A full Bench of this Court in the case reported as Rita Mishra
and others Vs. Director, Primary Education, Bihar and others, 1987 PLJR
1090 has discussed as to when writ of mandamus would lie. The Full
Bench relied upon the Supreme Court judgment reported as Lekhraj
Sathramdas Lalvani v. Deputy Custodian-cum-Managing Officer,
Bombay, A.I.R. 1966 SC 334 to return the following finding:-
“25A. The primary scope and function of writ of mandamus
has been pithily expressed in the phrase that this writ is issued to
command and execute; and not to inquire and adjudicate. It is not to
establish a legal right but to enforce one. It is only where the legal public
duty is clear, unqualified and specific that a writ of mandamus can be truly
claimed. It is not to be granted where the claim of the petitioner has, in
fact, to be first established and adjudicated upon before it can be enforced.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.60 of 1990
Prahalad Ray Puranmalka
V
The State of Bihar.
CORAM: THE ACTING CHIEF JUSTICE
And
JUSTICE SMT. ANJANA MISHRA
And
MR. JUSTICE SUDHIR SINGH
Date: 17-01-2017.
Citation: AIR 2017 Patna 33
None is present on behalf of the petitioners.
2. The petitioners have sought a writ of mandamus directing
the respondents to remove the encroachments on a portion of municipal
road by respondent nos. 4 to 8 as such encroachment causes discomfort
and annoyance to the petitioners and that the petitioners have been
sustaining pecuniary loss due to unauthorized occupation of the
respondent nos. 4 to 8.
3. The matter has been referred to the Full Bench on the
question as to whether a writ of mandamus can be issued to direct the
respondent no.2 to remove the alleged encroachment without following
the procedure prescribed under law.
4. A full Bench of this Court in the case reported as Rita Mishra
and others Vs. Director, Primary Education, Bihar and others, 1987 PLJR
1090 has discussed as to when writ of mandamus would lie. The Full
Bench relied upon the Supreme Court judgment reported as Lekhraj
Sathramdas Lalvani v. Deputy Custodian-cum-Managing Officer,
Bombay, A.I.R. 1966 SC 334 to return the following finding:-
“25A. The primary scope and function of writ of mandamus
has been pithily expressed in the phrase that this writ is issued to
command and execute; and not to inquire and adjudicate. It is not to
establish a legal right but to enforce one. It is only where the legal public
duty is clear, unqualified and specific that a writ of mandamus can be truly
claimed. It is not to be granted where the claim of the petitioner has, in
fact, to be first established and adjudicated upon before it can be enforced.
As in the present case, a frontal challenge is laid to the petitioner’s claim
on every aspect and the averments on their behalf are sought to be
controverted at every step. It is manifest that first the petitioners’ claim
has to be gone into, adjudicated and then established. That obviously is not
the scope of a writ of mandamus. Ferris in the Law of Extraordinary Legal
Remedies has said:-
“The office of mandamus is to execute, not
adjudicate. It does not ascertain or adjust mutual claims or
rights between the parties. If the right be doubtful, it must be
first established in some other form of action; mandamus will
not lie to establish as well as enforce a claim of uncertain
merit. It follows, therefore, that mandamus will not be granted
where the right is doubtful”.
Equally instructive it is to notice the scope and nature of a writ
of mandamus authoritatively described as follows in Halsbury’s Laws of
England:-
“The order of mandamus is an order of a most
extensive remedial nature, and is, in form, a command issuing
from the High Court of Justice, directed to any person,
corporation, or inferior tribunal, requiring him or them to do
some particular thing therein specified which appertains to his
or their office and is in the nature of a public duty.”
The statement of the law on the scope of mandamus in Corpus
Juris Secundum is-
“…….. as a writ commanding the performance of
an act which the law specifically enjoins as a duty resulting
from an office, trust, or station. It is a proceeding to compel
someone to perform some duty which the law imposes on him,
and the writ may prohibit the doing of a thing, as well as
command it to be done.
