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PROJECT WORK OF ADMINISTRATIVE LAW

On the topic

WRIT OF MANDAMUS

Submitted to: Dr. Ali Mohammad

Faculty of Administrative Law

Submitted by: Sana Zaman

Roll No: 1229

3rd Year, (6th Sem.) B.B.A. LL.B (Hons.).


WRIT OF MANDAMUS

ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout


the course of this Administrative Law project. I am thankful for their aspiring guidance,
invaluably constructive criticism and friendly advice during the project work. I am sincerely
grateful to them for sharing their truthful and illuminating views on a number of issues related to
the project.

First, I would like to thank our professor Dr. Ali Mohammad for his exemplary guidance,
monitoring and constant encouragement throughout the course of this project.

The contributions made by my classmates and friends are, definitely, worth mentioning. I would
also like to express my gratitude towards the library staff for their help.

I would like to thank my parents for their constant support and encouragement without which
this project would not have been possible.

Last, but far from the least, I would express my gratitude towards the Almighty for the obvious
reasons.

-Sana Zaman

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WRIT OF MANDAMUS

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 4

AIMS AND OBJECTIVES ........................................................................................................... 7

HYPOTHESIS ................................................................................................................................ 7

RESEARCH METHODOLOGY................................................................................................... 7

WRIT OF MANDAMUS DEFINED ............................................................................................ 8

THE HISTORY OF ANCIENT WRIT OF MANDAMUS ......................................................... 10

MANDAMUS IN INDIAN LAW PRIOR TO CONSTITUTION .............................................. 11

FRAMEWORK OF LAW IN RELATION TO MANDAMUS .................................................. 11

CONDITIONS FOR THE GRANT OF MANDAMUS .............................................................. 13

INTERPRETATION OF PUBLIC RIGHT AND MANDAMUS............................................... 18

AGAINST WHOM MANDAMUS WILL NOT ISSUE ............................................................. 20

ALTERNATIVE REMEDY : A BAR TO MANDAMUS.......................................................... 22

CONCLUDING REMARKS AND SUGGESTIONS ................................................................. 24

BIBLIOGRAPHY ......................................................................................................................... 25

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WRIT OF MANDAMUS AGAINST THE ORDER OF ADMINISTRATIVE OR
STATUTOTY PUBLIC AUTHORITY

INTRODUCTION

In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High
Court to issue writs in case of breach of Fundamental rights of any citizen by the state. By such
writs the Judiciary can control the administrative actions and prevent any kind of arbitrary use of
power and discretion.

There are 5 kinds of writs namely:

1. Mandamus
2. Certiorari
3. Prohibition
4. Quo warranto
5. Habeas corpus

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes


mandate, is the name of one of the prerogative writs in the common law, and is issued by a
superior court to compel a lower court or a government officer to perform mandatory or purely
ministerial duties correctly. The word mandamus appeared in a number of orders issued by
the sovereigns who ruled England in the live centuries following the Norman Conquest. These
orders however were not concerned with the grievances of the citizens. The first instance of
mandamus being used for enforcing the fight of a private citizen was in 1615 when it was issued
to a mayor and corporation to restore a burgess to his office unless they could show cause to the
contrary. As no cause was shown, a peremptory order to restore him to the office was issued.1
By the early eighteenth century, it was used to compel performance of a variety of public duties
which had been wrongly refused.2 Mandamus lies to enforce a public duty in the performance of
which the petitioner has a sufficient legal interest, but he must show that he has demanded
performance which has been refused.3 It is discretionary and will not be granted if there is an

alternative remedy equally beneficial, convenient and effective.4

1
James Bagg's case, 11 Co. Rep, 93b 77 E.R. 1271. See Institute, Judicial review, p. 122.
2
R. v. Baker (1762) 3 Burr. 1265, 1267. See Institute, Judicial Review, ibid. S.I.
3
Syndicate v. Union of India. A.I.R. 1975 S.C. 460
4
I.L.I. Judicial Review through Writ Petitions, p. 163. v. Bank of England (1819) 2 B.S.A. 620.

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WRIT OF MANDAMUS

Writ of mandamus is a writ of most extensive remedial nature and is in form of a command
issuing from the higher courts of Justice directed to any person, corporation or an inferior
tribunal 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. Purpose of Writ of mandamus is to
remedy defects of justice and accordingly it will issue, to the end that justice may be done, where
all cases where there is a specific legal right and no specific legal remedy for enforcing that
right: and it may issue in cases where although there is an alternative legal remedy, yet the mode
of redress is less convenient beneficial and effectual.5 However, a Writ of mandamus cannot be

issued to compel an authority to do something against the statutory provision.6

No one can ask for a mandamus without a legal right. There must be a judicially enforceable as
well as legally protected right before one suffering a legal grievance can ask for a mandamus. A
person can be said to be aggrieved only when he is denied a legal right by someone who has a
legal duty to do something and abstains from doing it4.

