BODY OF ARGUMENTS

Summary of arguements

It is humbly submitted before the High Court of Patna that the present case is not maintainable
under Art 226 of the Constitution of India on two grounds a) That the due procedure given in
section 23 and of Consumer Protection Act,1986 was not followed and b)According to Article
226 of Constitution Of India,1950 the writ mandamus is issued only against public authority.

WHETHER THE CASE BEFORE PATNA HIGH COURT IS MAINTAINABLE IN THE

EYES OF LAW

1. Writ Jurisdiction of the High Courts flows from Article 226, which confers wide powers
enabling the Court to issue writs, directions, orders for the enforcement of fundamental or legal
rights. It is humbly submitted before the High Court of Patna that the present case is not
maintainable under Art 226 of the Constitution of India on two grounds a) That the due
procedure given in section 23 and of Consumer Protection Act,1986 was not followed and
b)According to Article 226 of Constitution Of India,1950 the writ mandamus is issued only
against public authority.
That the due procedure given in section 23 and of Consumer Protection Act,1986 was not
followed

Section 23 of Consumer Protection Act,1986(Hereinafter referred to as CPA) was not followed

by the Appellant which clearly states that any person, aggrieved by an order made by the
National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of
section 21, may prefer an appeal against such order of the Supreme Court. Therefore the case is
not maintainable as due procedure of law was not followed by Appellant.

Recently, in a landmark case Cicily Kallarackal v. Vehicle Factory SC held that HC had no
jurisdiction to deal with matter against order of national commission. When legislature has
provided for statutory appeal, HC cannot bypass statutory appeal. Hence direction of caution
issued to all HC to not to entertain writ petitions challenging order of National Commission.

Article 226 of Constitution Of India,1950

Under Article 226 of Constitution, HC has power to issue such writs and orders as are necessary
for administrative action. A writ of Mandamus is issued by a superior court to compel a lower
court or a government officer to perform mandatory or purely ministerial duties correctly.

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 :

(i) The applicant must have a legal right to the performance of a legal duty11. It will not issue
where to do or not to do an act is left to the discretion of the authority12. It was refused where
the legal duty arose from an agreement which was in dispute13. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution14 or of a statute15 or of the
common law16.

(ii) The legal duty must be of a public nature. 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 stated that mandamus might under certain circumstances lie against a private
individual if it is established that he has colluded with a public authority.

Also , in Union of India v C Krishna Reddy , (AIR 2004 SC 1194) , it was held by the Supreme
Court that the chief function of the writ of mandamus , it is explained , is to compel performance
of public duties prescribed by Statue and to keep subordinate Tribunals and officers exercising
public functions within the limit of their jurisdiction .

Hence the writ of Mandamus is issued only against public authority. Appellant cannot issue this
writ as it is nowhere stated in facts that VMCH comes under public authority nor given that it is
colluded with a public authority.