Electronic copy available at: http://ssrn.com/abstract=2581630

Writ of Mandamus*

Introduction: Writ of Mandamus („We Command‟) is of English origin. In past, the King of

England as the „authoritarian autocrat‟ of the administrative set-up, used to issue mandamus

to his subjects, commanding them to fulfil the public duty asked of them, many times during

the course of the day.i To trace the origin of issuance of mandamus, as the prerogative of the

royal court of England is an uphill task, much because it was never considered as an absolute

judicial act, but rather an act of quasi-judicial nature. Mandamus was used by the King of

England for supervising (and superintending) the police (and other public authorities of the

same genre) for preserving social peace and public order at all State levels.ii Since its origin,

mandamus has been issued to compel the performance of a wide range of public/quasi-public

duties, performance of which had been unlawfully refused, for example in cases pertaining to,

restoration of office; holding of elections; and prevention of dissolution of local municipal

bodies and authorities.

Thus, writ in the nature of mandamus is defined as the royal command issued in the name of

the Crown, from the Court of the King‟s Bench, to the subordinate court, an inferior tribunal,

a corporation, board or any other person requiring it (or him) to perform a public duty. Such a

duty, may be imposed by the Constitution (the Suprema Lex), a statute or generally by the

common law.iii

Mandamus is a Latin word which literally means a „command‟ or an „order‟.

Thus, a writ of mandamus commands or orders or directs a person to whom it is addressed to

perform the public duty, which appertains to his office. Where any court, tribunal, authority,

board, corporation or any other individual charged with performance of a public duty fails to

discharge that duty, mandamus lies to compel him to discharge that duty or perform the

function as required by the suprema lex, statute or common law.iv

So far as India is

concerned, the writ of mandamus follows the English pattern. In the pre-independent India,

the three Supreme Courts by the respective charters derived the power to issue a writ of

mandamus within the Presidency towns. The earliest reported case in India, concerning the

writ of mandamus is that of, R v. Warren Hastingsv. In this case, mandamus was sought

against the Supreme Council of the Governor-General; mandamus, however, was not issued

and was accordingly refused. Another reported case, concerning the writ of mandamus, in the

pre-independent India was that of Tan Bug Taim v. Collector of Bombayvi

. In this case, an

order requisitioning immovable property under the Defence of India Rules was held ultra-

vires and mandamus was issued. It was argued by the Government that, there was no „law‟

under which the Collector could be asked to forbear from requisitioning and Section 45 of the

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Specific Relief Act, 1877 could not apply. The Court held, that „law‟ included the Royal

Charter, statute and the common law, and that Section 299(1) of the Government of India

Act, 1935 related to acquisition. That was enough to attract Section 45. It was in fact

amplified in another case (Commissioner of Police, Bombay v. Gordhandas Bhanji; AIR

1952 SC 16), wherein it was held that the words „any law‟ were wide enough to embrace all

kinds of laws, statutory or otherwise. After the commencement of the Constitution of India,

the Supreme Court of India is empowered, by virtue of Article 32 of the Constitution to issue

a writ of mandamus for the enforcement of the fundamental rights, while every High Court

has power to issue a writ in the nature of mandamus under Article 226 of the Constitution for

the enforcement of fundamental rights and also for „any other purpose‟ throughout the

territories in relation to which it exercises jurisdiction.vii

Courts in India have always maintained that, a writ of mandamus is not a writ of right and is

not granted as a matter of course (ex debito justitiae). Its grant (or refusal) is at the discretion

of the court. Courts are obliged to refuse mandamus, unless, it is shown that there is a clear

legal right of the applicant or statutory duty of the respondent and there is no alternative

remedy available to the applicant.viii

In the case of, Praga Tools Corporation v. C.A. Imanualix

, the Supreme Court of India

observed that, an order of mandamus is, in form, a command directed to a person, corporation

or inferior tribunal requiring him (or them) to do a particular thing therein specified, which

appertains to his (or their) office and is in the nature of a public duty. It is, however, not

necessary that the person or body on whom such public duty is imposed need to be a public

official or statutory authority.

