No writ in the nature of a mandamus can be issued if there is no failure to perform a mandatory duty: High Court of Patna
Powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. It is a well-recognised rule that no writ or order in the nature of a mandamus can be issued when there is no failure to perform a mandatory duty applies in this country as well and the same was upheld by High Court of Patna through the learned bench led by JUSTICE S. KUMAR in the case of Bimal Kumar vs. State of Bihar [Case No.895 of 2022] on 07.03.2022. The facts of the case are that writ petitions were raised by way of public interest litigation and the controversy before the court was whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. The petitioner seeks issuance of Writ in the nature of Mandamus directing the Respondents to activate the User ID of the petitioner and also permit the Petitioner to perform all the mining activities which the petitioner in entitled to do in the light of Storage License issued by the Respondents. And further direct to restore the Storage License of the petitioner. The respondent’s counsel stated that if such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously as it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court. The Court held that no ground whatsoever is shown here by petitioner for the issue of any writ, order, or direction under Article 226 of the Constitution. The Court observed that, “powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. It is a well-recognised rule that no writ or order in the nature of a mandamus can be issued when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England.” Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King’s Bench directing performance of a public legal duty. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8922 Bimal Kumar Son of Ranjandhri Singh Resident of Kusumpuri Colony West of Mangal Chowk Khemnichak Sampatchak New Jaganpura P.S. Jakkanpur District Patna Permanent Resident of Village Jalpura P.O. Masautha P.S. Paliganj District Patna ... Petitioner s The State of Bihar through the Chief Secretary Government of Bihar Patna The Principal Secretary cum Mines Commissioner Mines and Geology Department Government of Bihar Patna The Director Mines and Geology Department Government of Bihar Patna The Assistant Director District Mining Office Patna The Mineral Development Officer District Mining Office Patna The Mining Inspector District Mining Office Patna ... Respondent s Mr.Jagjit Roshan Advocate Mr.Gyan Prakash Ojhaand further to compensate the Petitioner by the Respondents for illegally selling the Sotred Sand of the Petitioner purchased on the Storage License bearing Storage License No. K 419 Patna High Court CWJC No.8922 dt.07 03 2022 II. Issuance of Writ in the nature of Mandamus directing the Respondents to take a Final Decision after considering the Show Reply dt. 26.06.2020 and further direction may be given for the Renewal of Storage License bearing Storage License No. K 419 of the Petitioner III. Issuance of Writ in the nature of Mandamus directing the Respondents to activate the User ID of the petitioner and also permit the Petitioner to perform all the activities which the petitioner in entitled to do in the light of Storage License issued by the Respondents. And further direct to restore the Storage License of the petitioner IV. Issuance of such other order orders direction directions relief reliefs to which the petitioner may found entitled to be passed as your Lordships may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” After the matter was heard for some time finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned i.e. 2 SCC 653 paragraphs 34 to 38 observed as under: “34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard. 35. However we note that generally speaking procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P.SCC 504] to this effect as follows:3 SCC 91] and it is not necessary for us to dwell Patna High Court CWJC No.8922 dt.07 03 2022 any further on this except to say that in issues pertaining to good governance the courts ought to be somewhat more liberal in entertaining public interest litigation. However in matters that may not be of moment or a litigation essentially directed against one organisation or individualought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such 37. In such cases that might not strictly fall in the category of public interest litigation and for which other remedies are available insofar as the issuance of a writ of mandamus is concerned this Court held in Union of India v. S.B. Vohra 2 SCC 150: 2004 SCC L&S) 363] that:directing performance of a public legal duty 13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been 38. A salutary principle or a well recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India2 SCC 630] in the following words:Vol. 11 p. 106 Demand for performance must precede application.—As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.’ 25. In the cases before us there was no such demand or refusal. Thus no ground whatsoever is shown here for the issue of any writ order or direction under Article 226 of the Constitution.” As such petition stands disposed of in the following terms: a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s) b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four Patna High Court CWJC No.8922 dt.07 03 2022 months from the date of its filing along with a copy of this order c) The order assigning reasons shall be communicated to the petitioner d) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the e) Also opportunity to place on record all relevant materials documents shall be granted to the parties f) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law g) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch Liberty reserved to the petitioner to approach the appropriate forum Court should the need so arise subsequently on the same and subsequent cause Patna High Court CWJC No.8922 dt.07 03 2022 of action i) We have not expressed any opinion on merits. All issues are left open j) The proceedings during the time of current Pandemic Covid 19 shall be conducted through digital mode unless the parties otherwise mutually agree to meet in person i.e. physical mode The petition stands disposed of in the aforesaid Interlocutory Application(s) if any stands disposed Sanjay Karol CJ) ( S. Kumar J