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High Courts not only have power to issue Mandamus, but are duty bound to exercise it

Dated: August 08, 2020

                                                                                                                                                           - By Megha Bhatia

In a judgment issued by the Bench of Hon’ble Justice Indira Banerjee and Hon’ble Justice Indu Malhotra on August 7, 2020 the Supreme Court observed that it is the responsibility of the High Courts to grant a Writ of Mandamus to impose a public order.

In certain situations, whether it had exercised its authority appropriately and constitutionally, the judges said, in order to avoid discrimination to the parties, the Court may itself impose an order or issue instructions which the government or public authorities would have passed.

Writ of Mandamus

According to the Ninth Edition of Black’s Law Dictionary, Writ of Mandamus is one that is issued against an inferior court, a governmental body or officer by a superior court to rectify an action of the past or omission to act along the lines of the responsibility that they are entitled to. Writ of Mandamus can also be issued against public corporations and tribunals. As it is directed to set the indolent authorities to task, it is also described as a “wakening call”, dictating their activity and setting them in action in pursuance of discharging public duty.

High Courts are duty bound to exercise power to Issue Mandamus

In this case the conflict relates to a private road. The appellant trust filed a request with the State Government to rectify the incorrect entry stating that the Pune Municipal Corporation had never acquired the internal road. The Department of Town and Planning even agreed that Pune Municipal Corporation had been falsely believed to be the owner of said road. But, the Department of Urban Development and Government of Maharashtra dismissed the proposal and held that Pune Municipal Corporation is the land owner.

The Additional Commissioner for Municipal Corporation, Pune Municipal Corporation, told the Secretary, Department of Urban Development, Maharashtra Government that the Town Planning Scheme No. I had been granted with respect to Plot number 473B without any alteration in the parameters of the plot. The Hare Krishna Mandir Trust filed the writ petition challenging the said order in the Bombay High Court. The High Court dismissed the petition and questioned the said order passed by the Government. The Apex Court also observed that, by reading the same in distinction from the other sections of the Regional and Town Planning Act, in specific Sections 65, 66, 125 and 126 thereof, the High Court misinterpreted Section 88 of the Act.

Although opposing the decision of the High Court dismissing a written petition, the Court observed that the private road in dispute did not belong to the Pune Municipal Corporation at any point of time. The bench observed on its reluctance to give mandamus to fix the mistaken entry:

“The High Court’s 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. 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.”

The court further observed, “The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. 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. The 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.”

Right to Property: Constitutional as well as Human Right

The right to property is still a constitutional right and a human right, reiterated the Supreme Court while allowing the appeal led by Hari Krishna Mandir Trust in the above stated matter.

The bench comprising of both the female judges noted that the right to property encompasses some proprietary/hereditary claim in the ability to administer a religious endowment, as well as everything gained by inheritance.

The bench also noted that in the absence of any sale or purchase proceedings, the State should not have purchased any property belonging to the Trust. The court, referring to Article 300A of the Constitution, has stated:

“The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law.”

The court further observed that Article 300A embodies the Eminent Domain Doctrine which comprises of two sections, (a) possession of property in the public interest; and (b) payment of reasonable compensation. It also mentioned: 

“The State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation. The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executive cannot deprive a person of his property without special legal authority, which can be established in a court of law.”

The court also noted that although the ability to demand compensation or the State’s duty to pay compensation to an individual robbed of his or her property is not specifically provided for in Section 300A of the Constitution, though it is present in the Act. It said, “The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a land holder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.”

     Hence, Writ of Mandamus should properly be represented as a legislative instrument for ensuring the public interest in general, safeguarding their rights granted to them in the Constitution and other land legislation. This is therefore an important tool for making the state or municipal agencies responsible and mandating them to meet their legislative and contractual responsibilities. Therefore, mandamus is basically a pro-democracy tool that empowers common people to impose their freedoms through the regulatory bodies.