26. It is evident from the authoritative exposition of the law
that the sine qua non for the issuance of a writ of mandamus is the
existence of a statutory or a public duty devolving upon the person or the
body against whom or which the said writ is directed. Equally settled it is
that along with this must co exist a corresponding right in the petitioners
who were entitled to claim the enforcement of the said statutory public
duty. Unless these two preconditions are satisfied, the requisite foundation
for the issuance of a writ of mandamus can hardly be said to exist.
Applying the twin test in the present context, I am of the view that neither
one stands satisfied. The learned counsel for the petitioners were wholly
unable to pinpoint even a single statutory provision which imposed upon
the respondents any statutory public duty to pay the salary, where the very
appointment of the petitioners may well be forged, fraudulent or illegal.
Equally no provision can possibly be pointed out which would inhere in
the petitioners an established enforceable right to the relief which they
seek to claim.”
5. In view of the test laid down in Rita Mishra’s case, the writ
of mandamus is issued to command and execute and not to enquire and
adjudicate. The question as to whether the Respondent Nos. 4 to 8 are
unauthorized occupant on a public land requires inquiry and adjudication.
The legal right has to be established first and then, the question of
enforcement arises.
6. There is adequate efficacious summary procedure established
under Bihar Public Land Encroachment Act, 1956 for eviction of
unauthorized occupants. The competent authority under the said Act has a
power to enquire and adjudicate and then to order eviction. Therefore,
writ of mandamus would not be maintainable where a fact of
unauthorized possession is required to be inquired into and to be
adjudicated upon. It is only in the case of enforcement of legal right and
not to establish a legal right, the writ of mandamus would be
maintainable.
7. Having said so, it may be noticed that it is open to this
Court in appropriate cases to examine the nature and extent of
encroachment and the nature of the land said to be encroached to
invoke the jurisdiction of this Court so as to compel the authorities to
perform the statutory duty conferred under the Act. The question of law
is answered in the above manner.
8. However, since none is present on behalf of the petitioners,
the writ petition stands dismissed for non-prosecution.
and others Vs. Director, Primary Education, Bihar and others, 1987 PLJR
1090 has discussed as to when writ of mandamus would lie. The Full
Bench relied upon the Supreme Court judgment reported as Lekhraj
Sathramdas Lalvani v. Deputy Custodian-cum-Managing Officer,
Bombay, A.I.R. 1966 SC 334 to return the following finding:-
“25A. The primary scope and function of writ of mandamus
has been pithily expressed in the phrase that this writ is issued to
command and execute; and not to inquire and adjudicate. It is not to
establish a legal right but to enforce one. It is only where the legal public
duty is clear, unqualified and specific that a writ of mandamus can be truly
claimed. It is not to be granted where the claim of the petitioner has, in
fact, to be first established and adjudicated upon before it can be enforced.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.60 of 1990
Prahalad Ray Puranmalka
V
The State of Bihar.
CORAM: THE ACTING CHIEF JUSTICE
And
JUSTICE SMT. ANJANA MISHRA
And
MR. JUSTICE SUDHIR SINGH
Date: 17-01-2017.
Citation: AIR 2017 Patna 33
None is present on behalf of the petitioners.
2. The petitioners have sought a writ of mandamus directing
the respondents to remove the encroachments on a portion of municipal
road by respondent nos. 4 to 8 as such encroachment causes discomfort
and annoyance to the petitioners and that the petitioners have been
sustaining pecuniary loss due to unauthorized occupation of the
respondent nos. 4 to 8.
3. The matter has been referred to the Full Bench on the
question as to whether a writ of mandamus can be issued to direct the
respondent no.2 to remove the alleged encroachment without following
the procedure prescribed under law.
