Anil Singh, Advocate

====================================================== Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 26-10-2021 Heard learned counsel for the parties.

Petitioners have prayed for the following relief(s):

"(i). To issue an appropriate writ, order or direction to the Respondents to assess the rotten present condition and undertake the Major Repair/ Reconstruction/ Maintenance of the Samastipur-Dharbhanga Rail over Bridge of Eastern-Central Railway, situated on the main Road of the Samastipur City besides Samastipur Civil Court, as the over bridge has suffered Major Breakdown and is not at all fit to be used as it can collapse any time and lead to a Major Tragedy and loss of human life, evident from the photographic records of the over bridge (Annexure -1 ).

(ii) To issue further appropriate writ, order or direction commanding the Respondents to assess and undertake appropriate required action of Construction and Repair work of Samastipur-Dharbhanga Rail over Bridge of Eastern-Central Railway and complete the same as immediately as possible or in a appropriate time frame as this Hon'ble Court may deem fit and proper allowing the Respondents to complete the same.

(iii) To issue further appropriate writ, order or direction commanding the Respondents Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

to submit a proposal and time frame under which the Construction/Repair/Maintenance of the Over Bridge can be undertaken and completed by the Respondents in the interest and safety of the inhabitants/people of the Dharbhanga and Samastipur.

(iv) This Hon'ble Court may adjudicate and hold that it was the statutory duty of the Respondent Authorities to undertake the repair and maintain the over bridge in good condition as neglect in their duty can lead to tragedy of loss of human life causing irreparable loss and injury beyond the limits of the compensation.

(v) This Hon'ble Court may further adjudicate and hold that inaction on the part of the Respondents and undue delay made in undertaking the repair, maintenance and construction of the over bridge is not only an act of negligence but is also an act of mala fide and absolute arbitrary exercise of power/ authority by the Respondents.

(vi) To award cost of litigation and suitable compensation to the petitioners for loss and continuous damages being caused to the people at large as the locality people of the Samastipur- Darbhanga locality.

(vii) To award any other relief or reliefs as this Hon'ble Court may deem fit and proper in the light of the facts of this case.

The Hon'ble Supreme Court in D. N. Jeevaraj Vs. Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

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 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 Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

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 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 Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

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."

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

authority concerned 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 authority

concerned 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:-

(a) Petitioner shall approach respondent no.4, namely

the Divisional Railway Manager Eastern-Central Railway, Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

Samastipur, DRM Office, Samastipur, Bihar within a period of

four weeks from today by filing a representation for redressal

of the grievance(s);

(b) The said respondent 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;

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;

Patna High Court CWJC No.12430 of 2021 dt.26-10-2021

(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;