Mandamus.docx

Mandamus: Mandamus literally means ‘we command.’ It commands the person, to whom it is addressed to perform some public or quasi-public legal duty which she/he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.

It is, therefore, clear that mandamus will not be issued unless the applicant has a legal right for the performance of that particular legal duty of a public nature and the party against whom the writ is sought, is bound to perform that duty.

The purposes for which a writ may be issued are as: (a) For the enforcement of fundamental rights. Whenever a public officer or a Government has acted in a manner violating the Fundamental Right of a person, the court would issue a writ of mandamus restraining the public officer or the Government from enforcing that order or acting against the person whose fundamental right has been infringed,

(b) Mandamus can be issued by a High Court for various other purposes, e.g.,

(i) To enforce the performance of a statutory duty where in a public officer has got a power conferred by the Constitution or a statute. The Court may issue a mandamus directing him/her to exercise the power in case she/he refuses to do so.

(ii) To compel a person to perform his public duty where the duty is imposed by the Constitution or a statute or a statutory instrument,

(iii) To compel a court or judicial tribunal to exercise its jurisdiction when it has refused to exercise it.

ADVERTISEMENTS: (iv) To direct a public official or the Government, not to enforce a law that is unconstitutional.

http://www.lawnotes.in/Mandamus: Mandamus Jump to:navigation, search Home Constitutional Law Mandamus Mandamus is a Latin term to mean 'We command' or 'Order'. A Writ of Mandamus is a command (in the form of an Order) directed to the inferior court, tribunal, board, corporation or any administrative authority or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person. It is a type of extra-ordinary remedy available to the appellants to compel the authority to perform a duty cast upon them.          

In India, the direction can be given by the Supreme Court or the High Court of a state. The court can direct to do or not to do a specific act. Writ cannot be issued against a private individual It cannot be issued in matters where the authority is using his discretionary powers of the public authority. Writ cannot be issued to the Government for the enhancement of dearness allowance as it is a discretionary power of the Government. Writ should not lie in a civil liability, which should be solved in civil courts by way of civil suits. Writ cannot be issued to a private medical college Writ cannot be issued to any legislative body to enact a particular Act. Writ cannot be issued against the President or Governor or a state Writ cannot be issued when alternative remedies are available. Contents [hide]

    

1 Nature and Scope 2 Invocation of Writ of Mandamus 3 Grounds for Writ of Mandamus 4 Related Cases / Recent Cases / Case Laws o 4.1 Indian Case Laws 5 Related topics

Nature and Scope Invocation of Writ of Mandamus Grounds for Writ of Mandamus The Writ can granted against a public authority if:       

Acted against the law Exceeded his limits of power Acted with mala fides Did not apply his mind Abused his discretionary powers Did not take into account relevant consideration Has taken into account irrelevant consideration

Related Cases / Recent Cases / Case Laws   

Lahiff v St. Joseph, etc., Soc., 76 Conn. 648, 57 A. 692, 65 L.R.A. 92, 100 Am.St.Rep. 1012 Onion v Supreme Temple Pythian Sisters, 227 Mo.App. 557, 54 S.W.2d 468, 469 People v Nelson, 346 Ill. 247, 178 N.E. 485, 487.

Indian Case Laws    

    

Poonam v State of UP and Others, Civil Appeal Jurisdiction, Civil Appeal No 6774 of 2015, Supreme Court of India judgment dated October 29, 2015 Sambhavana v University of Delhi, Civil Appeal Jurisdiction, Civil Appeal Petition No 4722-4723 OF 2013, Supreme Court of India judgement dated May 29, 2013 Kabul Singh vs Niranjan Singh, AIR 1958 Punj 168 R vs Dunshett, (1950) All ER 741 at 743: In England, the writ is neither a writ of course nor a writ of right but it will be granted if the duty is in the nature of public duty is in the nature of public duty and specifically affects the right of an individual provided there is no other appropriate remedy. Sales Tax Officer v Kanhaiyalal, AIR 1959 SC 135: Court can order Sales Tax Officer to refund tax illegally collected from the petitioner. Governing Body of Devi Kandal Nityanand College v State of Orissa, AIR 1989 Orissa 165 Sekkilar v Krishna Moorty, AIR 1952 Mad 151: A Writ of Mandamus can be issued against the Principal of an college which was maintained solely out of public funds Harendra Chandra Das v Gauhati University, 1953 CWN 54: A Writ of Mandamus can be issued against an autonomous body like University. Hemendra v Gauhati University, (1953) CWN 54 Assam: Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so

to declare though the petitioner had obtained the pass marks required by the statutory rules of the University. Kumkum Khanna v Principal, Jesus and Mary College, AIR 1976 Del 35: Delhi High Court said that Mandamus can be issued against a natural person if he is exercising a public or statutory power of doing a public or statutory duty, such as against the Principal of a privately managed college. Tapendra Nath Roy v University of Calcutta, AIR 1954 Cal 141, Mandamus was issued against the University to restrain it from giving effect to an order passed in violation of its own rules. State of MP v Mandawara, AIR 1954 SC 493: The applicant must have the right to compel the performance of some duty case upon the authority. Mandamus will not be issued if the duty is merely discretionary in nature. The Supreme Court rejected the plea to compel the Government to direct the payment of dearness allowance to its employees at a particular rate. Barada Kanta v State of West Bengal, AIR 1963 Cal. 161: Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty. Saraswati Industrial Syndicate Ltd v Union of India, AIR 1975 SC 46: Even in the case of an alleged breach of a mandatory duty, the party must show that he has made a distinct demand to enforce that duty and that the demand was met with refusal. Bihar EGF Co-operative Society v Sipahi Singh, AIR 1977 SC 2149: Writ of Mandamus cannot be granted to enforce an obligation arising out of a contract.













Writ of Mandamus A writ of mandamus is an order issued by a superior court to a lower court or other entity commanding the lower court, corporation or public authority to perform or not perform specific acts. Rules applying to a mandamus include: The requested act must be used as a judicial remedy. The act must conform to statutorily-authorized provisions. The write must be judicially enforceable and protect a legal right. Three types of mandamus are utilized, depending upon the legal circumstances. The alternative mandamus demands a defendant to appear before court, perform an act or show cause for not having done so.  The peremptory mandamus is used when a defendant fails to comply with an alternative mandamus and which is an absolute command for performance.  Third, the continuing mandamus requests an officer or authority to perform its activities expeditiously for an indefinite period of time in order to prevent a miscarriage of justice. (Practical example is the case of the Kanchi Shankaracharya who got entangled in a criminal case. Looks like the police froze the accounts of the trust he runs and subsequently, the writ mandamus was filed and upheld by the Chennai High Court.) 