An applicant praying for a Writ of mandamus must show that, he has a legal right to compel the
opponent to refrain from doing something. In other words, there must be in the applicant a right
to compel the performance of some duty cast on the opponent.7

The duty sought to be enforced must have three qualities, viz:

1. It must be a duty of public nature. A duty will be of a public nature if it is created by the

provisions of the Constitution8 OR of a statute9 OR some rule of common law.10 A


public duty need not, however be always statutory.11 A duty corresponding to a private
right is not a duty which can be enforced by mandamus.
2. The duty must be imperative and not discretionary one. In other words,mandamus lie to
compel the performance of an absolute duty. The office of a mandamus is to compel the

5
Halsbury's Laws of England. 4th Edition. Vol. I Para 89 [B]
6
Hope Textiles Ltd. v. Union of India. 1995 Supp (3) SCC 199 [l]
7
Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276 a
8
Union of India V. Orient Enterprises, (1998) 3 SCC 501 [8]
9
Rashid Ahmed v. Municipal Board, AIR 1950 SC 610 [B]
10
State of Bombay v. Hospital Mazdoor Sabha. AIR 1960 SC 610 [l]
11
Sharif Ahmed v. Regional Transport Authority. AIR 1978 SC 209 [B]

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WRIT OF MANDAMUS

performance of a plain and positive duty. It is issued upon the application of one who has
a clear right to demand such performance, and who has no other adequate remedy.12
3. No mandamus will lie where the duty is of a discretionary in nature. It is issued to
enforce the performance of ministerial functions and it must be issued when, there is no
alternative remedy available to enforce such functions.13

An application of mandamus will not lie for an order of reinstatement to an office which is
essentially of a private character, nor can such application be maintained to secure
performance of obligations owed by a company registered under the Companies Act towards
its workmen or to resolve any private dispute.14

It is not necessary that, the person or authority on whom the statutory duty is imposed need be a
public authority. 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 their organization is constituted or governed
or to carry out the duties placed on them by the statutes authorizing their undertakings. Writ of
mandamus will also lie against companies constituted for the purpose of fulfilling public
responsibilities.15

Writ of mandamus lies to secure the performance of a public or statutory duty in the performance
of which the one who applies for it has a right or sufficient legal interest14. or whose rights are
directly and substantially invaded and are in imminent danger of being invaded15.

However, Writ of mandamus cannot be issued to the State Government to prevent it from
considering a bill which is alleged to have been in violation of Constitution. Similarly, no court
can issue a mandate to any Legislature to enact any specific law.16

12
Andi Mukta Sadguru Shree SMVSJMS Trust v. VR Rudani, AIR 1989 SC 1607 [8]
13
Robert L. Cutting. Re, 94 US 14 [B]
14
Sharif Ahmed v. Regional Transport Authority. AIR 1978 SC 209 [E]
15
Praga Tools Corporation v. CA !manual, (1969) 1 SCC 585 [B]
16
State of Kerala v. Lakshmikutty, AIR 1987 SC 331

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WRIT OF MANDAMUS

AIMS AND OBJECTIVES

The aims and objectives of the researcher are as follows:

1. To get acquainted with the writ of mandamus.


2. To study mandamus under Indian Law prior to Constitution.
3. To study the evolution, application, efficacy and constitutional validity of writ of
mandamus.
4. To study the interpretation of public right and mandamus.

HYPOTHESIS

The following hypotheses are framed by the researcher in order to test them after scanning
through the theoretical orientations of the work;

1. Mandamus is not a writ of right, it is not consequently granted of course, but only at the
discretion of the court to whom the application for it is made and this discretion is not
exercised in favor of the applicant. Unless some just useful purpose may be answered by
the writ.
2. A writ of mandamus is pre-eminently a public law remedy and is not generally available
against private wrongs.

RESEARCH METHODOLOGY

The researcher has opted to pursue the study with doctrinal research; doctrinaire method of
research has been adopted based upon secondary source material in nature of books, periodicals,
reports, articles and the like. No doctrinal method is employed by the researcher in this project
work.

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WRIT OF MANDAMUS

WRIT OF MANDAMUS DEFINED

Mandamus according to Black's law dictionary, Ninth Edition:

A writ issued by a court to compel performance of a particular act by lower court or a


governmental officer or body, to correct a prior action or failure to act.

Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009:

A high prerogative writ of a most extensive remedial nature. In form it is a command issuing in
the King's name from the King's Bench Division of the High Court only, and addressed to any
person, corporation, or inferior court of judicature requiring them to do something therein
specified, which appertains to their office, and which the court holds to be consonant to right and
justice. It is used principally for public purposes, and to enforce performance of public duties. It
enforces, however, some private rights when they are withheld by public officers.

The writ of Mandamus is considered an extraordinary legal remedy and is reserved for
extraordinary emergencies, being a supplementary means of obtaining substantial justice where
there is no clear right and no other adequate legal remedy.17

At the same time there are certain conditions under which a writ of mandamus may be issued to
an authority. These would be:

1. The applicant must have a legal right: The applicant must have a general legal right
which can be judicially enforceable.18 These must also be particular in nature in the fact
that they should directly and substantially affect the rights of the person filing the suit
although he need not have been actually injured by the writ.19 He could be in imminent
danger of these rights being invaded as well.20 This right should be subsisting on the date
of filing the petition and should not have expired else the Court would be issuing

17
State of Kerala v. Lakshmikutty, (1986) 4 SCC 632; Mani Subrat v. State of Haryana, (1977) 1 SCC 486.
18
Prage Tools Corporation v. C.A. Imanual, (1969) 1 SCC 585.
19
Maganbhai Ishvarbhai v. Union of India, (1970) 3 SCC 400
20
Kalyan Singh v. State of Uttar Pradesh, AIR 1962 SC 1183; Guruswamy v. State of Mysore, AIR 1954 SC 592.

