Patna High Court

M/S Hitendra Kumar Mishra vs The State Of Bihar on 17 May, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.5332 of 2022

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M/s Hitendra Kumar Mishra Son of Late Ram Bachan Mishra Resident of

Village- Salaha, Police Station- Govindganj, District- East Champaran

(Motihari).

... ... Petitioner/s Versus

1. The State of Bihar through its Secretary, Building Construction, Department of Government of Bihar, Patna.

2. The Chief Engineer (North), Building Construction Department, Government of Bihar, Patna.

3. The Superintending Engineer, Building Construction Division, East Champaran, Motihari.

4. The Executive Engineer, Building Construction Division, East Champaran, Motihari.

5. The B.D.O., Chakiya, East Champaran.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr. Lokesh Kumar Singh, Advocate

Mr. Sanjay Kumar, Advocate

For the Respondent/s : Mr. Amit Prakash, GA-13

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR

ORAL JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-05-2022 Patna High Court CWJC No.5332 of 2022 dt.17-05-2022

Heard learned counsel for the parties.

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

"That this is an application for issuance of an appropriate writ and/or order and/ or direction to the respondents for granting extension of time of the project as per agreement bearing agreement bearing agreement no. SBD No. 10/2017-18 for the Construction of Block I.T. Centre at Paharpur in the district of East Champaran for the year 2017-18.

The petitioner also prays for a direction to respondents for payment of 10% cut amounting to Rs. 21,39,182/- in the advance paid to the petitioner due to non-extension of time of the aforesaid project."

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).

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 Patna High Court CWJC No.5332 of 2022 dt.17-05-2022

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, (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 Patna High Court CWJC No.5332 of 2022 dt.17-05-2022

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 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 Patna High Court CWJC No.5332 of 2022 dt.17-05-2022

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 authority

concerned i.e. the Chief Engineer (North), Building

Construction 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

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 Patna High Court CWJC No.5332 of 2022 dt.17-05-2022

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

Pandemic- Covid-19 shall be conducted through digital

mode, unless the parties otherwise mutually agree to meet in

person i.e. physical mode;