BODIES TO WHICH MANDAMUS CAN BE ISSUED

Author(s): S. N. Jain
Source: Journal of the Indian Law Institute , JANUARY-MARCH 1973, Vol. 15, No. 1
(JANUARY-MARCH 1973), pp. 109-115
Published by: Indian Law Institute

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 NOTES AND COMMENTS

BODIES TO WHICH MANDAMUS CAN BE ISSUED

I. Introduction

IT IS trite law that mandamus lies to secure the performance of public duty
imposed by law. In England because of historical reasons mandamus does
not lie to the Crown or any servant of the Crown acting in his capacity of
servant. The reason has been that it would be incongruous for the Crown
to command itself.1 There it is issued to all local authorities and also to
servants of the Crown who directly derive their powers from the statute.
What are the authorities which could be said to discharge public
duties? In a laissez-faire era, when there was not so much government regu-
lation the answer may have been simple that all government departments were
discharging public duties. But with the governmental regulation of private
activity and the statutes imposing obligations on individuals (like selling a
commodity at fixed price), and cropping up of various kinds of statutory
bodies, this simplicity has eluded. How far can statutory authorities and
non-governmental bodies and individuals be regarded as public authorities ?
Can it be said that because certain obligations have been imposed on the
individuals by statute they are performing public duties?
In India there has been absolutely no doubt that mandamus goes to all
government departments and also local authorities like municipalities.8
But what about the following bodies? s
1. Universities and other statutory bodies.
2. Incorporated bodies like cooperative societies and joint stock
companies.
3. Government companies.
4. Other private bodies on whom duties are imposed by statute.
The law is in a state of confusion. The High Courts have taken dia-
metrically opposing views. For instance, a few High Courts on the one
hand have thought that the writ could go even to a government company,
but a few others have held on the other hand that the writ may not be issued
to a statutory corporation like the Life Insurance Corporation. The
position in relation to the above bodies is examined seriatim .

II. Statutory bodies

Without any dispute or controversy the Supreme Court has been

issuing mandamus to statutory bodies. Thus in Mctfatlal v. Divisional

1. See de Smith, Judicial Review of Administrative Action 574 (1968).

2. For a case in which mandamus was issued to a municipality, see Municipal
Corporation of Delhi v. Kishan Dass , A.I.R. 1969 S.C. 386.

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110 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

Controller , State Road Transport Corporation ,3 the court issued mandam

to the State Road Transport Corporation for wrongful dismissal of a
employee. Similarly, the writ was issued against the Life Insurance Corpo
ration in Life Insurance Corporation v. Sunil Kumdr .4 In Akshaibar Lai
v. Vice-Chancellor , B.H. U.,5 the writ was issued to a university. In Calcut
Dock Labour Board v. Jaffar Imam ,6 it was issued against the boar
In Board of High School v. Ghanshyam ,7 it was issued to the board concerned
In spite of the above decisions of the Supreme Court a few High Courts
would issue the writ only to certain types of bodies. In Ramaiah v. Stat
Bank of India* the Madras High Court stated that a body established sole
for purposes of gain might not be regarded as a public authority, but inc
dental profit or gain might not negative that character. However, it regarded
the State Bank of India to be subject to the writ jurisdiction as it was charged
with the public duties under the State Bank of India Act and that profit
making was not its primary aim but only incidental to the nature of t
business transacted by the bank. Similarly, the court would issue writ to the
Life Insurance Corporation,9 the Warehousing Corporation,10 (establish
under the Warehousing Corporations Act, 1962) and the Industrial Financ
Corporation (established under the Industrial Finance Corporation Ac
1948).10a The Bombay High Court, however, took the position that
the L.I.C. was not amenable to the writ jurisdiction of the High Court.11
dismissed the Sunil Kumar case by saying that in that case "the questiona
to whether a writ should be issued to a business house even if a creature of
a statute was not canvassed." In its opinion: "The very fundamental
conception of an authority is that there is in it power to command and
compel its obedience either by enforcing the same or punishing the same."
This was absent, in its opinion, in the case of the L.I.C.
The test of commercial function propounded by the above High Court
decisions doesnot seem to be valid in the view of the Supreme Court judgment
in Rajasthan Electricity Board v. Mohan Lai.12 In this case it was held that the
3. A.I.R. 1966 S.C. 1364.
4. A.I.R. 1964 S.C. 847.
5. A.I.R. 1961 S.C. 619. In a few High Court decisions - University o
v. Shantha Bai , A.I.R. 1954 Mad. 67; Kishan Gopal v. Punjab University , A.I.R
34 - it has been held that a university is not an authority under art. 12 of the C
for purposes of availability of the fundamental rights against it. These decisi
stand overruled by the Supreme Court judgment in Rajasthan Electricity Board v
A.I.R. 1967 S.C. 1857. Further, even if a body is not an authority under art.
not mean that it is not amenable to the writ jurisdiction of the High Courts.
6. A.I.R. 1966 S.C. 282.
7. A.I.R. 1962 S.C. 1110.
8. A.I.R. 1964 Mad. 335.
9. K.P.C. Menon v. Life Insurance Corporation , A.I.R. 1960 Mad. 333.
10. S.V. Raman v. M.S.W. Corporation , A.I.R. 1971 Mad. 431.
10a. Chelliah v. Industrial Finance Corporation , (1972) 1 L.L.J. 510.
11. Pramodrai v. L.I.Ç., A.I.R. 1969 Bom. 337; Vatakkeveedy Chami v. L.I.C.,
1969, Service L.R. 721 (Bopibay). These cases have, however, been overruled by the
court in A.C. E^ Union v. G.B. Bhirade , A.I.R, '91' Bom. 288.
12. A.I.R. 1967 S.Ç, 1857,

