Writ of Mandamus and its Procedure The Latin term Mandamus denotes “we command”. The writ of mandamus is an order issued by the Supreme...
Writ
of Mandamus and its Procedure
The Latin term Mandamus denotes “we command”. The writ of mandamus is an order issued by
the Supreme Court or the High Court to lower courts, tribunal, or to any public
authority for the performance of their public or statutory duty. Where any
organ of government or court, corporation, or even public authority fails to
perform its duty, the writ of command, that is, the Writ of Mandamus is issued.
The writ of Mandamus is also issued to rectify past
acts or omissions committed by courts or public authorities. Black’s law dictionary defines writ of mandamus as the command which is issued against an
inferior court, or to any organ of government in order to ascertain actions
along with the lines of responsibility they are entitled to perform. This writ is available against any local
authority or an administrative body and it can be imposed upon any individual upon
whom a statutory duty was imposed or who had to perform a particular act in
accordance with common law.
The Supreme Court of India in the case of State
of West Bengal v/s Nuruddin observed that Mandamus compels the
performance of an obligation resting upon the person to whom it is issued. It
is an element of remedy available for the enforcement of the duty of an
individual assigned by common law where such individual has neglected or
refused to perform his duty. The step-up by the court of law is reflected when
there is an illegal, improper, or unlawful exercise of power by an authority.
However, in the case of statutory authority, the court can only direct the
appropriate authority to take necessary action and in no case, it can take the
decision itself. Also, in the case of Comptroller
and Auditor General of India vs. K.S Jagannathan, the Supreme Court
held that the High Courts can pass orders or give directions in its discretion
when the government or appropriate authority has failed to exercise their
powers. In order to prevent injustice to any person, the High Court in the
exercise of its jurisdiction under Article 226 of the Constitution of India,
issues the writ of mandamus to compel the performance of legal duty in a lawful manner and also, the decision which was to be passed by the government or
appropriate authority can be passed by the High Court in its discretion.
Writ of Mandamus is further divided into three
parts; the alternative Mandamus, Peremptory Mandamus, and Continuing
Mandamus. In the first case, the
defendant is required by the court of law to execute the required act or an
appearance is issued for his justification of non-compliance with his duty. In
Peremptory Mandamus, the defendant is asked by the court of law to demonstrate
the grounds of his action of non-compliance with alternative mandamus. Lastly,
a continuing mandamus is issued for requesting the lower public authority to
perform its required actions and prevent the miscarriage of justice in all
cases.
The Writ of Mandamus lies in the following cases;-
· When illegal tax has been collected by the state government, a writ of mandamus can
be issued against them.
· When
a candidate for university examinations appears for the examination in
accordance with certain regulations, which are subsequently altered after the
examination resulting in disadvantage to the candidature; such aggrieved person
can approach the court of law for the issuance of a writ in the nature of
mandamus.
· In
case of refusal by the Income Tax Officer of compliance of the order passed by
the Income Tax Appellate Tribunal, a writ under article 226 can be issued to
carry out the appellate order.
· In
case of promotion of junior superseding senior which is in violation of the
Constitution, the order of promotion passed by the government can be quashed by
the court of law and also directions to reconsider the appointment be made in
exercise of the writ issuing power of the court.
The procedure to file a writ of mandamus is very
simple. Firstly, the aggrieved person must appoint a lawyer and mention to him
all the facts and circumstances of the case. The lawyer will then draft the
petition in accordance with rules of framing of the writ petition issued by the
High Court. After drafting, a minimal cost fee of not more than a hundred
rupees is to fixed and filed in the filing corner of the High Court. Then, the
matter will be listed for a future date and the lawyer will plead the case
before the judge or judges, who will either admit or reject the petition. In
case, they admit and issue a notice of motion to the respondents, they have to
appear before the judges and give an explanation as to the facts of the case.
At the last date of hearing, the facts of the petition will be considered after
hearing both sides and consequently, relief will be granted in accordance with
the law. It must be noted that in case of admission of the petition, the fact
does not constitute that relief will be granted. It only means that the High
Court considers the case worth hearing and demands proper proceeding but in
case the High Court rejects the petition on the first date of hearing, it means the end of this route of relief.
In conclusion, it can be said that a writ of
mandamus is issued to give relief from the state in-action, especially where it
has failed to perform its legal duties or secure the citizens against arbitrary
actions
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