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WRIT OF MANDAMUS

ineffective and useless writs.21 While issuing a mandamus, it also needs to see that
though it can ensure that the appropriate authority takes the requisite action and pass an
order to ensure regularity of procedure, it cannot interfere with the actual functioning of
the authority especially in matters of discretion.22
2. The opposite party must have a legal duty: A writ of mandamus can be issued against any

person, tribunal, or corporation requiring him to do that which the statute23, common law
or the Constitution[xiv] requires him to do.24
3. The application should be made in good faith: The application for mandamus should be
made in good faith and not for any ulterior motive as this would defeat the sole purpose
of Fundamental Rights.25
4. The applicant should not have any other legal remedy: Mandamus cannot be refused on
the grounds that there is an adequate, alternate remedy if a petitioner complains that his

fundamental rights have been infringed.26 It is only when a mandamus is sought for any
other purpose that the existence of an alternative remedy will bar its issuance.27
5. The opposite party must have refused relief: There must be a substantial refusal to
address the problem, which need not be in any particular form in order for a writ petition

to succeed.28 However, the demand need not be made in cases where it would be obvious
that the other party would not or was incapable of answering the demand.29

Thus these would be the requisites for a mandamus to be issued. However, at the same time, a
mandamus can be issued for the following causes. It may be issued for the enforcement of
Fundamental Rights. This would arise mainly when there is a denial of equal protection under

21
Lift Irrigation Corporation v. Mohanty, (1991) 2 SCC 295; State of West Bengal v. Swapan Kumar, (1982) 1
SCC 561; Jagdish Prasad v. M.C.D., 1993 Supp. (2) SCC 221 where the Supreme Court refused to issue a
mandamus to enforce the claim of employees for the transfer of ownership of certain property to them as they
had no right to it and it was a discretionary power.
22
Dwarka Nath v. I.T.O., Kanpur, AIR 1966 SC 81.
23
Wadhwa v. State of Bihar, (1987) 1 SCC 378; Nakara v. Union of India, (1983) 1 SCC 305; Delhi Transport
Corporation v. D.T.C. Mazdoor Congress, 1991 Supp. (1) SCC 600.
24
Mani Subrat v. State of Haryana, (1977) 1 SCC 486.
25
Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC 449.
26
Ibid.
27
Bombay v. United Motors Ltd., AIR 1953 SC 252.
28
K.S. Rashid ( K.S. & Sons) v. ITI Commission, AIR 1954 SC 207.
29
Rabindra v. State of West Bengal, AIR 1954 Cal 394.

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WRIT OF MANDAMUS

the law.30 It could also be for the enforcement of legal rights,31 as well as in matters dealing
with taxation, such as to quash illegal assessment orders and refund illegal taxes.32 It could also
be used to quash disciplinary actions or for restitution and reinstatement of government
servants33 among other reasons.

THE HISTORY OF ANCIENT WRIT OF MANDAMUS

The writ of mandamus is of a very ancient origin, dating back at the latest to the times of Edward
II. It is a product of the British common law and derived from the Magna Carta introduced to
ampliate justice by preventing disorders in the judicial system. It seems originally to have been
one of that large classes of writs by which the Sovereign of England directed the performance of
any desired act by his subjects, the word missive in such writs and letters, having given rise to
the present name of the writ. These letters, missives or mandates, to which the generic term
mandamus was applied, were in no sense judicial writs but were merely commands issuing
directly from the sovereign to the subject without the intervention of the court. The writ in the
shape of these commands, however, became obsolete at a very early stage and gradually it came
to be confined to the judicial writ issued by the King's Bench which has by steady growth
developed into the writ of mandamus, which is, in general, a command issuing in the King's
name from the Court of King's bench and directed to any person, corporation or inferior court of
jurisdiction within the King's Dominions requiring them to do some particular thing therein
specified which appertains to their office and duty, and which the Court of King's bench has
previously determined, or at least supposes to be a consonant to right and justice. It is high
prerogative writ of a most extensive remedial nature... And issues in all cases where a party has a
right to have anything done, and hath no other specific means of compelling its performance.34

30
Sheoshankar v. State of M.P., 52 Cri LJ 1140.
31
Ram Prasad v. State of Bihar, AIR 1953 SC 215.
32
Immunity Co. v. State of Bihar, AIR 1955 SC 661.
33
S.T.O. Banaras v. Kanhaiya Lal, AIR 1959 SC 135.
34
Blackstone, 3 Com 100: High on Extraordinary Legal

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MANDAMUS IN INDIAN LAW PRIOR TO CONSTITUTION

Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta
in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. In
1877, the Specific Relief Act substituted an order in the nature of mandamus in the place of the
writ of mandamus for the purpose of requiring any specific act to be done or forborne within the
local limits of its ordinary civil jurisdiction by any person holding a public office.35

Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been
omitted. This omission must have been because such a provision under the Specific Relief Act
became redundant since the Constitution of India contains a similar and more efficacious
provision for the enforcement of public duties. The Constitution empowered all High Courts to
issue directions, orders or writs including writs in the nature of mandamus for the enforcement of
any of the rights conferred by Part III and for any other purpose.36 The Supreme Court can also

issue mandamus for the enforcement of fundamental rights.37

FRAMEWORK OF LAW IN RELATION TO MANDAMUS

The Supreme Court has the power to issue writs under the Constitution of India, art. 329. The
Supreme Court has the power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, certiorari, prohibition and quo warranto, whichever may be
appropriate for the enforcement of any right conferred by this part. It is an important part of the
constitution. Art. 32 guarantee to every person the right to move the Supreme Court directly for
enforcement of fundamental rights. It provides an inexpensive and expeditious remedy. In
Ambedkars memorable words: If I was asked to name any particular Article in the Constitution
as the most important - an Article without which this Constitution would be a nullity-I could not
refer to any other Article except this one. It is the very soul of the Constitution and the very heart

35
P.M. BAKSHI, CONSTITUTION OF INDIA (New Delhi: Universal Law Publication, 2000) (74).
36
Ibid.
37
Vineet Narain vs. Union of India 1998 AIR (SC) 889.

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WRIT OF MANDAMUS

of it38. This provision states that there must be a clear breach of fundamental right not
involving disputed questions of fact. It also states that government policy may not be enforced by
writ under the article. With regard to mandamus, art. 32 states that it may be issued where a
fundamental right is infringed by a statute. It may be a statutory order or an executive order.
However, according to some decisions it is discretionary.39 The aforesaid provision also
mentions continuing mandamus where a mere issue of mandamus would be futile against a
public agency guilty of continuous inertia and thus continuing mandamus may be issued. This
continuous mandamus has become the most commonly issued mandamus. Although the
framework of law clearly states where a mandamus may be issued, the courts have not found it
easy in many cases whether to issue a mandamus and it has become an important question of
law.

38
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
39
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.

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CONDITIONS FOR THE GRANT OF MANDAMUS

Following are the conditions upon which writ of mandamus is granted:

i. There must be public or private duty; Untill recently the law was that mandamus
would be only to enforce a duty which is public in nature. Therefore a duty private in
nature and arising out of a contract was not enforceable through this writ. It was on
this basis that in I.T. Commr v. State of Madras40, the court refused to issue
mandamus where the petitioners wanted the government to fulfill its obligation
arising out of a contract. However, recently in Gujrat State Financial Corporation v.
Lotus Hotel41 , the Supreme Court issued writ of mandamus for the specific
performance of a contract to advance money. In this case the Gujrat Financial
Corporation a government instrumentality had sanctioned a loan of Rs.30 lakhs to
Lotus Hotel for the construction but later on refused to pay the amount. A public duty
is one which is created either by a statute, the constitution or by some rule of common
law. The public duty enforceable through mandamus must also be an absolute duty.
Absolute is one which is mandatory and not discretionary. Therefore in Manjula
Manjari v. Director of Public Instruction42, the court refused to issue mandamus
against the Director of Public Instruction compelling him to include the petitioner's
textbook in the list of approved books because it was a matter in the complete
direction of the authority. Mandamus would not lie where the duty is ministerial in
nature. A ministerial duty is one where the authority has to act on the instructions of
his superior.43 In the same manner mandamus cannot be issued to enforce
administrative directions which do not have the force of law, hence it is discretionary
with the authority to accept it or to reject it.44 But where the administrative
instructions are binding, mandamus would lie to enforce it.45 Mandamus would also

40
A.I.R. 1954 Mad.54.
41
(1983) 3 S.C.C. 379.
42
A.I.R. 1952 Ori 344.
43
T.K.Singh v. Extra Asstt.Commr., A.I.R.1956 Mani 1
44
G.J. Fernandez v. State of Mysore A.I.R.1967 S.C.1753.
45
Jagjit Singh v. State of Punjab,(1978) 2 S.C.C. 196.

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WRIT OF MANDAMUS

lie to compel the authority to refund the amount of fee it has collected under law
which has been declared ultra vires by the competent court.46
ii. There must be a specific demand and refusal; Before mandamus can be granted there
must be a specific demand for the fulfilment of duty and there must be specific
refusal by the authority. Therefore in Naubat Rai v. Union of India47, the court
refused mandamus because the petitioner who was illegally dismissed from the
military form never applied to the authority for reinstatement. To maintain a petition
for mandamus, the petitioner must show that he has a right to compel the government
to act in a particular manner. In the absence of any such right, mandamus cannot be
granted. The existence of such a right is the sine qua non for the issuance of the
writ48. When the governing body of a college appointed a new principal after
interviewing the candidates and considering their applications, mandamus would not
be issued on the petition of an unsuccessful candidate as he has no legal right to be
appointed. Formerly, the rule was that only a person having a specific legal right to
the performance of the duty by the concerned public authority had a right to seek
mandamus. This meant a very strict legal standing rule and laid emphasis on
individual right rather than public interest. The standing rule has now been very much
relaxed and emphasis has come to be shifted from vindication of individual right to
public interest. The principal has come to be that public authorities should be made
to perform their duties, as a matter of public interest, at the instance of any person
genuinely interested; subject always to the discretion of the count. For the issue of
mandamus against an administrative authority the, affected individual must demand
justice and only on refusal he has a right to approach the court.49 Thus, a party
seeking mandamus must show that he demand justice from the authority concerned
by performing his duty and the demand was refused. In S.I. syndicate, the court
refused to grant mandamus as there was no such demand or refusal where a civil
servant approached the court for mandamus against wrongful denial of promotion, he
was denied the relief because of his failure to make representation to the government
46
Shiv Shankar Dal Mills v. State of Haryana, (1980) 2 S.C.C.
47
A.I.R. 1953 Puni 137.
48
Mani Subrat v. Haryana, A.I.R.1977 S.C.276.
49
Shivendra v. Nalanda College, A.I.R.1962 S.C. 1210.

