No writ in the nature of a mandamus would be issued when there is no failure to perform a mandatory duty: High Court of Patna
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 granted. The well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE S. KUMAR in the case of Sobhit Raut vs. The State of Bihar [Case No.3309 of 2022] on 11.03.2022. The facts of the case are that the petitioner prayed for issuance of mandamus commanding the respondent to issue specific direction for up gradation of Middle School, Parigama into High School, Parigama but the respondents contrary to its own letter issued did not upgrade the Parigama Middle School which was against the guide lines issued by the department which was in turn against the law as well as on fact. Therefore, petitioner seeks issuance of mandamus commanding the respondent to upgade the Parigama Middle School into High School on the ground that there is no High School situated near the village and all the High School are situated within 10 KM but the respondent upgraded the Middle School Chandra Sena into High School ignoring the necessity of the School of the said Panchayat. The State’s counsel opposed the petition stating that the petition is misconceived. It was further contended that the raised disputed question of fact by petitioner is not in public interest and that the issue can be best resolved at the local level by the appropriate authorities. The petitioner’s counsel stated that petitioner shall be content if a direction is issued to the authority concerned i.e. The Block Education Officer, Chouraut, Sitamarhi to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance. The Court held that the petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance and the authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing. The Court observed that, “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 granted. The well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty.”
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.33022 Sobhit Raut Son of Kari Raut Resident of Village Yogiya Parigama P.S. Chourauth District Sitamarhi ... Petitioner s The State of Bihar through Principal Secretary Education Department Government of Bihar Patna The Director Primary Education Department Government of Bihar Patna The Director High Education Department Government of Bihar The Principal Secretary Primary Education Department Government of Bihar Patna The Director Bihar Education Project Council Shiksha Bhawan Rashtbhasha Parishad Campus Saidpur Rajendranagar Patna. 04 The District Magistrate Sitamarhi District Sitamarhi The District Education Officer Sitamarhi District Sitamarhi The District Program Officer cum Convener Sarv Shiksha Abhiyan Sitamarhi District Sitamarhi The Block Education Officer Chouraut District Sitamarhi 10. The Head Master of Chandra Sena Middle School District Sitamarhi ... Respondent s Mr. Birendra Kumar Advocate Smt. Shilpa Singhorder orders in the nature of a mandamus Patna High Court CWJC No.33022 dt.11 03 2022 commanding the respondent to issue specific direction for up gradation of Middle School Parigama into High School Parigama on the basis of letter no. 13680 dated 14.06.2019 but the respondents contrary to its own letter issued not up graded the Parigama Middle School which is against the guide lines issued byt eh department which is against the law as well as on fact. For issuance of an appropriate ii) order orders in the nature of a mandamus commanding the respondent to upgade the Parigama Middle School into High School on the ground that there is no High School situated near the village and all the High School are situated within 10 KM but the respondent up graded the Middle School Chandra Sena into High School ignoring the necessity of the School of the said Panchayat as well as the guidelines which is against the law as well as on fact iii) For issuance of any other consequential writ order direction to the respondents for which the petitioner is entitled the facts and circumstances o the case.” to under Learned counsel for the State opposes the petition stating that the petition is misconceived raises disputed question of fact is not in public interest and that the issue can be best resolved at the local level by the appropriate 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 Patna High Court CWJC No.33022 dt.11 03 2022 petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned i.e Respondent No. 9 The Block Education Officer Chouraut District Sitamarhi) to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the Learned counsel for the respondents states that if such a representation is filed by the petitioner the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order. Statement accepted and taken on record. The Hon’ble Supreme Court in D. N. Jeevaraj Vs Chief Secretary Government of Karnataka & Ors 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 Rural Litigation and Entitlement Kendra v. State of U.P. 1989 SuppSCC 504] to this effect as follows SCC p. 515 para 16 Patna High Court CWJC No.33022 dt.11 03 2022 “16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to 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. We may not be taken to have said that for public interest litigations procedural laws do not apply. At the same time 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.” 36. A considerable amount has been said about public interest litigation in R&M Trust3 SCC 91] and it is not necessary for us to dwell 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 remedies 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 SCC363] that SCC p. 160 paras 12 13 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 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 Patna High Court CWJC No.33022 dt.11 03 2022 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 granted.” 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 India 2 SCC 630] in the following words:Vol. 11 p. 106 ‘198. 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 terms: As such petition stands disposed of in the following Patna High Court CWJC No.33022 dt.11 03 2022 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 months from the date of its filing along with a copy of this order c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law e) 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 Court should the need so arise subsequently on the same and subsequent cause of action issues are left open g) We have not expressed any opinion on merits. All Patna High Court CWJC No.33022 dt.11 03 2022 h) 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 terms. Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J