Writ of mandamus is available against any public authority including administrative and local

bodies, and it would lie against any person who under a duty imposed by a statute or by the

common law is obliged (and is duty-bound) to do a particular act. In order to obtain a writ or

an order (or direction) in the nature of mandamus, the applicant has to satisfy (the court of

law) that he has a legal right towards the performance of a legal duty by the party (or person)

against whom mandamus is sought and such right must be subsisting on the date of the

petition.x

In the case of Union of India v. S.B. Vohraxi

, the Supreme Court of India held as follows: “A

writ of mandamus may be issued in favour of a person who establishes a legal right in

himself. It may be issued against a person who has a legal duty to perform but has failed or

has neglected to do so. Such a legal duty emanates by operation of law. The writ of

mandamus is most extensive in regards to its remedial nature. The object of mandamus is to

prevent disorder emanating from failure of justice and is required to be granted in all cases

where law has established no specific remedy”.

The broad principles, in regards to the writ of mandamus, which can be culled out are as

follows: (a) The applicant for an order of mandamus must show that there resides in him a

legal right, demanding the performance of a legal duty, by the party against whom mandamus

is soughtxii

; (b) Writ of mandamus can be issued to any person, authority, board, corporation

or tribunal, requiring it to do that which a statute demands of it. Legal duty or obligation,

fulfilment which mandamus demands, must be the one culling out of the Constitution, a

statute or the common lawxiii

; (c) The application for mandamus should be made in good

faith; not with any oblique motive or ulterior purposexiv

; (d) Mandamus will be refused, if

there is an alternate remedy availablexv

; (e) Prior to acceding to the demand for issuance of

mandamus, the court must be satisfied that, a genuine demand for performance of the public

duty was made by the petitioner and the same was refused (or was not complied with) by the

respondent.xvi

There are, no doubt, exceptions to the demand-refusal rule, both in England as

well as in India.xvii

Nature and Scope: Almost a hundred and fifty years ago, Martin, B., in Mayor of Rochester

v. Reginaxviii

said: “But, were there no authority upon the subject, we should be prepared

upon to affirm the judgment of the Court of Queen’s Bench. That court has power, by the

prerogative writ of mandamus, to amend all errors which tend to oppress the subject

(resulting in misgovernment) and ought to be used, when the law has provided no specific

remedy, and justice and good government require that there ought to be one for the execution

of the common law or the provisions of a statute. Instead of being astute to discover reasons

for not applying this great constitutional remedy for error and misgovernment, we think it

our duty to be vigilant to apply it in every case to which, by any reasonable construction, it

can be made applicable.”

Mandamus takes the shape of a command to an inferior court, governmental (semi-

governmental) body, public officer, executive (or administrative) body for doing something,

or for abstaining from doing something, that which is in the nature of a public duty. The

doing or forbearance of that which is sought, is to be enforced as a „must‟, under any law for

time being in force and it should be clearly incumbent on the officer or authority concerned,

in its public character. It does not lie to enforce a private right, neither to enforce a duty of a

purely ministerial nature (which the officer is bound to perform under the orders of a

competent authority), nor in regards to matters which are purely of discretionary nature.

Interference by the court is warranted when an executive authority is not exercising its power

bona fide for the purposes contemplated by law or is influenced by extraneous (and

irrelevant) consideration or is acting arbitrarily.xix

Professor Wade, states, “The prerogative remedy of mandamus has long provided the normal

means of enforcing the performance of public duties by public authorities of all kinds. Like

the other prerogative remedies, it is normally granted on the application of a private litigant,

though it may equally well be used by one public authority against another. The commonest

employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public

authority fails to do its duty. Certiorari and prohibition deal with wrongful action, mandamus

deals with wrongful inaction.”xx

In the case of, State of West Bengal v. Nuruddinxxi

, the Supreme Court of India held-

Mandamus compels the performance of a duty resting on the person to whom it is issued. It is

in substance, a personal action which rests on the assumed fact that the respondent has

neglected (or has refused) to perform his duty, the performance of which is the right of the

applicant. A court of law can step in, either in case of failure to exercise power by the

authority or in case of illegal, unlawful or improper exercise of power. The court, however,

cannot take a decision which in law is required to be taken by the statutory authority.

In another case, Comptroller & Auditor General of India v. K.S. Jagannathanxxii

, the

Supreme Court of India held that, the High Courts of India exercising their jurisdiction under

Article 226 have the power to issue a writ in the nature of mandamus, to pass orders (and to

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 to

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 parties concerned, the court may itself pass an order which the

government (or the public authority) should have passed (or given) had it properly and

lawfully exercised its discretion.