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WRIT OF MANDAMUS

against injustice. The demand for justice is not a matter of form but a matter of substance,
and it is necessary that a proper and sufficient demand has to be made. 50
The demand must be made to the proper authority and not to an authority which is not
in a position to perform its duty in the manner demanded. It is suggested that the
court should not fossilize this rule into something rigid and inflexible but keep it as
flexible. Demand may also not be necessary where it is obvious that the respondent
would not comply with it and therefore it would be but idle formality.51 However,
express demand and refusal is not necessary. Demand and refusal can be inferred
from the circumstances also.52 Therefore, in Venugopalan v. Commr. Vijayawada

Municipality53, the court inferred demand and refusal from the situation in which the
petitioner filed a suit for injunction restraining the municipality from holding
elections and the suit was contested by the municipality.

iii. There must be a clear right to enforce the duty; Mandamus will not be issued unless
there is, in the applicant, a right to compel the performance of some duty cast on the
authority. Therefore, in S.P. Manocha v. State of M.P54, the court refused to issue
mandamus to the college to about the petitioner because the petitioner could not
establish a clear right to admission in the college. The right to enforce a duty must
subsist till the date of the petition. If the right has been lawfully terminated before
filing the petition, mandamus55 cannot be issued. Mandamus is employed to enforce
a duty the performance of which is imperative and not optional or discretionary with
the authority concerned^. Mandamus is used to enforce the performance of public
duties by public authorities. Mandamus56 is not issued when government is under no
duty under the law. A state government made a rule taking power to grant dearness
allowance to its employees. The rule neither conferred any right on the government
employees to get the dearness-allowance nor imposed any duty on the government to
grant the same. The government had merely taken power to grant the allowance in its

50
S.I. Syndicate v. India, A.I.R.1975 S.C.460.
51
Amrit Lai v. Collector, C.E.C. Revenue, A.I.R.1975 S.C. 538.
52
The Statesman v. Fact Finding Committee, A.I.R.1975 Cal.l4.
53
Narayan Singh v. Rajasthan, A.I.R.1984 Raj.69.
54
A.I.R. 1957 A.P. 833.
55
A.I.R. 1973 M.P. 84.
56
Kalyan Singh v. State of U.P. A.I.R.1962 S.C. 1183.

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WRIT OF MANDAMUS

discretion. Accordingly, mandamus could not be issued directing the government to


grant the allowance to its employees57. Mandamus cannot be issued directing the
state government to appoint a commission to inquire into changes in climatic cycle,
floods in the state etc. The reason being that under the commission of Inquiry Act, the
power of the government to appoint a commission is discretionary except when the
legislative passes a resolution to appoint an enquiry commission. Mandamus can be
issued on all those courts on which certiorari and prohibition can be issued.
Therefore, mandamus can be issued for lack of jurisdiction, excess of jurisdiction,
abuse of jurisdiction, for violation of the principles of natural justice and error of law
apparent on the face of record. Mandamus may be issued not only to compel the
authority to do something but also to restrain it from doing something. It provides a
general remedy in administrative law. Like any other extraordinary remedy, the grant
of mandamus is discretionary. The court may refuse it if there is unreasonable delay
in filing the petition, or if there is adequate alternative remedy, or if it is premature, or
if its issuance would be in-fructuous and futile. Mandamus would also not be against
the President or Governor of any state for the exercise and performance of powers
and duties of his office.58 In hearing the petition for mandamus, the court does not sit

as a court of appeal. The court will not examine the correctness59 or otherwise of the
decision on merits. It cannot substitute its own wisdom for the discretion vested in the
authority unless the exercise of discretion is illegal60. This is true for other writs also.
There being no Fundamental Rights in England, there cannot be any question of the
writ of mandamus being used for the enforcement of Fundamental Rights. It is used
for the enforcement of the ordinary legal rights relating to public can be issued for
lack of jurisdiction, excess of jurisdiction, abuse of jurisdiction, for violation of the
principles of natural justice and error of law apparent on the face of record.
Mandamus may be issued not only to compel the authority to do something but also
to restrain it from doing something. It provides a general remedy in administrative
law. Like any other extraordinary remedy, the grant of mandamus is discretionary.
57
Madhya Pradesh v. Mandavar, A.I.R.1954 S.C.493; K.V.R.Setty v. Mysore, A.I.R.1967 S.C.993.
58
Vijay Mehta v. State A.I.R.1980 Raj.207; Rajinder Kumar v. Punjab, A.I.R. 1983 Punj.285.
59
V.C., Utkal University v. S.K.Ghosh, A.I.R.1954 S.C.217.
60
Ibid.

