Kajal Kumari vs The Union Of India
2022 Latest Caselaw 2778 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10854 of 2020
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Kajal Kumari,aged about 24 years (Female) daughter of Sri Lal Babu Singh resident of Village- Sowan, P.S.- Krishna Brahm, District- Buxar, Pin Code- 802111 at present residing C/o Sri Ranjit Kumar Singh, Jamnipur Church, Opposite Bank of India, P.O. and P.S.- Maner, District- Patna Pin Code- 801108.

... ... Petitioner Versus

1. The Union of India through Secretary, Department of Pharmaceuticals, Ministry of Chemicals and Fertilizers, Government of India, New Delhi.

2. The Bureau of Pharma Public Sector Undertaking of India its Head Office situated at 8th Floor, Videocon Tower, Block E- 3 Jhandewalan Extension, New Delhi Pin Code 110055 through its Chief Executive Officer.

3. The Manager (Marketing) Bureau of Pharma Public Sector Undertaking of India.

4. The State of Bihar through the Principal Secretary, Health Department, Government of Bihar, Patna.

5. The Chairman, Managing Committee Bihar Rajaya Mansik Swasthy and Sahbadh Vigyan Sansthan, Koilwar Cum Principal Secretary, Health Department, Government of Bihar, Patna.

6. The Director, Mansik Arogyashala, Koilwar, P.S.- Koilwar, District-

Bhojpur.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Nagendra Kumar, Adv.

     For the Respondents      :    Mr. Basant Vikash AC to SC-22
     For the Union of India    :   Dr. K. N.Singh ASG

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 11-05-2022

The writ application has been filed seeking a direction

upon the respondents for allocation of space for opening of

Pradhan Mantri Bhartiya Jan Aushadhi Kendra (hereinafter Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

referred to as 'Kendra') within the jurisdiction of Mansik

Arogyashala, Koilwar (hereinafter referred to as

'Arogyashala'). The petitioner has also sought a direction upon

the respondents to issue necessary permission and to take a

decision for operating the Aushadhi Kendra at the Arogyashala.

2. The case of the petitioner is entirely based on the

Pradhan Mantri Bhartiya Jan Aushadhi Pariyojana (hereinafter

referred to as 'Pariyojana') to be implemented in the country

through the Bureau of Pharma Public Sector undertakings of

India (BPPI), a Society set up under the Department of

Pharmaceuticals, Ministry of Chemicals and Fertilizers, Govt.

of India. The BPPI is registered under the Societies Registration

Act and suitably assisted by the Central Government both

financially and technically.

3. The petitioner claims to be a graduate. She made an

application dated 08-04-2019 (Annexure-3), on her own

initiative, before the Director of the Arogyashala expressing her

desire to open a Kendra at the Arogyashala, for which she

sought permission. Annexure(s)-4 and 5 are two representations

dated 19-07-2019 and 09-09-2019 for the same purpose. It is

the petitioner's case that the Director of the Arogyashala has

issued a No Objection Certificate in favour of the petitioner, out Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

of five applicants and has thus recommended the name of the

petitioner for establishment of Arogyashala. It is also the

petitioner's case that her application was forwarded by the head

office of the BPPI to the Director of the Arogyashala under

communication dated 27-09-2019. Thereafter, it is the

petitioner's case that the BPPI, under communication dated

03-12-2019 (Annexure-8) asked the petitioner to submit some

documents for further processing of her application.

4. The Director of the Arogyashala, under communication

dated 02-01-2020, had requested the Management Committee

of the Arogyashala formally known as Bihar State Institute of

Mental Health & Allied Sciences (BIMHAS) as well as the

Principal Secretary, Health Department, who is also the

Chairman of the Management Committee of BIMHAS,

forwarding details of five applicants, who were desirous of

establishing a Kendra at the Arogyashala; and requested the

Management Committee to send necessary directions, based on

which, the process of selection could be carried out in this

regard. The petitioner also has represented to the Principal

Secretary, Health Department, again on 14.12.2020 (Annexure-

10).

5. A counter affidavit has been filed on behalf of the Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

Director of the Arogyashala. The stand of the Director is that the

petitioner's claim is based on the pariyojana, a centrally

sponsored Scheme. The procedure and process to be followed

for opening Kendra within the premises of the Arogyashala

have neither been communicated to the Management Committee

nor to the Arogyashala. Letters dated 28.02.2019 and

09.05.2019 were written by the Director of the Arogyashala to

the Chairman of the Management Committee-cum-Principal

Secretary, Health Department for allotment of land within the

premises of the Arogyashala for the purposes of the

establishment of Kendra.

