By N. C. Jain, Advocate
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The Word
Literally meaning ‘command’ or ‘order’ in Latin, the term ‘mandamus’
has come to be used in law for a judicial remedy in the form of an order from a
superior court to a court, tribunal, authority, board, corporation or any other
individual or body charged with the performance of a public duty, to discharge
that duty. Mandamus compels them to do acts which they are obliged under
law to do or refrain from doing, which they are not authorised to do in
discharge of public duty or statutory duty. The remedy is in the form of a
prerogative writ under Articles 32 and 226 of the Constitution of India.
2. While there are judicial remedies by way of appeals,
certiorari and others to remedy the wrong done, the order of mandamus
is an effective remedy against injustice caused by non-performance of duty
affecting legal rights vested in the person aggrieved by such non-performance of
the public duty. It lies in cases where there is a specific right, but no
specific legal remedy for enforcing that right and also in cases where, even
though there is an alternative remedy, the mode of redress is less convenient,
beneficial and effective or where there is a total absence of jurisdiction. When
a petition for issue of writ of mandamus was filed seeking directions to
the State to refund money illegally collected as tax, the same was held not
maintainable, because a claim for such refund could always be made in a suit
against the authority which had illegally collected the money as tax. Further,
it was held that in the absence of statutory provision whereby the tax realised
had to be refunded when the appellate authority set aside the assessments, no
duty was cast on the State to refund the amount it had realised which was
subsequently found by the appellate authority to be not in accordance with law.
The question whether the State was bound u/s.72 of the Contract Act to return
the amount on the ground that it was paid under mistake was a matter to be
decided in a regular suit and not in proceedings under Article 226 [Sugan Mal
v. State of M.P., 56 ITR 84 (SC)]. In another case where mandamus was
sought for stopping the recovery proceedings by the TRO for alleged
irregularities, the Supreme Court observed that the existence of an alternative
remedy is not generally a bar to the issuance of a writ or order in the nature
of prohibition. But, in order to substantiate a right to obtain a writ, an
applicant has to demonstrate total absence of jurisdiction to proceed on the
part of the officer or authority complained against. It is not enough if a wrong
Section or provision of law is cited in a notice or order if the power to
proceed is actually there under other provision [Isha Beevi v. TRO, 101
ITR 449 (SC)].
3. Mandamus does not lie to enforce a private right,
neither to enforce a duty of purely ministerial nature which the officer is
bound to perform under orders of competent authority, nor in matters where duty
is discretionary, not imperative. Mandamus was sought against the CBDT
claiming refund of taxes paid for years in respect of which no appeals were
preferred and assessments were allowed to become final. The claim was made on
the basis of the decision in appeal relating to an earlier year, received after
those assessments became final which revealed that no tax was payable in those
years. Rejecting the writ, the Supreme Court held that it is doubtful that the
Central Board can exercise any judicial power and direct refund. Nor is there a
statutory duty cast on it to consider applications for refund, and so a writ of
mandamus would not issue from the court. [Raja Jagdambika Pratap
Narain Singh v. CBDT, 100 ITR 698 (SC)].
4. A public duty enforceable through mandamus must
also be an absolute duty i.e., one which is mandatory and not
discretionary. Where a bottling company’s application for grant of licence was
rejected by the Commissioner and in a writ filed against the Commissioner, the
High Court not only quashed the order but also directed the Commissioner to
grant the licence, the Supreme Court disapproved mandamus on the ground
that in order to compel the Commissioner, by an order of mandamus, to
grant the licence, it must be shown that under the Act and the Rules framed
thereunder there was a legal duty imposed on the Commissioner to issue a licence
without the prior approval of the State Government. In this case the
Commissioner was under no legal duty to grant the licence till he received the
prior approval of the State Government. [Chingleput Bottles v. Majestic
Bottling Co., (1984) INSC 60].
5. Distinction has to be drawn between public duties
enforceable by mandamus and duties arising merely from contract.
‘Contractual duties’ are enforceable as matters of private law by the ordinary
contractual remedies such as damages, injunction, specifics performance and
declaration. Such duties are not enforceable by mandamus which is
confined to public duties and is generally not granted if other remedies are
adequate.
6. While mandamus applies to public duties only, it is
not necessary that the person or the authority on which the statutory duty is
imposed, need be a public official or an official body. A mandamus may
issue, for instance, to official of a society to compel him to carry out the
terms of the statute under or by which the society is constituted or governed
and also to companies and corporations to carry out duties placed on them by the
statutes authorizing their undertakings. A mandamus would also lie
against a company constituted by a statute for the purpose of fulfilling public
responsibilities. A writ would lie even against a private individual. The words
‘any person or authority’ used in Article 226 are not to be confined only to
statutory authorities and instrumentalities of the State. They may cover any
other person or body performing public duty. The form of the body concerned is
not very much relevant. What is relevant is the nature of the duty imposed on
the body [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V. R. Rudani, 1989 AIR (SC) 1669].
7. The remedy is prerogative. Apart from existence of
alternative remedy, the Court may decline to interfere where circumstances so
warrant, including the delay in making claims. In Jagdambika Pratap Narain’s
case (supra) the Supreme Court upheld the order of the High Court,
observing that Article 226 of the Constitution is not a blanket power regardless
of temporal and discretionary restraint. If a party is inexplicably insouciant
and unduly belated due to laches, the Court may ordinarily deny redress.
8. Mandamus may take the form of ‘Alternative
mandamus’ when issued upon the first application for relief, commanding the defendant either to perform the act or to appear before the Court to show cause for not performing it. It may be ‘Pre-emptory’ when it is an absolute and unqualified command to do the act in question and is issued when one defaults on, or fails to show sufficient cause in answer to ‘alternative mandamus’. It is Continuing mandamus when issued in general public interest commanding performance for an unstipulated period of time for preventing miscarriage of justice. Such an order has relevance where a mere issue of mandamus would be futile against a public agency guilty of continuing inertia and thus continuing mandamus may be issued [Vineet Narain v. UOI, 1998 AIR (SC) 889].
9. Mandamus is a relatively inexpensive and expeditious remedy. In an era where extensive powers are vested in the executive and their inaction in discharge of duties or action which is malafide, beyond jurisdiction or influenced by extraneous considerations might play havoc with the life and liberties of individuals and orderly running of societies mandamus works as the most effective instrument to ensure order and justice. No wonder, the trend of judicial pronouncements is towards a liberal approach with the object of extending its scope and taking a broader view of its coverage. As observed by the Supreme Court in Rudani’s case (supra) “the judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartments. It should remain flexible to meet the requirements of variable. circumstances. Mandamus is a very wide remedy, which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226”.