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WRIT OF MANDAMUS

The court may refuse it if there is unreasonable delay in filing the petition, or if there
is adequate alternative remedy, or if it is premature, or if its issuance would be in-
fructuous and futile. Mandamus would also not be against the President or Governor
of any state for the exercise and performance of powers and duties of his office. 61 In
hearing the petition for mandamus, the court does not sit as a court of appeal. The
court will not examine the correctness62 or otherwise of the decision on merits. It
cannot substitute its own wisdom for the discretion vested in the authority unless the
exercise of discretion is illegal.63 This is true for other writs also. There being no
Fundamental Rights in England, there cannot be any question of the writ of
mandamus being used for the enforcement of Fundamental Rights. It is used for the
enforcement of the ordinary legal rights relating to public matters. In India, the writ is
available under Article 226 not only for the purposes for which it is available in
England but also for the enforcement of Fundamental Rights. It is obvious, therefore,
that in the matter of enforcement of Fundamental Rights, Indian Courts may have to
evolve principles which are different from those which govern the issue of the writ in
England. For instance, the remedy by means of the writ being guaranteed by the
Constitution for the enforcement of the Fundamental Rights, it becomes the duty of
the court to issue the writ of mandamus where a Fundamental Right has been
infringed, in case where the writ might not be available in England.

61
Chingleput Betters v. Majestic Bottling Co., A.I.R.1984 S.C. 1030.
62
Kalyan Singh v. State of U.P. A.I.R.1962 S.C. 1183.
63
Narayan Singh v. Rajasthan, A.I.R.1984 Raj.69.

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WRIT OF MANDAMUS

INTERPRETATION OF PUBLIC RIGHT AND MANDAMUS

Mandamus lies against authorities whose duty is to perform certain acts and they have failed
to do so. Under following circumstances mandamus can be issued:

i) The applicant must have a legal right to the performance of a legal duty64. It will not
issue where to do or not to do an act is left to the discretion of the authority65. It was
refused where the legal duty arose from an agreement which was in dispute.66 The
duty to be enforced by a writ mandamus could arise by a provision of the
Constitution67 or of a statute68 or of the common law.69
ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V.
Imanual,70 and Sohanlal v. Union of India71t he Supreme Court stated that mandamus
might under certain circumstances lie against a private individual if it is established
that he has colluded with a public authority.
It will not issue against a private individual to enforce a private right such as a
contract.72 Even though mandamus does not lie to enforce a contract inter parties, it
will lie where the petitioners contractual right with a third party is interfered with by
the State.73 Mandamus will not issue to enforce departmental manuals or instructions
not having any statutory force which do not give rise to any legal right in favour of
the petitioner as in the cases of Raman & Raman v. State of Madras,74 State of Assam
v. Ajit Kumar.75 However if the authority were under law obliged to exercise
discretion, mandamus would lie to exercise it in one way or the other. Mandamus can
64
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
65
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v. Manbodhanlal, A.I.R. 1957
S.C. 912: (1958) S.C.R. 533. T.G. Gaokar v. R.N. Shukla, A.I.R. 1968 S.C. 1050; Rajalakshmiah v. State of
Mysore, A.I.R. 1967 S.C. 993.
66
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
67
Chintaman Rao v. Slate of M.P., A.l.R. 1951 S.C. 118:(1950) S.C.R. 759; Rashid Ahmed v. Municipal
Board, A.l.R. 1950 S.C. 163: (1950) S.C.R. 566
68
State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610.
69
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280.
70
A.l.R. 1969 S.C. 1306
71
A.I.R. 1957 S.C. 529: (1957) S.C.R. 738
72
Lekhraj v. Deputy Custodian. Bombay, A.l.R. 1966 S.C. 334; Shantabai v. Bombay, A.l.R. 1958 S.C. 532;
Jaidev Jain & Co. v. Union of India A.l.R. 1972 Cal. 253.
73
Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044, 1047.
74
A.l.R. 1959 S.C. 694
75
A.l.R. 1965 S.C. 1196.

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WRIT OF MANDAMUS

be issued to compel an income-tax officer to carry out the instructions issued by


income-tax appellate tribunal exercising its appellate power.76 Again it can be issued
to a municipality to discharge its statutory duty.77
There are however exceptions to this rule. Where there is no statutory provision,
executive instructions fill in the gap and are capable of conferring rights on the citizen
imposing obligations on the authorities. In appropriate cases the courts may even
compel the performance of such a duty.78 Mandamus is not available where the order

upon which the alleged right of the petitioner is founded is itself ultra vires.79
Similarly it was held that the grant of dearness allowance at a particular rate is a
matter of grace and not a matter of right and hence mandamus cannot issue to compel
the Government to pay dearness allowance at a particular rate.80 Article 320 (3) of
the Constitution which provides that before a government servant is dismissed, the
Union Public Service Commission should be consulted, does not confer any right on a
public servant and hence failure to consult the Public Service Commission does not
entitle the public servant to get mandamus for compelling the government to consult
the Commission.81 Where provisions are merely directory, non-compliance with
them does not render an act invalid and hence no mandamus issues.
iii) The right sought to be enforced must be subsisting on the date of the petition. If the
interest of the petitioner has been lawfully terminated before that date, he is not
entitled to the writ.82
iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions
to this rule. Anybody who is likely to be affected by the order of a public officer is
entitled to bring an application for mandamus if the officer acts in contravention of his
statutory duty.83 Thus an intending bidder at an auction is entitled to apply if the
authority holding the auction acts contrary to the statute under which

