Brajesh Mishra vs The State Of Bihar Through The ...
2021 Latest Caselaw 4727 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.16635 of 2021
     ======================================================

Brajesh Mishra, S/o - Sri Gopal Mishra, R/o Road No. - 14/B, East Ashok Nagar, Kankarbag, P.S. - Kankarbag, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Chief Secretary, Government of Bihar, Patna.

3. The Additional Chief Secretary, Department of Health, Govt. of Bihar, Patna.

4. Bihar Medical Service @ Infrastructure Corporation Limited through its Managing Director, 4th Floor, BSBCCL Building, Hospital Road, Shastri Nagar, Patna.

5. The Managing Director, Bihar Medical Services and Infrastructure Corporation Limited 4th Floor, BSBCCL Building, Hospital Road, Shastri Nagar, Patna.

6. The Chief Manager (Project), Bihar Medical Services and Infrastructure Corporation Limited 4th Floor, BSBCCL Building, Hospital Road, Shastri Nagar, Patna.

7. The Central Bureau of Investigation through its Director, 6th Floor, Plot No. 5B, Lodhi Road, C.G.O. Complex, New Delhi - 110003.

8. The Director Central Bureau of Investigation, 6th Floor, Plot No. -SB, Lodhi Road, C.G.O. Complex, New Delhi - 110003.

9. The Superintendent of Police, Anti Corruption Bureau, Central Bureau of Investigation, Bailey Road, Patna.

10. Mr. Kaushal Kishore S/o Not Known, the then Managing Director, Bihar Medical Services and Infrastructure Corporation Limited 4th Floor, BSBCCL, Building, Hospital Road, Shastri Nagar, Patna. At present posted as Additional Secretary - cum- C.E.O., Bihar Swasthya Suraksha Samiti, Health Department, Government of Bihar, Patna.

11. Mr. Vinod Kumar S/o Not Known, the then Chief Manager (Project), Bihar Medical Services and Infrastructure Corporation Limited, 4th Floor, BSBCCL Building, Hospital Road, Shastri Nagar, Patna.

12. Larsen and Toubro Limited, having its registered office at Mount Poonamallee Road, Manapakkam, PB. No. 979, Chennai - 600089, Tamil Nadu through its Group Chairman.

13. The Group Chairman, Larsen and Toubro Limited, having its registered office at Mount Poonamallee Road, Manapakkam, P.B. No. 979, Chennai - 600089, Tamil Nadu.

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

For the Petitioner/s : Mr.Rajeev Kumar Singh For the Respondent/s : Mr.Ajay Behari Sinha (Ga8) Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 20-09-2021

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

" i. To direct the Central Bureau of Investigation to conduct an inquiry in relation to the financial irregularity which has taken place in finalization of the tender bearing NIT No-BMSICL/infra/32/2019 dated 20.09.2019 issued by the Chief Manager (Project), Bihar Medical Services & Infrastructure Corporation Ltd. Patna which was issued with respect to Redevelopment of Patna Medical College & Hospital at Patna for 215 Admission Medical College and 5462 bedded Hospital alongwith the building etc and accordingly institute an appropriate legally proceeding either Civil or Criminal against those who are indulge/responsible in defalcation of about Rs. 300 crores and take appropriate action against them. ii. To direct the respondents to stop the work of redevelopment of Patna Medical College & Hospital in pursuance to notice inviting International Competitive Bidding dated 20.09.2019 till the submissions of final report by the Central Bureau of Investigation before this Hon'ble Court. Iii. The petitioner humbly prays to this Hon'ble Court to monitor the inquiry/investigation of Central Bureau of Investigation in the present scam which is more than about Rs. 300 Crores.

And for any other relief(s) for which the petitioners may be found entitled in the facts and circumstances of the case."

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 Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

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) "12. Mandamus literally means a command. The essence of mandamus in England Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

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 which the party seeking the mandamus desires to enforce, and that that demand was Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

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 (Respondent No. 3 Additional Chief

Secretary, Department of Health, Govt. of Bihar, Patna) or

any of the statutory authority 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 the authority Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

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 three 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 arises subsequently on the same

and subsequent cause of action;

Patna High Court CWJC No.16635 of 2021 dt.20-09-2021

(g) Liberty also reserved to the petitioner to make

a mention for listing of the petition on priority basis. As

and when any such mention is made, Registry shall take

steps for listing the petition at the earliest.

(h) We have not expressed any opinion on merits.

All issues are left open;

(i) 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)

( S. Kumar, J) Rajiv/veena-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date
Transmission Date       NA