WRIT OF MANDAMUS

INTRODUCTION 

The writ of mandamus is a judicial remedy, which is issued in the form of an order from the Supreme Court or a high court to any constitutional, statutory, or non-statutory agency. In order to do or to forbear from doing some specific act, which that agency is obliged to do or ought to refrain from doing under the law and which is in the nature of a public duty or statutory duty. 

The writ of mandamus is often considered as a residue remedy of public law. This remedy is  generally sought whenever justice has been denied to any person, the writ of mandamus can be  traced from the Norman Conquest of England. However, the writ of mandamus only in the early  part of the eighteenth century came to be frequently used in public law to compel performance of  public duties. 

CONDITIONS FOR THE GRANT OF MANDAMUS 

∙ Existence of a public or common law duty 

Until recent times the law provided that the writ of mandamus would lie only to enforce a duty  which is public in nature, so a private in nature and arising out of a contract was not enforceable  through the writ of mandamus. 

Due to this reason in the State of ITC v. State of Madras, the court refused to issue the writ of  mandamus, where the petitioners wanted the government to fulfil its obligation arising out of the  contract. 

But as the case of Gujarat State Financial Cooperation Workers v. Lotus Hotels, Private Limited,  the Supreme Court issued the rate of mandamus for specific performance of contract to advance  money. 

A public duty is regarded to be a duty which is created either by the statute, rules, or regulations  having the force of law, the constitution or by some rule of common law.

The public duty must be an absolute duty. In order to be informal through the writ of mandamus,  and an absolute duty cannot be a discretionary duty. 

In the case of Manjula Manjuri v. Director of Public Instruction, the court refused to issue the  writ of mandamus against the director of public instruction as his duty to include the petitioner’s textbook in the list of approved books as this duty was at the discretion of the authority and it was  not an absolute duty. 

However, in some cases, we do observe that there is a shift between cases where the writ of  mandamus can be applied even if performance of duty by the state is discretionary in nature. But  it is obliged to exercise discretion under law. The writ of mandamus would also lie to exercise it  in one way or the other. Writ of mandamus can also be issued if the public authority invested with  this powers abuses such discretionary power or exceeds it. The writ of mandamus thus can be  issued in order to compel performance of public duties, which may be administrative ministerial  or statutory in nature. 

The term public duty does not mean to state that the person or institution whose duty it is must be  a public official or an official. Thus, the rate of madness can be used against a company constituted  under a statute for the purpose of compelling the company to fulfil its public responsibilities. A  rate of mandibles can also be issued against the private individual in order to enforce such private  individual of his public duties. 

∙ There must be a specific demand and refusal 

In order to use the writ of mandamus, there must exist a specific demand and the denial of that  specific demands by the authorities. Thus in the case of Naubat Rai v. Union of India, the writ of  mandamus was not granted by the court as the petitioner did not apply to the authority for  reinstatement after it was illegally dismissed from the military farm. 

However, it should be noted that an expressed demand and refusal are not necessary. 

In the case of Venugopalan v. Commissioner Vijayawada Municipality, the court issued the writ of  mandamus as it observed that there existed an inferred demand and refusal from the situation in 

which the petitioner filed suit for injection, restraining the municipality from holding elections,  which was contested by the municipality. 

∙ There must be a clear right to enforce the duty 

The writ of mandamus cannot be granted in cases where the applicant does not have a right to  compel the performance of a duty cast on the authority. In the case of S.P. Manocha v. State of  Madhya Pradesh, the court refused to grant the writ of mandamus to a college in order to admit  the petitioner because the petitioner could not establish a clear rid to admission in the college. 

Similarly, in the case of Union of India v. Orient enterprises, the court did not grant the  mandamus, as the petitioner did not have a statutory right to claim the payment of interest on  delayed refund under the Customs Act 1962. 

In the case of Kalyan Singh was the state of Uttar Pradesh, the court observed right to enforce a  duty exist till the date of the petition. If such right to enforce, a duty has terminated before the  filing of the petition, the writ of mandamus cannot be issued. So the writ of mandamus can be  issued only in case of existing statutory right. 

In the case of KN Guruswami v. State of Mysore, the court observed that in cases where there is  a lack of power and abuse of that power by the administrative authority any person who is affected  by the action, though he may not have a substantive impossible right can claim the mandamus.  Therefore, default a person can enforce a public right, which does not specifically belong to any  individual thus can also be issued on petition. Also, be issued on petition of a taxpayer to restrain  a municipality from this allocation or misappropriation of public funds. 

∙ The right must be substituting on the date of the petition 

The writ of mandamus can only be granted during the existence of statutory right which means  that the writ of mandamus cannot be issued on past statutory rights or future arising statutory rights.  

In the case of Director of Settlements v. Mr Apparao, the high court upheld the unconstitutionality  of a law and directed interim payment. However, the Supreme Court in appeal, disagreed with the 

high court and upheld the validity of the law and further and provided that interim payment could not be made only until the date of determination by the director under law. The Supreme Court  observed that the high court had committed serious error in issuing the writ of mandamus for  enforcement of the said right which never subsisted on the date of issue of madness in view of the  decision of the supreme court to the contrary. 

CONCLUSION  

The writ of mandamus can be issued in all the cases where the writ of certiorari and the writ of  prohibition can be issued. So it is understood that the writ of mandamus can be assured in the case  where there is a lack of jurisdiction excess of jurisdiction abuse of jurisdiction violation of  principles of natural justice error of law apparent on the face of record. 

The writ of mandamus may be issued in cases to compel the authority to do something and also in  cases where there is a need to restrain the authority from doing something. It is observed that the  writ of mandamus is both positive and negative in nature as it can do the work of all the other  writs. So, the writ of mandamus is often regarded as a general remedy in administrative law. 

The grant of writ of mandamus like any other extraordinary remedy as it is a discretionary remedy.  

The writ of mandamus can be refused on following grounds: 

∙ On the ground of unreasonable delay in filing the petition 

∙ On the ground that there is an adequate alternative remedy 

∙ That the petition is premature 

∙ On the ground that the issuance of the writ of mandamus would be in Infructuous and futile ∙ On the ground of equitable considerations, that is where there is a misstatement or  suppression of facts in the petition. 

∙ On the ground that the writ of mandamus is to be used go against the provision of any law

A writ of mandamus can be denied it when it is found that was to be used in order to compel an  authority to pass an order in violation of a statutory provision. 

The court does not sit as a court of appeal in cases where it hears the Petition for the writ of  mandamus. With regards to the issuance of the writ of mandamus, the courts do not examine the  decision on merits, as the court cannot substitute its own wisdom for the discretion vested in the  authority unless the exercise of discretion is illegal. This rule is applicable in case of other writs as  well. 

Presently the court has developed the concept of continuous mandamus in order to supervise the  performance of duty ordered by the court.