76
Bhopal Sugar Industries v. I.T.O. AIR 1961 SC 182
77
Rampal v. State AIR 1981 Raj. 121
78
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310.
79
Prakaslt v. Principal, A.l.R. 1965 M.P. 217, 218.
80
State of M P. v. G.C. Mandamir, A.l.R. 1954 S.C- 493.
81
State of U.P. v. Manbodhantal, A.I.R. 1957 S.C. 912; (I958) S.C.R. 533.
82
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. IIS3.
83
Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592

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WRIT OF MANDAMUS

the auction is held or fails to perform his statutory duties in connection with the
auction.84 A person against whom an illegal or unconstitutional order is made is
entitled to apply to the court for redress even before such order is actually enforced
against him or even before something to his detriment is done in pursuance of the
order. For, the issue of such order constitutes an immediate encroachment on his
rights and he can refuse to comply with it only at his peril.85

AGAINST WHOM MANDAMUS WILL NOT ISSUE

In England, mandamus does not lie upon the Crown. In India, it will not lie upon the President
and the Governor of a State in their personal capacities.86 However, the Constitution expressly
provides that appropriate proceedings may be brought against the Government of India and the
Government of a State.87 Further the Constitution empowers the courts to issue to any person or
authority, including in appropriate cases any Government any of the writs mentioned there in.31
Mandamus is therefore issued against the government.88

No mandamus will lie against an officer or a member of parliament or an officer or member of


the legislature of a State In whom powers are vested by or under the Constitution for regulating
procedure or the conduct of business or for maintaining order in Parliament or the State
legislature.89 Mandamus will not issue to a legislature to forbid it from passing legislation
repugnant to the fundamental rights.90 Mandamus was issued to a municipality to forbid
collection of a tax ultra vires the Municipalities Act,91 to a University directing it to forbear from

84
Ibid.
85
Commr. of Police, Bombayv. Gordhandas Bhanji, A.I.R. 1952 S.C. 16: (1952) S.C.R. 135, 148; Bengal Immunity
Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661: (1955) 2 S.C.R. 603.
86
Article 361 of the Constitution of India, 1950.
87
Articles 300 und 361, Constitution of India, 1950.
88
Article 226, Constitution of India, 1950.
89
Ram Prasad v. Bihar, A.l.R. 1953 S.C. 215 ;(1953) S.C.R. 1129; Jagannath v. State of Orissa, (1954)
S.C.R. 1046; State of Rajastan v. Nathmal, A.l.R. 19 54 S.C, 307: (1954) S.C.R. 982.
90
Article 122 (2) and 212 (2), Constitution of India, 1950.
91
Choteylal v. State of U.P., A.l.R. 1951 All 228.

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WRIT OF MANDAMUS

giving effect to an order made in violation of its own rules.92 Article 329 of the Constitution
precludes any law courts from entertaining electoral matters such as the validity any law relating
to the delimitation of constituencies or the allotment of seats to such constituencies, made or
purporting to beside under article 327 or article 328 and provides that no election to either House
of Parliament or to the House or either House of the legislature of a State shall be questioned
except by an election petition presented as provided by Parliament. Election includes everything
from the issue of the notification to the announcement of the result. It is not therefore possible to
obtain mandamus against officials conducting the various stages of an election; it was refused
against a returning officer who rejected a nomination paper.93 This ban however applies only in
respect of elections to Parliament and State legislatures. Mandamus was issued upon the Deputy
Commissioner compelling him to hold municipal elections within a month and a half.94

Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal
interest in the performance it will issue even if the body against which it is claimed is not a
statutory body. Thus it was issued against the Sanskrit Council; which was constituted by a
resolution of the state government to compel it to hold the examination and publish the results.95
However, it will not lie to secure performance by a company of a duty towards its employees
which is not of a public nature.96

92
K.K. Samij v. JVagpur Corporation, A.l.R. 1956 Nag. 152.
93
Tapendra Nath Roy v. University of Calcutta, A.l.R. 1954 Cal. 141
94
Shankar v. Returning Officer, A.I.R. 1952 Bom 277
95
Kartar Singh v. State of Patiala, A.l.R. 1951 Pepsu 141.
96
State of Bombay v. United Motors. A.I.R 1953 S.C. 252: (1953) S.C.R. 1069.

