Law and You > Administrative Law > Writ of Mandamus
There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications. In this article, we shall discuss the writ of mandamus.
Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.
Mandamus is a Latin word, which means “We Command”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so. The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions. Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, judicial. Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands activity and sets the authority in action.
A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have a real or special interest in the subject matter and must have the legal right to do so.
Mandamus cannot be issued against the following:
- a private individual or private body.
- if the duty in question is discretionary and not mandatory.
- against president or governors of the state
- against a working chief justice
- to enforce some kind of private contract.
Case Laws for Writ of Mandamus:
In E.A. Co-operative Society v. Maharastra, A.I.R. 1966 S.C. 1449 case the Court opined that the writ of mandamus can be issued when the government denies to itself a jurisdiction which it undoubtedly has under the law
In Bombay Municipality v. Advance Builders, AIR 1972 SC 793 case, Bombay Municipality had prepared a town planning scheme which had been also approved by the State Government. However, no action was taken for a long time. The Court opined that the writ of mandamus can be issued where an authority vested with a power improperly refuses to exercise it and directed the municipality to implement a planning scheme.
In State of West Bengal v. Nuruddin(1998) 8 SCC 143 case, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.
In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607 case, the court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.
In The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court held that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.
In Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694; and State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196 case, the Court held that 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.
In Birendra Kumar v. India, A.I R. 1983 Cal.273 case, when the telephone of the applicant was wrongfully disconnected in spite of his paying his dues regularly, the High Court directed the telephone authorities to restore the connection within a week.
In State of Bihar v. D N. Ganguly, A.I.R. 1958 S.C. 1018 case, mandamus was issued to restrain the government from superseding a reference made by it earlier of an industrial dispute for adjudication to a labour tribunal because under the law the government has no authority to do so. Thus mandamus can be issued to undo what has already been done in contravention of a statute, or to enforce a duty to abstain from acting unlawfully.
In The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another – (AIR 1987 SC 537) case the Court quoted from Halsbury’s Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from it about the efficacy of Mandamus: “..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in 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 that mode of redress is less convenient beneficial and effectual.”
In I.T. Commissioner v. State of Madras, A.I.R. 1954 Mad.54 case, the court held that a duty private in nature and arising out of a contract was not enforceable through the writ of mandamus and refused to issue mandamus where the petitioners wanted the government to fulfil its obligation arising out of a contract.
However, in Gujrat State Financial Corporation v. Lotus Hotel, (1983) 3 S.C.C. 379 case, 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 refuse to pay the amount.
In Manjula Manjari v. Director of Public Instruction, A.I.R. 1952 Ori 344 case, 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.
In T.K.Singh v. Extra Astt. Commissioner., A.I.R.1956 Mani 1 case Court defined ministerial duty as one where the authority has to act on the instructions of his superior.
In G.J. Fernandez v. State of Mysore A.I.R.1967 S.C.1753 case, the court held that mandamus can not 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.
In Jagjit Singh v. State of Punjab,(1978) 2 S.C.C. 196. Case, the Court held that where the administrative instruction are binding, mandamus would lie to enforce it .
In Shiv Shankar Dal Mills v. State of Haryana, (1980) 2 S.C.C. case, the Court held that mandamus would also 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.
In Naubat Rai v. Union of India, A.I.R. 1953 Punj 137. case, the court refused mandamus because the petitioner who was illegally dismissed from the military form never applied to the authority for reinstatement. Thus Before mandamus can be granted there must be a specific demand for the fulfilment of duty and there must be a specific refusal by the authority.
In Mani Subrat v. Haryana, A.I.R.1977 S.C.276. case, the Court held that 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 writ.
In Shivendra v. Nalanda College, A.I.R.1962 S.C. 1210 case, 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 a unsuccessful candidate as he has no legal right to be appointed.
In S.I. Syndicate v. India, A.I.R.1975 S.C.460. case, the Court held that 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.
In Amrit Lal v. Collector, C.E.C. Revenue, A.I.R.1975 S.C. 538 case, 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 against injustice.
In The Statesman v. Fact Finding Committee, A.I.R.1975 Cal.l4 case, the Court opined that 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?’? 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.
In Narayan Singh v. Rajasthan, A.I.R.1984 Raj.69 case, the Court held that the demand for justice 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.”
Demand and refusal can be inferred from the circumstances also. Therefore, in Venugopalan v. Commr. Vijayawada Municipality, A.I.R. 1957 A.P. 833 case, 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.
In S.P. Manocha v. State of M.P. A.I.R. 1973 M.P. 84 case 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. Thus Mandamus will not be issued unless there is, in the applicant, a right to compel the performance of some duty cast on the authority. In Madhya Pradesh v. Mandavar, A.I.R.1954 S.C.493 case, the Court opined that 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 discretion. Accordingly, mandamus could not be issued directing the government to grant the allowance to its employees.