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    Writ (Certiorari, Mandamus)

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    Himanshu Gautam

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    Writ (Certiorari, Mandamus)

    Uploaded by

    Himanshu Gautam
    1 views5 pages

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    © © All Rights Reserved

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    1 views5 pages

    Writ (Certiorari, Mandamus)

    Uploaded by

    Himanshu Gautam

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 5

    Writ (Certiorari, Mandamus)

    Ques - Discuss the conditions and grounds for issuing writ of


    Mandamus. Can it be issued against private bodies? Discuss with
    the help of decided cases.

    Ans. The writ of mandamus (literally meaning, We Command) is a high


    prerogative writ of a most extensive remedial nature. In its original form, it
    was a command issued in the king's name from the king's Bench Division of
    the High Court of Justice and directed to any person, corporation, or inferior
    Court of Judicature, requiring him to do something stated therein relating to
    his office and which the Court felt was in the interests of justice.

    At present, it is used principally for public purposes and to compel the


    performance of public duties. It is used as a command by the superior court
    like Supreme Court or the High Courts to the government, inferior court,
    tribunal, public authority, corporation or person to perform a public duty or
    refrain from performing any action that is prima facie unlawful and is likely to
    result in damage. Therefore, it has a both negative and positive aspects and
    hence can-do work of all other writs. It can be issued on all those grounds on
    which Certiorari and Prohibition can be issued. It is command for performing
    an act which appertains to his or their office and is in the nature of public
    duty.

    The duty enjoined in the order must be imposed by the Constitution and
    must have the force of law. Thus, the writ of mandamus does not apply in
    case of a company, incorporated under the Companies Act, as it has got
    neither a statutory or public duty to perform. It is, however, also used to
    enforce private rights when they are withheld by public officers.

    The main object of this writ is to compel the performance of statutory or


    public duties as also to keep the subordinate authorities to perform their
    functions within the limits prescribed by the State. Hence, it is a directive
    against the excessive exercise of authority by the executive and also the
    subordinate branches of power. It can be issued to any authority exercising
    public functioning, like, administrative, legislative, judicial or quasi-judicial.

    Mandamus acts where the authority declines jurisdiction.

    It is considered as a residuary remedy of the public law.

    Against whom Mandamus would Lie


    It is to be noted that mandamus lies, not only against executive authorities,
    but also against judicial and quasi-judicial authorities. Thus, a writ of
    mandamus is available against Parliament, Legislature, Courts and Tribunals,
    Government and its officers and against local authorities.

    Against whom Mandamus would not Lie

    A writ of Mandamus will not lie against the following classes of persons:

    (i) The President or the Governor.

    (ii) The High Court or a Judge of the High Court, acting in a Judicial (as
    distinguished from administrative) Capacity.

    (iii) Central or State Legislature.

    (iv) Persons who do not hold public offices.

    (v) A Company registered under the Companies Act, even if it is a


    "government company" as defined in that Act, unless it is an agency or
    instrumentality of the Government.

    Conditions for the Grant of Mandamus

    The Four conditions to be satisfied before a writ of mandamus can be issued


    are:

    (i) The Petitioner must show that he has a legal right to obtain performance
    of a legal duty.

    (ii) Such a duty must be one which is imposed by the Constitution or any
    other law (but not under a contract).

    (iii) Such a duty must be a ministerial duty and not discretionary in nature.

    (iv) The right which is claimed should be judicially enforceable right.

    Thus, the writ of mandamus can be issued to any authority exercising public
    functioning. Thus, it can be issued to any authority whether it exercises
    administrative, legislative, judicial or quasi-judicial functioning. The Court
    cannot issue mandamus to the Legislature to make law retrospectively.

    The High Court can invoke mandamus for purposes other than enforcement
    of fundamental rights, some of which are:
    1. To enforce the performance of a statutory duty where the public officer has
    got a power conferred by the Constitution or a statute. The Court may issue
    a mandamus directing him to exercise the power in case he refuses to do it.

    2. To compel a Court or Judicial Tribunal to exercise its jurisdiction when it has


    refused to exercise it.

    3. To direct a public official or the government not to enforce a law that is


    unconstitutional.