Though, the main function of mandamus is to compel action. Writ of mandamus neither

creates nor confers power to act; for it only commands the exercise of power already existing,

when it is the duty of the person or authority proceeded against- to act. Although mandamus

may require performance of public duty, its command is never to act in a particular manner.

It is not possible to lay down the standard- as to in what situations a writ of mandamus will

be issued and in what situations it should not be issued. It depends on the nature of the right

sought to be protected; duty sought to be enforced; scheme of the statute; injury likely to be

caused; consequences likely to ensue; consequent effect of the exercise (or non-exercise) of

the power and other similar considerations.xxiii

Object: Primary purpose of a writ of mandamus is to protect an established right and to

enforce a corresponding imperative duty imposed (or created) by law. Mandamus is designed

to promote justice, it does not lie to create or establish a legal right but to efficaciously

enforce one that already has been established.xxiv

Mandamus is invoked to remedy rights that

lack assistance or wrongs that need resistance. Mandamus, denominated as, a hard and fast

writ, a cast-iron writ, the right arm of the court, the exponent of judicial power and an

inflexible peremptory command to do a particular thing, is reserved for extra-ordinary

emergencies, being a supplementary means of obtaining substantial justice where there is a

clear legal right and no other adequate legal remedy.xxv

Mandamus and the Other Writs: Mandamus is used where the authority refuses to exercise

jurisdiction; prohibition and certiorari are issued to prevent subordinate courts (and inferior

tribunals) from usurping jurisdiction or from acting in excess to their jurisdiction. Hence,

while mandamus is available against public authority; prohibition and certiorari are available

against subordinate courts and inferior tribunals.xxvi

While mandamus is a command to a person or a body under a legal duty to do something;

quo-warranto is a proceeding by which a person is asked to state by what authority he

supports his claim to a particular office, liberty or franchise.xxvii

In a mandamus proceeding,

the petitioner must show that he is a person aggrieved but this requirement is not necessary in

a quo-warranto proceeding.xxviii

Mandamus and quo-warranto are concurrent remedies.xxix

Certiorari and prohibition deal with wrongful action, while mandamus deals with wrongful

inaction.xxx

Mandamus acts where the authority concerned has declined jurisdiction; certiorari

or prohibition act where courts (and tribunals) usurp jurisdiction not vested in them or exceed

their jurisdiction.xxxi

Existence of an alternate remedy is a matter to be taken into consideration while issuing a

writ of mandamus; however, prayer for prohibition or quo-warranto cannot be dismissed

only on the ground of alternate remedy being available to the applicant.xxxii

Demand for

justice and its consequent refusal by the authority concerned is a condition precedent in case

of mandamus; however, it is not the requirement in regards to the writ of prohibition or

certiorari.xxxiii

Certiorarified Mandamusxxxiv

: By issuing a writ of certiorari, an issue adjudged by a

subordinate court (or an inferior tribunal), if it is without jurisdiction or in excess thereof can

be quashed. A writ of mandamus is issued for directing a public officer, court, tribunal,

corporation or board to act in accordance with law; duly complying with their respective

public duty, which in-turn is imposed by the Constitution, a statute or the common law.

Mandamus cannot be used as a substitute for the writ of certiorari. Exercise of certiorari does

not bar mandamus, when facts of a case are peculiar and issuance of one writ does not

absolves, the issue adequately. Thus, in some cases, the relative nature in regards to certiorari

and mandamus may be combined.xxxv

By issuance of certiorari a decision may be quashed

and by subsequent issuance of mandamus an authority may be directed to decide the matter in

accordance with law. This culls out a writ of a completely different nature, that is,

„Certiorarified Mandamus‟.xxxvi

Supreme Court of India observed, in the case of, Chingleput Bottlers v. Majestic Bottling

Co.xxxvii

, as follows: “It is true that sometimes it is prudent to couple a writ of certiorari with

a writ of mandamus, to control the exercise of discretionary power. In a number of cases, the

Supreme Court has in fact issued both the writs, certiorari for quashing the decision

impugned and mandamus for direction to the authority or tribunal to decide the case afresh,

in accordance with law.”

In the case of, State of Bihar v. D.N. Gangulyxxxviii

, a reference was made under Section 10 of

the Industrial Disputes Act, 1947 to the industrial Tribunal by the appropriate Government.

