Writ of Mandamus, when does the High Court issue it?

The Constitution of India under Articles 32 and 226 gives power to the Supreme Court and High Courts respectively to issue writs in cases of breach of Fundamental Rights of any citizen by the State. Such writs prevent arbitrariness and unchecked use of power.

According to the Black’s law dictionary[1] “A Writ issued by a court to compel performance of a particular act by lower court or governmental officer or body, to correct a prior action or failure to act.” In other words, it’s a writ of command that compels someone to perform a statutory duty that he/she is obligated to do.

The High Court has been conferred power by the Article 226 of the Constitution for the enforcement of fundamental rights under Part III of the Constitution. Under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted[2]:

• without jurisdiction, by assuming jurisdiction where there exists none, or
• in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or
• acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

Requirement for issuance of Writ of Mandamus:

• The petitioner has a legal right
• The legal right of the person/petitioner has been infringed
• The infringement of the petitioner’s right(s) has been infringed due to non-performance of statuory duty by the public authority
• The petitioner has demanded the performance of legal duty by the authority and the authority refused to act.
• There has been no other effective alternate legal remedy.

A writ of mandamus is generally not issued in the following situations:

• Agasint a private individual. Thought the Supreme Court has observed that thee mandamus might under certain circumstances lie against a private individual if it established that he has colluded with a public authority.[3]
• If the duty in question is discretionary and not mandatory
• Against the president or governors
• To enforce a private contract
• Against a chief justice

Noteworthy Judgments on Writ of Mandamus

• Comptroller And Auditor General … vs K.S. Jagannathan & Anr: Supreme Court held that there is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

• Ramakrishna Mission and Ors. Vs. Kago Kunya and Ors.[4]: First Respondent joined Ramakrishna Mission Hospital at Itanagar as a General Duty Worker. He was later regularized in 1980, and made permanent in 1984 and then in 2005 he was promoted. He instituted a writ under Article 226 seeking writ of mandamus to allow him to continue in service until he completed 35 years of service counting from 1982 when he was substantively appointed as Nursing Aid. The Appellants raised preliminary objection to maintainability of petition on the ground that neither Ramakrishna Mission nor its hospital was ‘State’ within meaning of Article 12 and they were not amenable to writ jurisdiction under Article 226. Ld. Single judge allowed the petition and rejected the averment made by appellants. The writ appeal filed by them also failed before a division bench of the High Court. The Supreme Court then allowed the appeal and held that in running the hospital, the Ramakrishna Mission did not discharge public function It only received grant which did not indicate governmental control in management. It did not make an entity or authority within meaning of Article 226 and hence did not fall in writ jurisdiction because the contract of service fell within the ambit of purely private contract against which writ jurisdiction could not lie.

• Binny Limited v. Sadasivan[5]: The apex Court in this case observed that “A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.”

• Mani Subrat Jain Etc vs State Of Haryana And Ors[6]: The Haryana High Court invited applications and            interviewed candidates for filling up vacancies in the quota of direct recruits from the bar, in the Haryana Superior Judicial Service. The names of the appellants were recommended to the State Government who rejected them and asked the High Court to invite application again. Accepting the position, the High Court issued the advertisements. The appellants           filed petitions against the order rejecting their names and asked for mandamus for appointment. The same were dismissed by the High Court on the ground that the appellants had no locus standi. Dismissing the appeals, the Court held: There must be a judicially enforceable right as well as a 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 legal duty to do something or to abstain from doing something.

• Saraswati Industrial Syndicate vs Union Of India[7]: 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-recognized 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. Halsbury’s Taws of England (3rd edition vol. 13 p. 106): “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.”

“Mandamus is a high prerogative writ of a most extensive remedial nature. In form, it is a command issued by High Courts 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 the performance of public duties. It enforces, however, some private rights when they are withheld by public officers.”[8]

Hence, a Writ of Mandamus has been granted as a measure to check the power of the executive. The Supreme Court and High Courts through their orders strive towards ensuring that the writs act as a tool of judicial constraint to actions of the authorities that are unfair, unreasonable and against the interest of the general public.

Grounds for Writ of Mandamus:

1. Becasue, the petitioner has right to …. under the …Act and in pursunace of same the petitioner filed the application/ representation/ procceeding before the …. as per section / rule of the ….
2. Becasue, the Respodent is under statuory obligation to take action and dipose off the application/ representation/ procceeding filed by the petitioner.

EXAMPLES WHEN A WRIT PETITION CAN BE FILED WITH PRAYER FOR WRIT OF MANDAMUS

1. When Development Authority is sitting idle on any file since some time and not taking action as per law despite empowered by law to decide the matter.
2. When Development Authority is not sanctioning the map.
3. When government hospital is not treating,
4. When Mandi parishad not allotting shop
5. When there is delay in disposing any valid representation which is to be decided by the concerned authority, etc.
6. Where gun licence is pending considertation sanction by the DM
7. Where any application/ representation/ procceeding are pending before any authority, department or person and such authority or person has statuory obkligation to dispose such application/ representation/ procceeding but same is not being disposed.