Supreme Court: The bench of Indira Banjerjee and Indu Malhotra, JJ that the Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty.
“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.”
The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road. In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters. Read more
“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”
Considering the issue at hand, the Court noticed in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. It said that in all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”
“In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.”
Stating that the Court is duty bound to issue a writ of Mandamus for enforcement of a public duty, the bench said that there can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant.
“A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”
It further said that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.
[Hari Krishna Mandir Trust v. State of Maharashtra, 2020 SCC OnLine SC 631, decided on 07.08.2020]
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