Patna High Court

Satyendra Kumar Construction ... vs The State Of Bihar on 5 May, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.4318 of 2022
     ======================================================

Satyendra Kumar Construction Pvt. Ltd. having its registered office at 202, Hira Enclave, New Dak Bunglow Road, P.S. Kotwali, District Patna through its Director Satyendra Kumar, aged about 60 Years, Male, Son of Sri Bhagwan Das, resident of 202, Hira Enclave, New Dak Bunglow Road, P.S. Kotwali, District - Patna.

... ... Petitioner/s Versus

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

2. The Principal Secretary, Rural Works Department, Government of Bihar, Patna.

3. The Engineer in Chief, Rural Works Department, Government of Bihar, Patna.

4. The Chief Engineer-II, Rural Works Department, Government of Bihar, Patna.

5. The Executive Engineer, Rural Works Department, Works Division, Vaisi, Purnia, Bihar.

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

For the Petitioner/s : Mr.Prabhat Ranjan, Advocate For the Respondent/s : Mr.Kumar Alok (SC7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 05-05-2022 Heard learned counsel for the parties.

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

"That this is an application on behalf of the petitioner above named seeking issuance of appropriate writ, rule or direction for;

(i) Quashing the decision of the Technical Bid Evaluation Committee, Rural Works Department, dated 03.03.2022 contained in Memo Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

No.BRRDA (HQ) MNGSY-26/22 (304) as contained in Annexure4 whereby the petitioner's Technical Bid has been rejected on a nonest ground th at the firm is debarred;

(ii) Direction upon the Respondents to open the financial bid of the petitioner and further Award the contract if the petitioner is otherwise eligible;

(iii) A consequential declaration that the Office order No.06 dated 07.01.2022 by which the petitioner has been debarred from participating in the future contracts has become inoperative on account of the fact that the work awarded to the petitioner has already been completed; and

(iv) Restraining the Respondents from finalizing the Tender and creating any third party rights pursuant to the Notice Inviting Tender dated 20.10.2021 (Annexure 1) during the pendency of the present writ petition."

After the matter was heard for some time, finding

the Bench not to be agreeable with the submissions made by

learned counsel for the petitioner, 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).

Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

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 three months from the date of its

filing along with a copy of this order.

Statement accepted and taken on record.

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, Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

(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 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) Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

"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."

As such, petition stands disposed of on the

following terms:-

(a) Petitioner shall approach the competent

authority, i.e., the Engineer in Chief, Public Health

Engineering Department, Government of Bihar, Patna,

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 Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

preferably within a period of three months from the date of

its filing along with a copy of this order;

(c) The order assigning reasons shall be

communicated to the petitioner;

(d) Needless to add, while considering such

representation, principles of natural justice shall be followed

and due opportunity of hearing afforded to the parties;

(e) Also, opportunity to place on record all

relevant materials/documents shall be granted to the parties;

(f) Equally, liberty is reserved to the petitioner to

take recourse to such alternative remedies as are otherwise

available in accordance with law;

(g) 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;

(h) 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;

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

All issues are left open;

(j) The proceedings, during the time of current Patna High Court CWJC No.4318 of 2022 dt.05-05-2022

Pandemic- Covid-19 shall be conducted through digital

mode, unless the parties otherwise mutually agree to meet in

person i.e. physical mode;