    Whether Mandamus can be Issued against Private Bodies

    In Anadi Mukta Sadguru Trust v. V.R. Rudani, AIR 1989 SC 1607, the
    issue was whether the writ of Mandamus can be issued against any
    individual or private body? On this, the Supreme Court held that:

    If the rights are purely of a private character, no Mandamus can be issued. If


    the management of the college is a private body with no public duty,
    Mandamus will not lie. These are the two exceptions to Mandamus. But if
    these are absent and the party has no other equally convenient remedy
    Mandamus cannot be denied. The appellant trust was managing the affiliated
    college to which public money was paid as government aid. Public money
    paid as the government aid plays a major role in control, maintenance and
    working of educational institutions. The aided institutions like government
    institutions discharge 'public function' by imparting education to students.
    They are subject to rules and regulations of the affiliating university.
    Employment in such institutions, therefore, is of public character. There is a
    legal right- duty relationship between the staff and the management and
    thus Mandamus can't be refused.

    Ques - Can the High Court issue a writ of Mandamus against any
    person, not strictly State, but performing a public duty?

    Ans - The writ of mandamus cannot be issued against a private individual or


    private body unless the private individual or the private, body has been
    vested with a statutory or public duty in Praga Tools Corpn. v. Imanual, AIR
    1969 SC 1306.

    Curative petition

    In Rupa Ashok Hurra v. Ashok Hurra, a five-Judge Constitution Bench of


    the Supreme Court has unanimously held that after dismissal of a case in
    exercise of review jurisdiction under Article 137 of the Constitution, by way of
    circulation, a curative petition can be filed under the inherent jurisdiction of
    the Court to prevent abuse of its process and cure gross miscarriage of
    justice. Thus, it can be said that a curative petition is the last judicial
    corrective measure that can be pleaded for in any judgment or decision
    passed by the Supreme Court which is normally decided by Judges in the
    chamber. It is only in rare cases that such petitions are given an open-Court
    hearing. Therefore, it is considered the last and final option available for
    redressal of grievances.

    The objective behind allowing such a petition is only to minimize any abuse
    of the processes of law and to cure gross miscarriages and lapses in the
    system of justice.

    The inherent power of the Supreme Court under Article 142 of the
    Constitution of India empowers the review of the final decision of the Court if
    the same is resulting in the miscarriage of justice. Article 137 of the
    Constitution grants the power of review to the Supreme Court. Such power is
    not provided anywhere else in the Constitution. The Supreme Court has
    defined review to mean re-examining or reconsidering a final decision.

    Grounds for Filing a Curative Petition

    The grounds for filing curative petition are as follows: -

    (1) Upon a violation of principles of natural justice, meaning thereby, the


    aggrieved party filing a curative petition was not a party to the 'lis' but the
    interest of the party was adversely affected by the judgment or if he was a
    party to the 'lis', the notice of the proceeding was not served upon him and
    the proceeding of the matter continued as if he had the notice.

    (2) Where a learned Judge in the proceeding failed to bring out his
    connection pertinent to subject-matter or the parties, opening the scope for
    an apprehension of bias and the petitioner is adversely affected.

    (3) The petition shall contain specifically that no new grounds have been
    taken and the grounds mentioned in the petition had been taken in the
    application for review, which was dismissed by circulation.

    (4) The petition shall be accompanied by-

    (i) a certificate of the senior advocate that the petition meets the
    requirements delineated in the case mentioned in clause (1) above;
    (ii) a certified or authenticated copy of the judgment or order complained of;
    and

    (iii) a certificate of the advocate on-record to the effect that it is the first
    curative petition in the impugned matter.

    From above discussion, it can be said that the evolution of the concept of
    Curative Petition is based on the premise that if because of the limitation of
    human fallibility, miscarriage of justice occurs then the same should be
    rectified and not drown itself in the effervescence of principle of finality of
    judgment embedded under the notion of certainty of law. The apex court has
    followed a balanced approach so as to prevent floodgates from opening and
    ensuring adequate caveats so as to tackle frivolous or vexatious petitions
    and also making a clear demarcation between a 'Review Petition' and
    'Curative Petition'. The Doctrine of Ex Debito Justitiae clubbed with the
    Inherent Powers of the Court has entitled the petitioner to avail this remedy
    of last resort in the rarest of rare cases.

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