4. A full Bench of this Court in the case reported as Rita Mishra
and others Vs. Director, Primary Education, Bihar and others, 1987 PLJR
1090 has discussed as to when writ of mandamus would lie. The Full
Bench relied upon the Supreme Court judgment reported as Lekhraj
Sathramdas Lalvani v. Deputy Custodian-cum-Managing Officer,
Bombay, A.I.R. 1966 SC 334 to return the following finding:-
“25A. The primary scope and function of writ of mandamus
has been pithily expressed in the phrase that this writ is issued to
command and execute; and not to inquire and adjudicate. It is not to
establish a legal right but to enforce one. It is only where the legal public
duty is clear, unqualified and specific that a writ of mandamus can be truly
claimed. It is not to be granted where the claim of the petitioner has, in
fact, to be first established and adjudicated upon before it can be enforced.
As in the present case, a frontal challenge is laid to the petitioner’s claim
on every aspect and the averments on their behalf are sought to be
controverted at every step. It is manifest that first the petitioners’ claim
has to be gone into, adjudicated and then established. That obviously is not
the scope of a writ of mandamus. Ferris in the Law of Extraordinary Legal
Remedies has said:-
“The office of mandamus is to execute, not
adjudicate. It does not ascertain or adjust mutual claims or
rights between the parties. If the right be doubtful, it must be
first established in some other form of action; mandamus will
not lie to establish as well as enforce a claim of uncertain
merit. It follows, therefore, that mandamus will not be granted
where the right is doubtful”.
Equally instructive it is to notice the scope and nature of a writ
of mandamus authoritatively described as follows in Halsbury’s Laws of
England:-
“The order of mandamus is an order of a most
extensive remedial nature, and is, in form, a command issuing
from the High Court of Justice, directed to any person,
corporation, or inferior tribunal, requiring him or them to do
some particular thing therein specified which appertains to his
or their office and is in the nature of a public duty.”
The statement of the law on the scope of mandamus in Corpus
Juris Secundum is-
“…….. as a writ commanding the performance of
an act which the law specifically enjoins as a duty resulting
from an office, trust, or station. It is a proceeding to compel
someone to perform some duty which the law imposes on him,
and the writ may prohibit the doing of a thing, as well as
command it to be done.
26. It is evident from the authoritative exposition of the law
that the sine qua non for the issuance of a writ of mandamus is the
existence of a statutory or a public duty devolving upon the person or the
body against whom or which the said writ is directed. Equally settled it is
that along with this must co exist a corresponding right in the petitioners
who were entitled to claim the enforcement of the said statutory public
duty. Unless these two preconditions are satisfied, the requisite foundation
for the issuance of a writ of mandamus can hardly be said to exist.
Applying the twin test in the present context, I am of the view that neither
one stands satisfied. The learned counsel for the petitioners were wholly
unable to pinpoint even a single statutory provision which imposed upon
the respondents any statutory public duty to pay the salary, where the very
appointment of the petitioners may well be forged, fraudulent or illegal.
Equally no provision can possibly be pointed out which would inhere in
the petitioners an established enforceable right to the relief which they
seek to claim.”
5. In view of the test laid down in Rita Mishra’s case, the writ
of mandamus is issued to command and execute and not to enquire and
adjudicate. The question as to whether the Respondent Nos. 4 to 8 are
unauthorized occupant on a public land requires inquiry and adjudication.
The legal right has to be established first and then, the question of
enforcement arises.
6. There is adequate efficacious summary procedure established
under Bihar Public Land Encroachment Act, 1956 for eviction of
unauthorized occupants. The competent authority under the said Act has a
power to enquire and adjudicate and then to order eviction. Therefore,
writ of mandamus would not be maintainable where a fact of
unauthorized possession is required to be inquired into and to be
adjudicated upon. It is only in the case of enforcement of legal right and
not to establish a legal right, the writ of mandamus would be
maintainable.
7. Having said so, it may be noticed that it is open to this
Court in appropriate cases to examine the nature and extent of
encroachment and the nature of the land said to be encroached to
invoke the jurisdiction of this Court so as to compel the authorities to
perform the statutory duty conferred under the Act. The question of law
is answered in the above manner.
8. However, since none is present on behalf of the petitioners,
the writ petition stands dismissed for non-prosecution.
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