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Writ of Mandamus and its Procedure

  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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