The Government by issuing a notification cancelled the previous order of reference; this was

challenged by way of a writ of certiorari. The High Court issued a writ of certiorari quashing

the subsequent notification; the court, also issued a writ of mandamus directing the Tribunal

to proceed with the reference.xxxix

Since an act of making reference under Section 10 of the

Industrial Disputes Act, 1947 was held to be the one of „administrative nature‟; the Apex

Court held that a writ of mandamus (and not the one of certiorari) was available.xl

In another case (Mahaboob Sheriff v. Mysore State Transport Authorityxli

), in spite of a

statutory provision for renewal of permit for 3 years, the renewal was granted for only 1 year.

The Apex Court not only quashed the order but also issued a writ of mandamus directing the

authority concerned to renew the permit for a period of 3 years.

Emphasising on the art of „judicial creativity‟ which gives shape to judicial remedies of novel

nomenclature, such as that of Certiorarified Mandamus, Justice Krishna Iyer observed in the

case of State of Kerala v. Roshanaxlii

- Law is not unimaginative, especially in writ

jurisdiction, where responsive (and responsible) justice is the goal; courts cannot adopt a rigid

attitude of negativity, allowing people and the State, as such, to run into darkness; rule of law

must come for rescue with courts providing innovative judicial remedies which are capable of

meeting the needs of the time. Certiorarified Mandamus is a step in the direction of judicial

creativity and advancement. After all, law is not a brooding omnipresence in the sky but an

operational art in society.

Anticipatory Mandamus: In plethora of cases, K.K. Kochuni v. State of Madras (AIR 1959

SC 725); Robert Cutting, Re (1877 (94) US 14); Isha Beevi v. Tax Recovery Officer (1976 (1)

SCC 70); Maganbhai Ishwarbhai Patel v. Union of India (AIR 1969 SC 783); State of

Kerala v. Lakshmi Kutty (1986 (4) SCC 632), judgments rendered by the courts of the highest

order, in India and abroad, have reiterated the fact that, a writ of mandamus cannot be granted

on mere apprehension of the applicant that it is likely to be deprived of its fundamental or

other statutory right or on the basis of anticipatory omission of legal duty bestowed on a

public authority.xliii

Continuing Mandamus: Speaking objectively, the primary use of the writ of mandamus is to

command the public authorities to render their legal duties (bestowed upon them by the

Constitution, a statute or the common law), effectively and efficiently. There can be instances

where by the court may be of the view that mere issuance of a prerogative (writ of

mandamus) upon a public authority would not suffice and continued monitoring by the court

is to be required, to see that a public authority renders its legal duty effectively. In such a

case, rather than finally disposing of the matter, the court may be willing to issue interim

directions for continued surveillance over the public authorities, with court calling upon for

compliance report from time to time.xliv

This judicial remedy is a result of continued judicial

activism which sees law as an art of social-engineering. In several public-interest-litigation

cases, the Apex Court in India has ordered for a continuing mandamus.xlv

Illustrative Cases- Mandamus Issued:

a. A writ of mandamus can lie against the State Government to refund tax illegally

collected.xlvi

b. If the Government orders promotion of a „junior‟, superseding a „senior‟, in violation

of the provisions of the Constitution; the order can be quashed, directing the

Government to reconsider the case, however, court cannot ask the Government to

promote the „senior‟.xlvii

c. Mandamus can be issued to a University, if the aggrieved candidate appears at an

examination on the basis of certain regulations; which post the examination are

subsequently altered, retrospectively, to the candidate‟s disadvantage.xlviii

d. Where the Government neither records, nor communicates, the parties the reasons for

not making a reference under Section 12(5) of the Industrial Disputes Act, 1947, the

aggrieved party can seek the legal recourse of mandamus.xlix

e. Where the lessor (State Government) refused the request of the lessee (petitioner) for

transferring the lease, upon a wrong construction of the agreement entered into

between the parties, and thereby failed to exercise the discretion vested in it under the

rules; mandamus was issued to the authority to dispose of the lease in accordance with

law.l

f. Where the Additional Assistant Excise and Taxation Commissioner, Punjab had no

jurisdiction to levy tax under the Central Sales Tax Act with regard to inter-state sales

of goods sent from Bombay; mandamus was issued directing him not to proceed

further in pursuance of the notices issued by him for assessment of tax.li

g. Where Income Tax Officer refuses to carry out directions given by the Income Tax

