The Hindu : HC order of `mandamus' set aside

Online edition of India's National Newspaper
Sunday, Apr 07, 2002

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HC order of `mandamus' set aside

By T. Padmanabha Rao

NEW DELHI APRIL 6. "In order to obtain a writ or order in the nature of `mandamus', the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition'', (in the High Court), the Supreme Court has emphasised.

"The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law''.

Delivering the judgment, Justice G.B. Pattanaik, in a case relating to payment of certain `interim payments' to the respondents under the Andhra Pradesh Estates (abolition and conversion into ryotwari) act, 1948, held that "the division bench of the High Court committed a serious error in issuing the mandamus in question (to the State authorities concerned) for enforcement of the so-called right which never subsisted on the date'' (of the writ petition in the High Court from the respondents for issue of writ of mandamus).

Allowing an appeal from the State, the Bench, which included Justices S.N. Phukan and S.N.Variava, cautioned that though the powers of the High Courts under Article 226 (writ jurisdiction) are discretionary and no limits can be placed upon their discretion, it must be exercised along recognised lines and subject to certain self-imposed limitations.

"The so-called right of the respondents, depending upon the conclusion, that the 1971 amendment to the 1948 Act is Constitutionally invalid and therefore, the right to get interim payment will continue till the final decision of the board of revenue, cannot be sustained when the Supreme Court itself has upheld the Constitutional validity of the amendment Act in Venkatagiri's case in February 1986'', the Bench noted.

"The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the Constitutionality of the amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the Act itself'', the Bench said. "The High Court, in exercise of power of issuance of `mandamus', could not have said anything contrary to that (laid down by the Apex Court in Venkatagiri case) on the ground that the earlier judgment in favour of the respondents became final, not being challenged''.

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