writ of mandamus
This query is : Resolved
03 November 2010
please explain what is writ of mandamus and writ of certiorai ???
rahul
rahul
03 November 2010
The literal meaning of the word 'mandamus' is to command. it is a juridical remedy in the form of a command or order from supreme court or a High court to any constitutional, statutory or a non statutory agency to do or to forbear from doing some specific act, which that agency is obliged to do or refrain from doing under the law and which is in the nature of a public duty or a statutory duty.
under the constitution of India, such power of writ jurisdiction is vested with supreme court under article 32 and with the high court under article 226.
the writ of mandamus would not lie against the President of India and Governor of the state, private individuals or private body except where the state in collusions with the private party, any member of parliament or state legislature in whom powers are vested for regulating procedure or the conduct of the business of for maintaining orders
conditions which must exist in order to grant the writ of Mandamus:
1. there must be performance of public duties. A public duty is one which created either by statute, the constitution or by some rule of common law. but does not lie on where the duty is ministerial in nature. A ministerial duty is one where the authority has to act on the instructions of his superiors. so mandamus not apply on administrative direction unless they are binding by law
2.Mandamus lie against person or body whose duty is must be a public official or an official body, means any company constituted under a statute for the purpose of compelling it to fulfill its public responsibilities.
3. there must be a specific demand of duty and a refusal by the authority
4.Applicant should have the right to enforce the duty till the date of the petition.
it means there is a statute which imposes a legal duty and aggrieved party has the legal right under the statute to enforce its performance.
Grounds on which it can issue
1.Mandamus can be issued on all those ground on which certiorari and prohibition can be issued.
such as
1.lack of jurisdiction
2. excess of jurisdiction
3. abuse jurisdiction
4.violation of principles of natural justice
5. error of law apparent on the face of record.
It is a discretionary remedy and the high court may refuse to issue writ, if alternative remedy exist except in case of infringement of a fundamental right.
under the constitution of India, such power of writ jurisdiction is vested with supreme court under article 32 and with the high court under article 226.
the writ of mandamus would not lie against the President of India and Governor of the state, private individuals or private body except where the state in collusions with the private party, any member of parliament or state legislature in whom powers are vested for regulating procedure or the conduct of the business of for maintaining orders
conditions which must exist in order to grant the writ of Mandamus:
1. there must be performance of public duties. A public duty is one which created either by statute, the constitution or by some rule of common law. but does not lie on where the duty is ministerial in nature. A ministerial duty is one where the authority has to act on the instructions of his superiors. so mandamus not apply on administrative direction unless they are binding by law
2.Mandamus lie against person or body whose duty is must be a public official or an official body, means any company constituted under a statute for the purpose of compelling it to fulfill its public responsibilities.
3. there must be a specific demand of duty and a refusal by the authority
4.Applicant should have the right to enforce the duty till the date of the petition.
it means there is a statute which imposes a legal duty and aggrieved party has the legal right under the statute to enforce its performance.
Grounds on which it can issue
1.Mandamus can be issued on all those ground on which certiorari and prohibition can be issued.
such as
1.lack of jurisdiction
2. excess of jurisdiction
3. abuse jurisdiction
4.violation of principles of natural justice
5. error of law apparent on the face of record.
It is a discretionary remedy and the high court may refuse to issue writ, if alternative remedy exist except in case of infringement of a fundamental right.
03 November 2010
Pl see https://en.wikipedia.org/wiki/Certiorari
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