Patna High Court

M/S Dhaneshwar Nath Construction vs The State Of Bihar on 30 January, 2023

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.17595 of 2022
     ======================================================

M/s Dhaneshwar Nath Construction through its Managing Partner, Rajiv Ranjan Singh, Gender- Male, aged about- 50 years, Son of Andrika Prasad Singh, Resident of- Sanjay Gandhi Nagar, Lalit Niketan Colony, Hanuman Nagar, P.S.- Kankarbagh, District and Town- Patna, Permanent Address- Village- Kistipur, Madhuban Road, Kosut, P.S.- Dhanarua, District and Town- Patna.

... ... Petitioner/s

Versus

1. The State of Bihar through the Principal Secretary, Rural Works Department, Government of Bihar, Visheweshraiya Bhawan, Bailey Road, Patna.

2. The Engineer-in- Chief, Rural Works Department, Visheweshraiya Bhawan, Bailey Road, Patna.

3. The Chief Engineer- I, Rural Works Department, Bihar, Patna.

4. The Superintending Engineer, Rural Works Department, Work Circle, Patna.

5. The Executive Engineer, Rural Works Department, Works Division, Masaurhi.

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

For the Petitioner/s : Mr.Lal Babu Singh, Advocate For the Respondent/s : Mr. Satya Vrat, AC to GP 10 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 30-01-2023

Petitioner has prayed for the following relief(s):

"(i) For a direction to the respondents to add GST, Seigniorage Charge and Labour Cess in the estimate and agreement in connection with the work of "Construction & Five Year Maintenance of Akauna Path to Yogapur Path in Punpun Block Under NABARD" Vide Agreement No. 12/SBD/2019-20 as Patna High Court CWJC No.17595 of 2022 dt.30-01-2023

GST, Seigniorage Charge and Labour Cess were not included in the original estimate and Bill of Quantity.

(ii) For a further direction to the respondents to refund/reimburse the deducted amount as Seignorage Charge and Labour Cess from R/A Bills of the Petitioner and GST for which the petitioner is liable to pay in connection with the aforesaid work.

(iii) For appropriate declaration that :-

a). The respondents are obliged under law to include Gst, Seigniorage Charge and Labour Cess in the estimate, bill of quantity and agreement.

b). The Respondents are obliged to refund/reimburse the amount already deducted as Seignorage Charge, Labour Cess from R/A Bills of the Petitioner and GST payable by the petitioner as per provisions of the Agreement and Law as the same was not included in the estimate, bill of quantity and agreement.

c). Non-adding and Non-

refund/reimburse the deducted amount as GST, Seignorage Charge and Labour Cess from R/A Bills of the Petitioner amount to unjust enrichment.

d). The action of the Respondents of non-refund/reimburse the GST, Seignorage Charge and Labour Cess from R/A Bills of the Petitioner is not only a breach of Contract but also violative of Fundamental Rights of the Petitioner guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India.

(iv) For any other relief(s) or consequential relief(s) to Patna High Court CWJC No.17595 of 2022 dt.30-01-2023

which the petitioner may be found entitled to in the facts and circumstances of this 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 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 four 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 Patna High Court CWJC No.17595 of 2022 dt.30-01-2023

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 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 Patna High Court CWJC No.17595 of 2022 dt.30-01-2023

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 has known what it was he was Patna High Court CWJC No.17595 of 2022 dt.30-01-2023

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.3, namely The Chief Engineer-

I, Rural Works Department, 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 four months

from the date of its filing along with a copy of this

order;