In a judgment delivered on Friday, the Supreme Court observed that the High Courts not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty-bound to exercise such power for the enforcement of a public duty.
In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion, the bench of Justices Indu Malhotra and Indira Banerjee said.
The dispute in this case pertains to a private road. The trust filed an application in which it requested the State Government to correct the wrong entry (as internal road to the Trust) in the name of Pune Municipal Corporation. The Urban Development Department, Government of Maharashtra rejected the proposal and held that the Pune Municipal Corporation is the owner in respect of the land. The High Court dismissed the writ petition challenging the said order passed by the Government and held that the land in question had vested under Section 88 of the Regional and Town Planning Act.
While setting aside the High Court judgment which had dismissed a writ petition filed by Hare Krishna Mandir Trust, the Court observed that admittedly the private road in question did not at any point of time belong to the Pune Municipal Corporation. On its refusal to issue mandamus to correct the wrong entry, the bench observed:
"The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority."
The court further observed:
"The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same."
"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles."
Case detailsCase no.: CIVIL APPEAL NO.6156 OF 2013 Case name: HARI KRISHNA MANDIR TRUST vs. STATE OF MAHARASHTRA Coram: Justices Indu Malhotra and Indira Banerjee Counsel: Sr. Adv Pallav Sisodia assisted by Adv Braj K Mishra for Appellants, Nishant R. Katneshwarkar for State, AdvocatesMarkand D. Adkar and Rajesh Kumar, for Corporation
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