Patna High Court

Khushaboo Devi vs The State Of Bihar on 9 May, 2022

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.4223 of 2022
     ======================================================

1. Khushaboo Devi, Wife of Sri Pritam Kumar Kashyap, resident of Village and Post Office- Hata, Police Station- Chainpur, District- Kaimur at Bhabhua.

2. Bholu Kumar, Son of Sri Satyendra Prasad, resident of Ward No.1, Rampur Colony, Bhabhua, Police Station- Bhabhua, District- Kaimur at Bhabhua.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Department of Education, Bihar, Patna.

2. The Principal Secretary, Department of Education, Government of Bihar, Patna.

3. The Director, Mid Day Meal Scheme, Department of Education, Bihar, Patna.

4. The Tender Selection Committee through its Secretary, Mid Day Meal Scheme, Kaimur at Bhabhua.

5. The District Programme Officer-cum- the Secretary, Tender Selection Committee, Mid Day Meal Scheme, Kaimur at Bhabhua.

6. The District Magistrate-cum- Chairperson, Tender Selection Committee, Mid Day Meal Scheme, Kaimur at Bhabhua.

7. The District Magistrate, Kaimur at Bhabhua.

8. The District Programme Officer, Kaimur at Bhabhua.

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

For the Petitioner/s : Mr.Rajeev Shekhar, Advocate For the Respondent/s : Mr.Madanjeet Kumar, GP-20 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 09-05-2022

Heard learned counsel for the parties.

Petitioners have prayed for the following

relief(s):-

Patna High Court CWJC No.4223 of 2022 dt.09-05-2022

"i) To issue a direction to produce entire records related to the Notice Inviting Tender issued by the office of District Programme Officer, Mid Day Meal Scheme, Kaimur at Bhabhua and upon production of the same, issuance of writ in the nature of Certiorari for quashing the entire tender process including the award of the tender, if any, as the entire tender process suffers from the vices of opaqueness, malpractices and deviation from the terms of the Notice Inviting Tender.

ii) Upon quashing of the above, issuance of direction to the respondents to proceed in the tender in terms of the stipulations contained therein in transparent manner.

iii) To any other relief or reliefs to which the petitioners are entitled in the facts and circumstances of the case."

After the matter was heard for some time,

finding the Bench not to be agreeable with the submissions

made by learned counsel for the petitioners, learned counsel for

the petitioners, under instructions, states that petitioners shall be

content if a direction is issued to the authority concerned to

consider and decide the representation which the petitioners

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 petitioners, 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. Patna High Court CWJC No.4223 of 2022 dt.09-05-2022

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 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 Patna High Court CWJC No.4223 of 2022 dt.09-05-2022

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 proceedings for prerogative writs are subject in English Patna High Court CWJC No.4223 of 2022 dt.09-05-2022

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) Petitioners shall approach the authority

concerned i.e. Respondent No. 8 namely, The

District Programme Officer, Kaimur at Bhabhua

within a period of four weeks from today by

filing a representation for redressal of the

grievance(s);

Patna High Court CWJC No.4223 of 2022 dt.09-05-2022

(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;

communicated to the petitioners;

(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