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WRIT OF MANDAMUS

ALTERNATIVE REMEDY : A BAR TO MANDAMUS

Mandamus is not refused on the ground that there is an adequate alternate remedy where the
petitioner complains that his fundamental right is infringed.97 The courts are duty bound to
protect the fundamental rights and therefore mandamus is issued. It is only when mandamus is
issued for any other purpose that the existence of an alternate remedy bars its issuance.98
Mandamus will not, however, be refused when ordinary civil proceedings or administrative
appeals or revision do not provide an equally effective and convenient remedy. Thus if the
alternative remedy imposes a heavy financial burden on the petitioner, it will not be regarded as
a ground for refusing mandamus.99


Demand and refusal:

For the issue of mandamus against an administrative authority the affected individual must
demand justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union
of India100, the Supreme Court has adopted the following statement of law in this regard. :

As a general rule the orders would 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 the demand was met by a refusal.

Thus, a party seeking mandamus must show that the demand justice from the authority
concerned by performing his duty and that the demand was refused. In S.I. Syndicate the court
refused to grant mandamus as there was no such demand or refusal. Where a civil servant
approached the court for mandamus against wrongful denial of promotion, he was denied the

97
The Praga Toots Corporation v. C.V. Immanuel, A.I.R. 1969 S.C- 1306.
98
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252: (1953) S.C.R. 1069.
99
Veerappa Pillai v. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192: (1952) SCR 583,
100
AIR 1975 SC 460

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WRIT OF MANDAMUS

relief because of his failure to make representation to the government against injustice.101 The
demand for justice is not a matter of form but a matter of substance and it is necessary that a
proper and sufficient matter has to be made.102 The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in manner
demanded. It is suggested that the court should not fossilize this rule into something rigid and
inflexible but keep it as flexible. As Wade suggests, these formalities are usually fulfilled by the
conduct of the parties prior to the application, and refusal to perform the duty is readily from
conduct. Demand may also not be necessary where it is obvious that the respondent would not
comply with it and therefore it would be but an ideal formality.


UK perspective:

The writ of mandamus is commonly used as weapon by the ordinary civilian when public
authority fails to do its duty. Mandamus is used to enforce performance of many duties which
directly affect the individual. Mandamus can be issued where there is duty to exercise discretion,
such a duty of the tribunal to hear and determine a case within its jurisdiction.

Section 10 of the Tribunals & enquiries Act, 1992, imposes a duty on tribunal to give reasons for
its decisions. Such a duty may be enforced by issuance of writ of mandamus.

A writ of mandamus is not being granted where law provides some other adequate remedy.
However mandamus has lost the character of residual remedy. Section 40 (5) of the Crown
Proceedings Act, 1947, already provides that introduction of a new remedy of the Act shall not
limit the discretion of court to grant the mandamus.

101
Himmatlal v. State of M.P., AIR. I954 S.C. 403: (1954) S.C.R. 112.
102
Ibid.

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WRIT OF MANDAMUS

CONCLUDING REMARKS AND SUGGESTIONS

Mandamus is a judicial remedy which is in the form of an order from a superior court to any
Government agency, court or public authority to do or forbear from doing any specific act which
that body is obliged to do under the law. The writ of mandamus is issued whenever the public
authorities fail to perform the statutory duties confirmed on them. Such writ is issued to perform
the duties as provided by the state under the statute or forbear or restrain from doing any specific
act. The first case reported on the writ of mandamus was the Middletone case in 1573 wherein a
citizens franchise was restored. The writ of mandamus can be issued if the public authority
vested with power abuses the power or acts mala fide to it. In Halsburys Laws of England, it is
mentioned that,

As a general rule the order will not be granted unless the party complained of has
known what it 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.

Hence the writ of mandamus is to protect the interest of the public from the powers given to
them to affect the rights and liabilities of the people. This writ makes sure that the power or the
duties are not misused by the executive or administration and are duly fulfilled. It safeguards the
public from the misuse of authority by the administrative bodies.

Although there are certain conditions also which were discussed in the project like all the
alternative remedies should be exhausted and it should be a statutory duty and not discretionary
in nature. Hence it forms one of basic tool in the hands of the common people against the
administrative bodies if they do not fulfill the duties which by statutes they are bound to perform.

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WRIT OF MANDAMUS

BIBLIOGRAPHY

Books:

1. Durga Das Basu, V. R. Manohar, Bhagabati Prosad Banerjee, Shakeel Ahmad Khan,
Introduction to the Constitution of India, Lexis Nexis Butterworths Wadhwa Nagpur,
2008.
2. J. C. Johari, THE CONSTITUTION OF INDIA A Politico-Legal Study, Sterling
Publishers Pvt. Ltd, 2004.
3. Bakshi, P M, Constitution Of India, Universal Law Publishing, 2010.

Websites:

1. http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=deaf8251-5a4a-
4c50- b8e1-7be4929c7b29&txtsearch=Subject:%20Constitution
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df
3. http://www.bwlap.org/publication/stream?fileName=writs.pdf
4. http://www.mindserpent.com/American_History/reference/extraordinary_remedies/1892_
merrill_law_of_mandamus.pdf

5. http://www.legalservicesindia.com/article/article/analysis-of-writ-of-mandamus-
592- 1.html
6. http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-
Administrative- Law.html
7. http://www.legalera.in/blogs/entry/writ-of-mandamus--a-
brief- analysis?tmpl=component&print=1
8. http://www.leadthecompetition.in/GKT/gktopics.html
9. https://ballotpedia.org/Mandamus
10. https://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/8c9f13012b96736985256aa90
0624829/c346eab80d8f95a685257f45004a4be6!OpenDocument

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