S. Kabul Singh vs Niranjan Singh And Ors.

Article 226 of the Constitution empowers a High Court to issue writs of various kinds including writs in the nature of mandamus, prohibition and certiorari. An order of mandamus is, in form, a command directed to some inferior Court, tribunal or board or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. It compels a tribunal to exercise a jurisdiction which it possesses but declines to exercise.

Bihar Eastern Gangetic (EGF Cooperative Society)... vs Sipahi Singh & Others
The chief function of a writ is to compel the performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public function within the limit of their jurisdiction. In order that mandamus may issue to compel the parties to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a. legal right under the statute to enforce its performance.

Vijay Mehta vs State Of Rajasthan

in order to maintain a writ for grant of mandamus, the petitioner must show that there exists a right in him to compel the opposite party to act in a particular manner and in the absence of any such right, the petition for the grant of mandamus cannot be allowed.

It is well settled that four pre-requisite conditions for issuance of a writ of mandamus are these:--1. Whether the petitioner has a clear and specific right to relief demanded by him? 2. Whether there is a duty imposed by law on the respondent? 3. Whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of respondent? and 4. Whether petitioner has any remedy other than by way of mandamus for the enforcement of right which has been denied to him?
"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something."

V C Utkal University v SK Ghosh Not writ of course and not a writ of right At discretion of the court

Dr. Umakant Saran v St of Bihar It is neither a curative nor a preventive remedy. It is in the nature of positive remedy. It is the command of superior court to do or refrain from doing in positive way. It commands the performance of a legal duty.

Grounds for issue of writ of mandamus 1. The petitioner has a legal right 2. That there has been infringement of legal right of the petitioner 3. That this infringement has been owing to non-performance of the corresponding duty by the public authority 4. That the petitioner has demanded the performance of the legal duty by the public authority and the authority has refused to act Badrinath v Govt. of TN
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 126 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and 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 or a writ in the nature of mandamus or pass orders and 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 concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

5. That there has been no effective and alternate remedy

Grounds on which mandamus may be refused 1. Where the issue of writ would be influctous Daya v Joint Chief Controller AIR 1962 SC1796 2. Where the application is premature EI Commercial Corp. v Collector 3. Where the mandamus would be futile 4. It may be refused on equitable grounds Ibrahim v Commissioner 5. There has been latches and delay ( undue delay) 6. Not appropriate to decide questions of title. Sohan lal v UOI The alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title to the. property in dispute was clear. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty 7. To enforce a contract Nagpur Glassworks v State of MP 8. To examine facts VC Utkal University v SK Ghosh The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in

addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. 9. To correct a mere regularity Karpoori Thakur v Abdul Gafoor, Chief Minister of Bihar

Mandamus in Indian Law prior to the Constitution Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. In 1877, the Specific Relief Act substituted an order in the nature of mandamus in the place of the writ of mandamus for the purpose of "requiring any specific act to be done or forborne within the local limits of its ordinary civil jurisdiction by any person holding a public office.6 Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been omitted. This omission must have been because such a provision under the Specific Relief Act became redundant since the Constitution of India contains a similar and more efficacious provision for the enforcement of public duties. The Constitution empowered all High Courts to issue directions, orders or writs including writs in the nature of mandamus for the enforcement of any of the rights conferred by Part III and for any other purpose.7 The Supreme Court can also issue mandamus for the enforcement of fundamental rights.8 Framework of law in relation to mandamus The Supreme Court has the power to issue writs under the Constitution of India, art. 329. 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 Articlewithout 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 Constitutionand the very heart of it'13. 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 discretionary10. 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.