DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

LUCKNOW

2019

ADMINISTRATIVE LAW

FINAL DRAFT

“WRIT OF MANDAMUS AND JUDICIARY:AN ANALYTICAL STUDY”

UNDER THE SUPERVISION OF SUBMITTED BY:

DR. RAJNEESH KUMAR YADAV MOHIT MISHRA

ASSISTANT PROFESSOR (LAW) ROLL NO. – 83
SEMESTER- 5
TABLE OF CONTENTS

 Acknowledgement..................................................................................3

 Introduction............................................................................................4

 What is Mandamus?..............................................................................5

 Position in India....................................................................................6

 Relation to the Judiciary.......................................................................8

 Conclusion..........................................................................................10

 Bibliography.....................................................................................11

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ACKNOWLEDGEMENT

First of all, I would to thank my teacher of the Subject “Administrative Law”, Dr. Rajneesh
Kumar Yadav who helped me and my project partner in suggesting the topic of the project. I
would also like to thank my parents, friends and others who helped me immensely at every
step and gave every possible bit of help that I needed in preparing the project and making it
look presentable in a good way. I would also like to thank the library staff of Dr. RMLNLU
who provided me with books that I needed in making and preparing the project and other
pieces of information and help that was required. At last I would like to sincerely thank God
who gave me the much needed strength and power to go ahead with the project and make it in
a presentable way.

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INTRODUCTION

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the
Constitution of India. And the judiciary is dynamically carving the principles and exceptions,
while making the judicial review of administrative actions.

The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being derogatory.

The Courts have constantly tried to protect the liberties of the people and assume powers
under the Constitution for judicial review of administrative actions. The discretionary powers
have to be curbed, if they are misused or abused. The socio-politic Institution need not cry, if
the courts do justice and perform the substantial role. That is the essence of justice. It is
submitted, the trend is to read the social justice and to translate in reality. The welfare State
has to discharge its duty fairly without any arbitrary and discriminatory treatment to the
people in the country. If such powers come to the notice of the Courts, the courts have raised
the arms consistently with the rule of law.

The order of mandamus is of a most extensive remedial nature, and is in form, a command
issuing from the High Court of Justice, directed to any person, corporation or inferior
tribunal, requiring him or them to do some particular thing therein specified which appertains
to his or their office and is in nature of a public duty. 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 favour of the applicant,
unless some just and useful purpose may be answered by the writ. A writ of mandamus or
remedy is preeminently a public law remedy and is not generally available against private
wrongs.

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WHAT IS MANDAMUS?

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme
Court was established at Calcutta. The charter also established other High courts and these
High Courts had analogous power to issue writs as successor to the Supreme Court. The other
courts which were established subsequently did not enjoy this power. The writ jurisdiction of
these courts was limited to their original civil jurisdiction which they enjoyed under section
45 of the Specific Relief Act, 1877.

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 citizen’s 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
Halsbury’s 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.”1

Writ of mandamus is a writ of most extensive remedial nature and is in form, a command
issuing from the High Court 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

1
Halsbury’s Laws of England, 4th Edition, Vol. I Para 89

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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.

POSITION IN INDIA

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.

The Supreme Court has the power to issue writs under the Constitution of India, art. 32. 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 Ambedkar's 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 of it’. 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. 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.

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:

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(i) The applicant must have a legal right to the performance of a legal duty. It will not issue
where to do or not to do an act is left to the discretion of the authority. It was refused where
the legal duty arose from an agreement which was in dispute. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution or of a statute or of the common
law.

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V.
Imanual2, and Sohanlal v. Union of India3, the 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. Even
though mandamus does not lie to enforce a contract inter partes, it will lie where the
petitioner's contractual right with a third party is interfered with by the State. 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
& Ramanv. State of Madras4; State of Assam v. Ajit Kumar5.

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 be issued to compel an income-tax
officer to carry out the instructions issued by income-tax appellate tribunal exercising its
appellate power. Again it can be issued to a municipality to discharge its statutory duty.

RELATION TO JUDICIARY

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 opponent5.

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

2
A.l.R. 1969 S.C. 1306
3
A.I.R. 1957 S.C. 529
4
A.l.R. 1959 S.C. 694
5
A.l.R. 1965 S.C. 1196

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 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 Constitution or of a statute or some rule of common law6. A
public duty need not, however be always statutory. 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 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 remedy7.

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 functions8.

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.

The writ of mandamus is ordered when the statutory authorities who entrusted with the duties
fail to discharge its obligatory duty. It may be applied when the government authorities
vested with absolute powers fail to perform their administrative and statutory duties.
In Ratlam Municipal Council v. Vardichand9, on account of the public nuisance created in the
area by the corporation in not maintaining the drainage system and the dirty water stinking
had clogged around which obviously created nuisance at the hands of municipality for not
discharging the duties under the act. As a result, the residents of Ratlam municipality moved
the Sub-divisional magistrate under section 133 of Code of Criminal Procedure, 1973 for
abatement of nuisance and the court issued the directions that, “Judicial discretion when facts
for its exercise are present has a mandatory import. Therefore, when the Sub-Divisional
Magistrate, Ratlam, has before him information and evidence which disclose the presence of
public nuisance, considers it lawful to remove such obstruction. This is a public duty implicit
6
Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209
7
Robert L. Cutting, Re, 94 US 14
8
Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209
9
AIR 1980 SC 1983

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in the public power to be exercised on behalf of the public and is pursuant to public
proceeding.”

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

No mandamus will lie against an officer or 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. Mandamus will not issue to a legislature to forbid it from passing legislation
repugnant to the fundamental rights10. Mandamus was issued to a municipality to forbid
collection of a tax ultra vires the Municipalities Act, to a University directing it to forbear
from giving effect to an order made in violation of its own rules11.

10
Choteylal v. State of U.P., A.l.R. 1951 All 228.
11
Tapendra Nath Roy v. University of Calcutta, A.l.R. 1954 Cal. 141

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CONCLUSION

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 interest, or
whose rights are directly and substantially invaded and are in imminent danger of being
invaded12.

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.

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review
of administrative action is undoubtedly discretionary and yet unbounded in its limits. The
discretion however should be exercised on sound legal principles. In this respect it is
important to emphasis that the absence of arbitrary power is the first essential of the rule of
law upon which the whole constitution system is based. In a system governed by rule of law
when discretion is conferred upon the executive authorities it must be based on clearly defied
limits. Thus the rule of law from this point of view means that the discretion or the decision
must be based on some principles and rules. In general, the decision should be predictable
and citizens should know where he is. If a decision is taken not on the basis of any principle
or rules, then such decision is arbitrary and is taken not in accordance with the rule of law.

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 fulfil the duties which by statutes they are
bound to perform.

BIBLIOGRAPHY

12
State of Kerala v. Lakshmikutty, AIR 1987 SC 331

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 http://www.manupatrafast.com/
 http://www.scconline.com/
 ipc498a.wordpress.com
 http://lex-warrier.in/
 http://www.legalserviceindia.com/
 www.thewire.in

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