Appellate Tribunal, it tantamount to denial of justice for which mandamus under

Article 226 of the Constitution can be issued ex debito justitiae for carrying out the

appellate order.lii

h. In this case, an auction for the sale of an excise licence was held and the highest

bidder acquired the status of a licensee after due compliance with law. But instead of

issuing a formal licence in his favour, the Government ordered re-auctioning the same

licence without giving any reasons. Mandamus was issued for not holding the re-

auction.liii

i. Where the Land Acquisition Officer erroneously refused to pay the interest on

compensation amount, mandamus was issued directing him to reconsider the

application for the payment of interest.liv

j. Where an order of detention is passed against the petitioner but if he is not actually

detained, he can file a writ of mandamus against the said order.

Illustrative Cases- Mandamus Refused:

a. No mandamus can be issued forbidding a Court Registrar to file decree by Judge

acting extra cursum curiae, because he is bound by law to file it.lv

b. Mandamus cannot be issued to enforce contractual rights and obligations.lvi

c. Writ of mandamus shall not lie to restrain a university from granting a degree of

Ph.D. to a student as the petitioner‟s right was in no way infringed thereby.lvii

d. Private institutions receiving grants cannot become public. No public duty is enjoined

on them by law. Mandamus cannot be issued against the management of a private

aided school to reinstate the Headmistress.lviii

e. Where the University Rules, relating to admission, mandated the enjoining of a

character certificate from Magistrate, the certificate from a Joint Secretary of the

Union Government counter-signed by a Magistrate was not held to be sufficient and

thus, mandamus was not issued.lix

f. No mandamus can be issued against a private arbitrator directing him to file an award

(for he is not a statutory arbitrator being obliged by statutory duties). The Court held

that, the Arbitration Act of 1940 is a complete code and the remedy mentioned therein

cannot be ignored by the petitioner. If the remedy, however, is time barred, then that

can be no ground for seeking mandamus.lx

g. In a peculiar case, examinees were permitted to appear for an examination, but on the

condition that they should re-coup the loss of attendance before the examination

commences. They, however, failed to do so. Post-examination, the results of the

examinees were with-held. The Court that, the examinees had no right to appear for

the examination and so no relief can be demanded by them by virtue of the writ of

mandamus.lxi

h. In the case of, Parkasho v. State of U.P.lxii

, the Court held that, an order of the

Governor, commuting death sentence which had been confirmed by the High Court

cannot be interfered with by mandamus. A comprehensive reading of Articles 72, 73,

161, 162 and 246 of the Constitution of India, makes it clear that the State

Government continues to enjoy the power of commuting a death sentence.

i. Where an assessment order is set aside and the rules concerned do not provide for

refund of tax levied; writ of mandamus cannot be issued. Filing a suit is the proper

remedy.lxiii

j. Grant of licence by an authority (duly vested under law with such power) cannot be

interfered with, by issuance of a mandamus, simply because the authority erroneously

interpreted Rule 13 of the Abkari Rules and Section 26 of the Travancore Abkari Act.

An erroneous decision is no ground for issuance of mandamus.lxiv

Conclusion: Administrative set-ups world over are suffering, more, from State in-action

rather than State mischief; much less to say, State in-action is State mischief in abstract sense.

Writ of mandamus is prerogative command of the least powered (but, most banked upon)

wing of the State, that is „judiciary‟, to cure the „sleep walking‟ tendency of the Government

that more often than less, pulls the democratic carriage, premised upon the „rule of law‟, into

the darkness of State anarchy, where rights, civil, political, legal and fundamental are just

black-letters, although written in gold in the State‟s Suprema Lex, are effected usually by the

maladies of corruption, red-tape, excessive bureaucracy and nepotism of novel sorts.

Judicial activism of recent times has added to the writ nomenclature like never before, with

writs like “certiorarified mandamus”, “anticipatory mandamus” and “continuing mandamus”

passing the social-floor-test, trying to make entry through the legal textual gateway. All this

speaks of two things, firstly, State in-action has added to public distrust in the positivist view

of law, and secondly, judiciary has taken recourse to activist tendency, pulling the curtains up

for the realist view of law to display the much needed action.

