Patna High Court

M/S Hitendra Kumar Mishra vs The State Of Bihar on 19 May, 2022

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5639 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 Singh, Advocate For the Respondent/s : Mr. Amit Prakash (GA-13) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 19-05-2022

Heard learned counsel for the parties.

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

"1. 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. 11/2017-18 for the Construction of Block I.T. Centre Building Kalyanpur Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

in the district of East Champaran for the year 2017-18.

The petitioner also prays for a direction to respondents for payment of l0% cut amounting to Rs. 25,2l,103/- in the advance paid to the petitioner due to non-extension of time of the aforesaid project.

Learned counsel for the petitioner states that

petitioner's case is squarely covered vide judgment dated

17.05.2022 passed by a co-ordinate Bench of this Court in

CWJC No. 5332 of 2022, titled as M/s Hitendra Kumar

Mishra Vs. The State of Bihar & Ors.

He further 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

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 Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

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 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 Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

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 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 Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

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. Respondent No. 2, namely 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 said authority 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

communicated to the petitioner;

(d) Needless to add, while considering such Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

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 Patna High Court CWJC No.5639 of 2022 dt.19-05-2022

current Pandemic- Covid-19 shall be conducted through

digital mode, unless the parties otherwise mutually agree

to meet in person i.e. physical mode;