6. The result of the various correspondence was issuance

of communication dated 30.12.2020 (Annexure- E to the

counter affidavit) whereby the Health Department has informed

the Director of the Arogyashala that since it is an autonomous

institution, it is itself competent to make available space for

opening and operation of Kendra at the Arogyashala. The stand

of the Arogyashala is that the guidelines issued by the BPPI

does not spell out the criteria and procedure for determination of

relative merit for selection of the agency to establish and operate

the Kendra, from amongst the various applicants. BIMHAS has

never issued any advertisement or public notice inviting Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

applications for opening a Kendra in their premises. Stand of

the Arogyashala in paragraph 16 of the counter affidavit, sums

up its concerns and is, therefore, useful to reproduce:-

"That it is submitted that in the interest of transparency and equal opportunity, it will be fair to permit inviting of application for opening of Jan Aushadhi Kendra within the premises of BIMHAS, after a duly published notice/advertisement to enable all interested agencies/individuals to be able to apply and selection of operator should be made based on criteria developed to determine relative merit, with due concurrence from the Health Dept., Government of Bihar."

7. The petitioner's counsel, however, on the other hand,

submits that the Scheme is clear in its intent and application and

it mandates opening of Kendra in the selected hospital/medical

colleges with the novel purpose of making available quality

generic medicine at affordable prices for all. The object of the

scheme is to coordinate the marketing and supply of

medicine/generic drugs from all sources. The Scheme, being in

larger/public interest, the authorities should immediately

identify a space within the Arogyashala and issue necessary

direction, allowing the petitioner to operate the Kendra as an

agency under the pariyojana (Scheme).

Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

8. The issue, which arises for consideration, in the instant

proceedings, is whether based on the Pariyojana, the petitioner

has a legally enforceable vested right to establish a Kendra at

the Arogyashala for enforcement of which a writ should be

issued by this Court exercising jurisdiction under Article 226 of

the Constitution of India? The law, in this regard, is well settled.

It is well established law that for issuance of a mandamus, to an

authority there must be a duty cast upon the authority based on a

corresponding right sought to be enforced.

9. From the pleadings, it is obvious that there were at

least five applicants claiming permission for setting up a

Kendra at the Arogyashala. The petitioner, however, has

asserted that No Objection certificate (Annexure-6) was issued

only in her favour by the Director of the Arogyashala. Bare

perusal of Annexure-6, however, reveals that such assertion of

the petitioner is incorrect. Annexure-6 is not a No Objection

Certificate in petitioner's favour. Annexure-6 is a Certificate

issued in light of the petitioner's application that the

Arogyashala has No objection to opening of a Kendra and that

requisite plot of land would be made available by the

Arogyashala to anyone who is granted permission for opening a

Kendra. Based on the No Objection Certificate dated Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

09.09.2019 (Annexure-6) no legally enforceable right is made

out in favour of the petitioner warranting or justifying exercise

of writ jurisdiction for issuance of orders or directions in the

nature of a writ of a mandamus to the authorities for facilitating

establishment of the Kendra at the Arogyashala by the writ

petitioner.

10. Another aspect of the matter, which requires

consideration is the admitted fact that without any advertisement

or public notice inviting application, the petitioner, on her own

initiative, has submitted her application. From the averments

made in the writ petition no case is made out to establish that

based on any criteria or procedure for selecting the persons to

operate a Kendra, the petitioner has been declared to be selected

or a right has accrued in her favour giving rise to a

corresponding duty on the authorities to make available space

for establishment of kendra and to permit her for establishing

the Kendra. No vested right is made out based on the averments

made in the writ petition.

11. This Court would observe that the petitioner has not

been able to establish any legally enforceable right for which

this Court may issue a direction in the nature of writ of

Mandamus in exercise of its jurisdiction under Article 226 of the Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

Constitution of India. A recent judgment of the Hon'ble Apex

Court in case of Hari Krishna Mandir Trust vs. State of

Maharashtra and Others reported in (2020)9 SCC 356 is worth

taking note of having regard to the facts and circumstances of

the instant case. This Court would, therefore, consider it useful

to reproduce relevant extract of the judgment of the Apex Court

reiterating the settled principle of law regarding exercise of writ

jurisdiction for issuance of an order or direction in the nature of

a writ of mandamus, which reads as follows:-

"102. In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the Government or the public authorities should have passed, had it properly and lawfully exercised its discretion. In Director of Settlements, A.P. v. M.R. Apparao [Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638]. Pattanaik, J.

observed: (SCC p. 659, para 17) "17. ... One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

by issuance of a writ of mandamus, "mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (emphasis ours) (see Kalyan Singh v. State of U.P. [Kalyan Singh v. State of U.P., AIR 1962 SC 1183] ). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."

(emphasis in original)

12. Considering the petitioner's case with reference to the

settled law regarding exercise of jurisdiction under Article 226

of the Constitution of India, this Court would observe that no Patna High Court CWJC No.10854 of 2020 dt.11-05-2022

legally enforceable right is made out by the petitioner. This

Court, therefore, does not find any merit in the writ petition.

The same is dismissed.

( Madhuresh Prasad, J) I agree Chakradhari Sharan Singh, J:

(Chakradhari Sharan Singh, J)

shyambihari/-

AFR/NAFR                AFR
CAV DATE                07-02-2022
Uploading Date          12-05-2022
Transmission Date