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1973] BODIES TO WHICH MANDAMUS CAN BE ISSUED 111

Rajasthan Electricity Board, a statutory body, was an autho

the meaning of article 12 of the Constitution, against whom
rights were available to an individual. It was, therefore, am
writ jurisdiction of the Supreme Court. It was emphasised t
was a statutory body on whom powers were conferred by law an
material that some of these powers might be for the purpose of
commercial activities. Unfortunately there are such stat
decision as - the "dictionary meaning of the word 'authority'
enough to include all bodies created by a statute on which p
ferred to carry out governmental or quasi-governmental f
there "are provisions in the Electric Supply Act which clearly sh
powers conferred on the Board include powers to give direct
obedience of which is punishable as a criminal offence." This
doubts that all statutory bodies would not be subject to the writ
but only such bodies as fulfil those two characteristics.
It is submitted that a statutory body is perforce a public
When the legislature is invoking its special procedure to cre
special powers and privileges on it, it is doing so because of subs
interest involved in its creation. It cannot but be regard
authority. All statutory bodies have special privileges otherw
be left to the ordinary laws for their incorporation and cr
statutory body enjoys special powers and privileges not enjo
bodies or individuals, in that sense it discharges quasi-governmen
and powers. Even in the case of the L.I.C. it has been given in
privilege of carrying on the life insurance business by section 30
Further, by section 14, it has been given the power to modif
life insurance in certain cases. The Bombay High Court t
seem to be correct when it says that it has no power to comman

III. Bodies incorporated by individuals under a statute

Mandamus lies to enforce duty of a public nature and n
private dispute. How far can private bodies like a joint-stoc
cooperative society or a registered body can be said to dischar
public nature? The question has assumed practical importan
the various industrial and other laws imposing several liabilit
restrictions on them. Should mandamus lie for enforcement o
In Corporation of Nagpur v. N.E.L. &P. Co.,13 the Bombay
issued the writ against a private company, a public utility , for fa
out its duties under the statutes on the ground that the "s
devolving upon a public utility concern is a public duty. Ther
be said that a public utility concern like the respondent is in the
as a private party." A public utility concern enjoys special pow
leges and therefore it is appropriate to issue a writ to it, and
is to be distinguished from an ordinary joint-stock compan