*Shivam Goel; B.Com (H), LL.B., LL.M.; Law Researcher- Delhi High Court; advocate.shivamgoel@gmail.com i Jenk’s Prerogative Writs, (1923) 32 Yale LJ, 528-530 ii de Smith: Judicial Review of Administrative Action, (1995), p.617-618

iii Halsbury’s Laws of England, Fourth Edition, Volume 1, p.111-113, Para 89-91; Corpus Juris Secundum, Volume

55, p.15-41; Words & Phrases (Permanent Edition), Volume 26, p.397-444 iv P.R. Aiyar, Advanced Law Lexicon (2005), Volume III, p.2873-2874

v (1775) 1 ID (OS) 1005: (1775) Mort 206

vi AIR 1946 Bom 216: (1945) 47 Bom LR 1010

vii Justice C.K. Thakker & M.C. Thakker, V.G. Ramachandran’s Law of Writs, Volume II, Chapter 2: Mandamus,

Eastern Book Publication, Sixth Edition (2006), p.1105-1106 viii

Mansukhlal v. State of Gujarat, (1997) 7 SCC 622 ix (1969) 1 SCC 585, 589: AIR 1969 SC 1306, 1309-1310: (1969) 3 SCR 773

x Kalyan Singh v. State of U.P., AIR 1962 SC 1183; State of Kerala v. Lakshmikutty, (1986) 4 SCC 632;

Comptroller & Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC 679; Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638; Union of India v. S.B. Vohra, AIR 2004 SC 1402 xi (2004) 2 SCC 150, 160: AIR 2004 SC 1402

xii Ramesh Prasad v. State of Bihar, (1978) 1 SCC 37; Union of India v. Orient Enterprises, (1998) 3 SCC 501;

Union of India v. E Merck (India), (1998) 9 SCC 412; State of Karnataka v. Uma Devi, (2006) 4 SCC 1 xiii

Mani Subrat v. State of Haryana, (1977) 1 SCC 486; Bihar Eastern Gangetic Fishermen Co-operative Society v. Sipahi Singh, (1977) 4 SCC 145; Jashbhai Motibhai v. Roshan Kumar, (1976) 1 SCC 671; Ramesh Prasad v. State of Bihar, (1978) 1 SCC 37 xiv

In Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. (AIR 1990 SC 2060), a letter was addressed to the Supreme Court by the Samiti, alleging environmental pollution by an oil mill in a thickly populated area, proving great health hazard to the public. The letter was treated as a writ petition under Article 32 of the Constitution, and the notices were issued by the Court. It was alleged by the third respondent (the mill company) that there was a long rivalry between the petitioner (Sita Ram Pandey) and the third respondent. Several criminal cases were filed against the petitioner for blackmailing the people and only aim of the petitioner was to extract money from the respondent (the mill company). The Court was also satisfied that the provisions of the Air (Prevention and Control of Pollution) Act, 1981, as well as the Water (Prevention and Control of Pollution) Act, 1974 have been complied with. In these circumstances, dismissing the petition, the Court observed: “While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon (writ of mandamus) under Article 32 of the Constitution, is not misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of prevention of fundamental rights.” xv

Despite alternate remedy available, a writ of mandamus may lie in the following cases: 1. Where the alternative remedy is dilatory or not equally convenient and effectual (See: S.T.O. v.

Shivratan, AIR 1966 SC 142), or 2. Where the executive authority issuing the impugned order had not applied its mind to the question-

as to- whether the conditions which gave it jurisdiction were satisfied (See: Cooverjee v. Excise Commissioner, 1954 SCR 873), or

3. Where there is a right of appeal but the law itself does not provide the remedy by which an infringement of a fundamental right is to be remedied (See: Rashid Ahmed v. Municipal Board, AIR 1950 SC 163), or

4. Where the petitioner’s fundamental right is infringed (See: Wazir Chand v. State of H.P., AIR 1954 SC 415), or

5. When the alternative remedy of filing an appeal is rendered difficult or impossible on account of the impugned order containing no reasons for refusal (See: Liberty Oil Mills v. Union of India, (1984) 3 SCC 465), or

6. When there is no order as such (See: Union of India v. Tarachand Gupta, AIR 1971 SC 1558), or 7. Where the matter is kept unduly pending without passing any order (See: Ambalal v. Ahmedabad

Municipal Corporation, AIR 1968 SC 1223; Hindustan Transport Co. v. State of U.P., AIR 1984 SC 953), or

8. Where no date for hearing of the appeal is fixed and stay of only seven days had been granted (See: Rashid Ahmed v. Municipal Board, AIR 1950 SC 163), or

