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2013 DIGILAW 1309 (PAT)

Suresh Chandra Thakur v. State of Bihar

2013-11-19

RAMESH KUMAR DATTA

body2013
ORDER Heard learned counsel for the petitioner and learned counsel for the respondent District Bar Association, Samastipur. 2. The petitioner has filed the writ application seeking a direction on the respondent Nos. 2 and 3, District Bar Association, Samastipur to carry out the deed of agreement dated 20.7.2006 (Annexure-1) entered into between the petitioner and the respondent No.2 and further for quashing the letters dated 3.3.2009 and 21.4.2009 and a further direction not to interfere with Clause 6 of the deed dated 20.7.2006 as the petitioner never violated or circumvented any of the terms and conditions incorporated in the deed of agreement. 3. At the outset a preliminary objection is taken by learned counsel for the Bar Association that the writ application is not maintainable as the respondent Bar Association is neither a State nor an authority to which a writ can be issued with respect to a contractual relationship entered into between the Bar Association and a private contractor. 4. Learned counsel for the petitioner, however, submits that the writ application is maintainable as the land on which the Bar Association building is situated and with respect to the construction of which the contract was entered between the petitioner and the Bar Association on 20.7.2006, was given to it by the District Court. In support of the same learned counsel relies upon a decision of the Supreme Court in the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.R.Rudani and others : AIR 1989 SC 1607 , in paragraphs 19 and 20 of which it has been held as follows :– “19. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The words “Any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. 20. In Praga Tools Corporation Vs. Shri C.A.Imanual (1969) 3 SCR 773 : ( AIR 1969 SC 1306 ), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR) : “It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury’s Laws of England (3rd Ed. Vol.II p. 52 and onwards).” 5. It is argued by learned counsel for the petitioner on the strength of the aforesaid decision that for a writ to be enforceable by mandamus the duty may be imposed by contract as in the present matter and thus the writ would lie in the present matter. 6. In my view, the aforesaid decision does not support the stand of the petitioner. First of all what the petitioner seeks to enforce are purely contractual terms under the agreement dated 20.7.2006 between the petitioner and the Bar Association and not for performing any statutory public duty. Thus mere existence of a contract cannot give rise to a right for the issuance of a writ unless the contract imposes a public duty. First of all what the petitioner seeks to enforce are purely contractual terms under the agreement dated 20.7.2006 between the petitioner and the Bar Association and not for performing any statutory public duty. Thus mere existence of a contract cannot give rise to a right for the issuance of a writ unless the contract imposes a public duty. Nothing has been shown in the agreement dated 20.7.2006 in which any such public duty on the part of the Bar Association can be inferred. For the aforesaid reasons, I am of the view that the present writ application is not maintainable. 7. At this stage, learned counsel for the petitioner seeks that liberty may be granted to approach civil court for the redressal of his grievances. 8. The writ application is, accordingly, dismissed but with liberty to the petitioner to file civil suit for redressal of his grievances which shall be considered in accordance with law.