13. AfI.R. 1958 Bom. 498.

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112 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

dicta in a few other cases to the effect that mandamus will lie to a com
if it is a public utility company or if duties of a public nature have
imposed upon it by a statute.14
However in Synthetics and Chemicals Ltd v. G.C. Kumar ,15 the All
bad High Court issued mandamus to an ordinary joint-stock company
restore the services of a Labour Welfare Officer whose service conditions
were regulated by the Factories Act and the rules made thereunder. This is
going a little too far.
There is a conflict of opinion amongst the various High Courts whether
a writ can lie against a cooperative society. The Madhya Pradesh High
Court in Dukhoo Ram v. Cooperative Agricultural Association 16 issued a
writ to a cooperative society quashing its order suspending an employee,
on the ground that the bye-laws conferred no such power on it. In this
case the court treated the bye-laws as having statutory force; but this view
has now been overruled by the Supreme Court in Cooperative Bank v.
Industrial Tribunal , Hyderabad11 as will be seen below. The Calcutta High
Court also issued a writ to a cooperative society treating it as a public autho-
rity on account of the fact that the state government and the Registrar of the
Cooperative Societies exercised a good deal of control over such bodies.18
The Madras High Court has, however, consistently refused to issue a writ to a
cooperative society.19
The general view is that a writ cannot go to a society registered under the
Societies Registration Act, 1860 as such a registration does not make it a
statutory body ;20 but the Delhi High Court in Mohinder Singh v. Union of
India21 held that such a body was subject to the court's writ jurisdiction.
The test of government control propounded by some of the above
decisions ought not to be determinative whether a bGdy is a public authority
or not. To be a public authority, it is essential that there should be some
special statute conferring special powers and privileges on it. A body like a
cooperative society, or a joint stock company, or any other incorporated
body should not be treated as a public body in the absence of such a condi-
tion. This is substantiated by a well reasoned judgment of the Delhi High
Court in Amir-Jamia v. Desharath Raj.22 Jamia Millia Islamia is a society
registered under the Societies Registration Act. It is an educational
institution and has been declared to be a "deemed" university under section 3

14. Kartiçk Chandra v. W. B.S.I. Corporation, A.I.R. 1967 Cal. 231; Sunil Kumar
v. Mining and Allied Machinery Corp., A.I.R. 1968 Cal. 322.
15. (1967) II I.L.R. All. 325.
16. A.I.R. 1961 M.P. 289.
17. A.I.R. 1970 S.C. 245.
18. Madan Mohan v. West Bengal, A.I.R. 1966 Cal. 23.
19. C. Lakshmiah v. S.P.T. Coop., Society, A.I.R. 1962 Mad. 169 ; K. Ramraj
v. S. Cooperative Spinning Mills Ltd., A.I.R. 1971 Mad. 315.
20. Gulabchand v. Hitkarini Sabha, A.I.R, 1963 M.P. 270; Baroda Kanta v.
West Bengal, A.I.R. 1963 Cal. 161.
21. A.I.R. 1969 Delhi 170.

22. (1969) I.L.R. Delhi 202.

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1973] BODIES TO WHICH MANDAMUS CAN BE ISSUED 113

of the University Grants Commission Act, 1956. The result

ration has been that the Act became applicable to it and parti
to have the right to confer degrees. It was held by the Delh
that the institution was a public authority to which manda
issued. This is on the ground that education of people is prim
tion of the state (as every school and college is entitled to grants
the state), that the very concept of a university is universal
university cannot be a private institution, and that power to con
is a statutory power of governmental nature as under t
universities can confer degrees.
The Corporation of Nagpur and Amir-Jamid cases depict
approach. It is only when special powers and privilges, n
enjoyed by individuals, are conferred by statute on a body that
character or status of public authority. The issue of the wr
confined only to such cases. Too broad an application of the w
bodies or individuals in the modern era of vast state regulat
activity will rob the writ of its essential character as a public law

IV. Government companies

A government company is a company incorporated under

Companies Act, 1956 in which the government at least hold
It is not a statutory body. The bulk of its capital comes from
ment, its shareholders are usually the President of India and
official and the government exercises a good deal of contro
nominating its own directors and other ways. There is a conf
amongst the High Courts whether a writ could be issued to
company. Some courts have taken the view that no writ lies
have held otherwise. In jR. Lakshmi v. Neyveli Lignite Corp
the Madras High Court held that the Neyveli Lignite Corpora
ment company registered under the Companies Act, was not
writ jurisdiction as the corporation exercised no statutory f
was entirely separate from the government on the well estab
that a company has a separate personality from its sharehold
the Andhra Pradesh High Court refused to issue a writ to a
company in In re V . S . Häriharan 24.
On the other hand the Calcutta and Patna High Courts h
contrary view. In Abani Bhusan v. Hindustan Cables Ltd .,2
High Court issued a writ to a government company for
standing orders made under the Industrial Employment (Sta
Act, 1946 which in the opinion of the High Court, had a st
Similarly, it was held by the Patna High Court in Borhän Ku