9. Where alternative remedy is onerous, for example, where deposit of assessed costs is a condition precedent for an appeal (See: Himmatlal v. State of M.P., AIR 1954 SC 403), or

10. Where the Act which provides the alternative remedy is itself ultra vires (See: Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661).

xvi In Corpus Juris Secundum (Vol.55, p.87) it has been stated that three elements must co-exist: the existence

of a clear right in the applicant; the existence of a legal duty on the respondent; and the absence of another adequate legal remedy available. Kamini Kumar v. State of West Bengal, (1972) 2 SCC 420; Saraswati Industrial Syndicate v. Union of India, (1974) 2 SCC 630; Amrit Lal v. Collector of Central Excise, (1975) 4 SCC 714; State of Haryana v. Chanan Mal, (1977) 1 SCC 340 xvii

Exceptions to the demand-refusal rule are as follows: (a) Where it appears that a demand would be unavailing; (b) Where the respondent has by his own conduct made a demand impossible; (c) Where the duty sought to be enforced is of a public nature affecting the people at large and there is no one especially

empowered to demand performance; (d) Where the duty is imperatively required by law of ministerial officer, particularly where the respondent has done an act which he calls a performance; and (e) Where a person has by inadvertence omitted to do some act which he was under a duty to do and the time within which he can do it has passed. (See: R v. Hanley Revising Barrister, (1912) 3 KB 518, 531; Guru Charan v. Belonia Vidyapith, AIR 1955 Trip 33) xviii

1858 EB & E 1024, 1032, 1034 xix

R v. Archbishop of Canterbury, (1812) 12 QBD 461; R v. Bowman, (1898) 1 QBD 663; R v. Vestry of St. Pancreas, (1890) 24 QBD 371; R v. London City County Council, (1915) 2 KB 466; R v. Askew, (1968) 98 ER 139 xx

Professor Wade, Administrative Law, 9th

Edition, p.615 xxi

(1998) 8 SCC 143 xxii

(1986) 2 SCC 679: AIR 1987 SC 537 xxiii

Corpus Juris Secundum, Volume 55, p.85-87 xxiv

In the case of R v. Barker, (1762) 3 Burr 1265, 1267: 16 Digest Rep 315: 97 ER 823, Lord Mansfield observed: “Mandamus was introduced to prevent the failure of justice. It ought to be used upon all occasions where the law has established no specific remedy, and where in, as of justice and good government, there ought to be one. If there be a ‘right’ and no other specific remedy, mandamus should not be denied. Writs of mandamus have been granted, to admit lecturers, clerks, sextons, scavengers and to the alderman, to restore them their respective office of authority, and also to attorneys practicing in inferior courts, etc.” xxv

Ferris: The Law of Extraordinary Legal Remedies, Para 109, p.221; Wade: Administrative Law (9th

Edition), p.615-630; de Smith: Judicial Review of Administrative Action, (1995), p.631-635 xxvi

State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018; Mohd Yunus v. Lt. Governor of Delhi, AIR 1977 Del 105; Narsimha v. Dy. C.T.O., Madras, AIR 1963 Mad 166; Lachhaiah v. District Panchayat Officer, Guntur, AIR 1960 AP 493; Venkateswara v. State, AIR 1958 AP 458; Kabul Singh v. Niranjan Singh, AIR 1958 Punj 168 xxvii

Satyanarayan Sinha v. Lal & Co., (1973) 2 SCC 696; Kesavan v. State of T.N., ILR (1979) 1 Mad 87; Mir Ghulam Hussan v. Union of India, (1973) 4 SCC 135 xxviii

Sohan Lal v. Union of India, AIR 1957 SC 529; University of Mysore v. Govind Rao, AIR 1965 SC 491; Nesamony v. Varghese, AIR 1952 TC 66; Kesavan v. State of T.N., AIR 1979 Mad 133 xxix

Corpus Juris Secundum, Vol. 55, p.21 xxx

Wade: Administrative Law, 9th

Edition, p.615; Corpus Juris Secundum, Vol.55, p.21 xxxi

Dinbai v. Noronha, AIR 1946 Bom 407; Jupiter General Insurance Co. v. Rajgopalan, AIR 1952 Punj 9; Jagan Nath v. District Magistrate, Allahabad, AIR 1951 All 710; Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638 xxxii

Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661; Isha Beevi v. Tax Recovery Officer, (1976) 1 SCC 70; Hamid Hasan v. Banwarilal Roy, AIR 1947 PC 90 xxxiii

State of U.P. v. Mohd Nooh, AIR 1958 SC 86; K.K. Kochuni v. State of Madras, AIR 1959 SC 725; State of U.P. v. Indian Hume Pipe Co., (1977) 2 SCC 724; Ram & Shyam Co. v. State of Haryana, (1985) 3 SCC 285 xxxiv

de Smith (Judicial Review of Administrative Action, (1995), p.698) states: “The prerogative orders may be granted either singly or in combination. Where, for example, an applicant is aggrieved by a decision, certiorari may be sought to quash it, together with an order of mandamus to compel the decision-maker to determine the issue in accordance with law.” xxxv

In the leading case, Board of Education v. Rice (1911 AC 179) the Board discriminated between two classes of schools. The House of Lords quashed the decision by certiorari and at the same time commanded- ordering mandamus- to determine the matter in accordance with law after due application of mind to the correct question of law and facts. xxxvi

Corpus Juris Secundum, Volume 55, p.56; Halsbury’s Laws of England, Fourth Edition, Volume 1, p.103, Para 82; Wade: Administrative Law, 9

th Edition, p.624-625

xxxvii (1984) 3 SCC 258: AIR 1984 SC 1030

xxxviii AIR 1958 SC 1018: 1959 SCR 1191

xxxix D.N. Ganguly v. State of Bihar, AIR 1956 Pat 449

xl AIR 1958 SC 1018, 1026; State of Mysore v. Syed Mahmood, AIR 1968 SC 1113

xli AIR 1960 SC 321: (1960) 2 SCR 146

xlii (1979) 1 SCC 572: AIR 1979 SC 765

xliii As a general rule, no writ of mandamus would lie unless there is infringement of the right bestowed in an

applicant. Anticipatory threat to legal right cannot be made subject-matter of mandamus. However, if threat is real or there is imminent danger of invasion of right, a petition is maintainable. xliv

Vineet Narain v. Union of India, (1998) 1 SCC 226,237: AIR 1998 SC 889, 896-897

xlv

T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 xlvi

Padmanabha v. Adhikari, AIR 1959 SC 135; Salonah Tea Co. v. Superintendent of Taxes, (1988) 1 SCC 401 xlvii

State of Mysore v. Syed Mahmood, AIR 1968 SC 1113; State Bank of India v. Mohd Mynuddin, (1987) 4 SCC 486 xlviii

Virendra Kapur v. University of Jodhpur, AIR 1964 Raj 161; Suresh Pal v. State of Haryana, (1987) 3 SCC 445 xlix

Govt. of Madras v. Workmen, AIR 1964 Mad 468 l Shanker Prasad v. State of M.P., AIR 1965 MP 153 li National Rayon Corporation v. Additional Assistant Excise Commissioner, AIR 1965 Punj 62; East India

Commercial Co. v. Collector of Customs, AIR 1962 SC 1893 lii Bhopal Sugar Industries Ltd. v. I.T.O., AIR 1961 SC 182

liii State of Punjab v. Raghunath Dass, AIR 1963 Punj 76

liv All India Tea Trading Co. v. S.D.O., AIR 1962 Ass 20: ILR (1961) 13 All 382

lv Arati Paul v. Registrar, High Court, AIR 1965 Cal 3

lvi Joginder Singh v. Assistant Registrar, Co-operative Societies, AIR 1965 J&K 39

lvii Kanhaiyalal v. University of Rajasthan, AIR 1965 Raj 84: 1965 Raj LW 53

lviii Kumari Regina v. St. Aloysius Higher Elementary School, (1972) 4 SCC 188

lix Ramaswamy v. Manju Bakhru, AIR 1963 Punj 419

lx Balkishen Gulzari Lal v. Panna Lal Sud, AIR 1973 Del 108

lxi Anand Misra v. B.S.E. Board, AIR 1972 Pat 239

lxii AIR 1962 All 151: 1962 All WR (HC) 225

lxiii Suganmal v. State of M.P., AIR 1965 SC 1740

lxiv Natarajan v. State of Kerala, AIR 1961 Ker 318: 1960 KLT 1109; Ujjam Bai v. State of U.P., AIR 1962 SC 1621:

(1963) 1 SCR 778