23. A.I.R. 1966 Mad. 399.

24. A.I.R. 1960 A. P. 518.
25. A.I.R. 1968 Cal. 124,

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114 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

Oil Refineries Ltd.?* that a writ could lie to a government company w

has statutory duties to perform (under industrial laws). A contrary view w
taken by the Delhi High Court in N. S. C. E. Union v. National Seeds C
ration .27
Incidentally it may be pointed out that the Calcutta High Court's view
that standing orders made by an employer under the Industrial Employment
(Standing Orders) Act, 1946 have statutory force is not correct. In Coope-
rative Bank v. Industrial Tribunal , Hyderabad ,28 the Supreme Court has held
that the bye-laws made by a cooperative society in pursuance of statutory
provisions cannot be regarded to have the force of law. These bye-laws are
similar in nature to the articles of association of a company which do not
have the force of law.
Coming back to the question of issue of mandamus to government
companies, the Supreme Court, however, in Praga Tools Corporation v. C.V.
Imanual 29 refused to issue writ of mandamus to a government company in
which the government held 88% shares and private individuals only 12%
shares. The company being non-statutory, there was neither statutory nor
a public duty imposed on it by statute in respect of which enforcement could
be claimed by means of mandamus. While laying down this proposition
the court went on to say that it is not necessary for the issue of mandamus that
the person or authority on whom a statutory duty was imposed is a public
official or an official body and that

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
authorising their undertakings.30
The statement means that the writ may be issued not only to a statutory body
but even to a company or a society if it has been placed under a statutory
duty. The implications of the statement are not clear. Poes it mean that a
writ will lie for the enforcement of ordinary laws like industrial laws or
regulatory laws? Or does it mean that a writ will be issued to enforce such
special laws which give special powers and privileges? As seen above, the
Patna and the Calcutta High Courts would issue the writ for enforcing ordi-
nary laws. This view does not seem to be correct. As stated in the preced-
ing section, it is only when special powers and privileges are given to a body
by a statute that it acquires the character of a public authority.

V. Unincorporated bodies and individuals

On a parity of reasoning stated in the previous sections, no writ can be

26. A.I.R. 1971 Pat. 174.

27. A.I.R. 1972 Delhi 292.
28. Supra note 17.
29. A.I.R. 1969 S.C. 1306,
30. Id. at 1309-10.

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 1973] BODIES TO WHICH MANDAMUS CAN BE ISSUED 115

issued to unincorporated private bodies and individuals for the enforce

of ordinary laws. However, if in their case also any body or individ
enjoys special powers and privileges under a statute then a writ may be iss
Here a question has arisen whether a college affiliated to a university has
same status as the university or it is to be regarded as a private body
few cases in the past, the Supreme Court has issued the writ to affili
colleges but in such cases the matter was not argued before it.31
Supreme Court has now laid down in Vidya Ram Misra v. S . J. N. Colle
that a private affiliated college is not amenable to the writ jurisdiction of
High Court as it is not a statutory body.
There are several kinds of colleges. Some are private affiliate
colleges, some university colleges, and some government colleges (affil
to universities). It creates an anomaly that university and governme
colleges should be subject to the writ jurisdiction of the High Court bu
affiliated colleges. Affiliated colleges have the same privileges and disc
the same functions as the other two categories. Further, they receive
stantial grants-in-aid from the government, function only on being recog
by the university and there is considerable university control over
colleges. Because of all these factors, it may be that the writ jurisdicti
the High Court should extend to them.
S. N. Jain *

31. For instance, Prabhakar Ratnkrishan Jodhx . A. L. Pande. (1965) 2. S.C

713.
32. A.I.R. 1972 S.C. 1450.
* LL.M., S. J. D. (Northwestern)., Director, The Indian Law Institute^

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