Allahabad High Court
Sahbaj Khan vs State Of U.P. Through Prin. Secy. Home ... on 27 February, 2020
Bench: Anil Kumar, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 9 Case :- MISC. BENCH No. - 5558 of 2020 Petitioner :- Sahbaj Khan Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Others Counsel for Petitioner :- Pramod Kumar Pandey Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Virendra Kumar Srivastava,J.
Heard Shri Amar Nath Dubey, learned counsel for petitioner and Ms. Meera Tripathi, learned AGA for the State.
By means of the present writ petition, the petitioner has prayed for following relief:-
"issue a writ, order or direction in the nature of mandamus commanding the opposite party no.2 to restrain the opposite party no.4, not to initiate the criminal proceeding under Section 145, 146 Cr.P.C. against the petitioner, pertaining to bonafide purchased land bearing Gata No.174 area about 0.017 hectare situated in Mohalla Belhaghat, Pargana and Tehsil Sadar, District Pratapgarh in pursuance of the report dated 07.02.2020, contained as Annexure No.7 to the writ petition."
Learned counsel for the petitioner for the purpose of claiming relief submits that the petitioner is bonafide purchaser of the land in question in respect of which he has placed reliance on the document which is annexed as Annexure no.2 i.e. sale deed. He further submits that opposite party no. 5 has purchased another land over which she has started construction. However, opposite party no. 5 proceeded to construct over the land which was not purchased by her and as a matter of fact, she has proceeded to construct over the land which is excess land to the purchased land, in respect of which sale deed has been prepared and the fact is evident from the report submitted by respondent No.4- S.I. Rajendra Singh, P.S.- Kotwali Nagar, Pratapgarh (Annexure 7 to the writ petition).
Needless to mention herein that the learned counsel for the petitioner, on the basis of averments made in report submitted by respondent No.4 (annexed as Annexure No.7 to the writ petition), submits that in the said report the respondent No.4 has categorically stated that the respondent No.5 is proceeding to construct in excess to land which has been purchased by her. So in view of the said fact the O.P. No.4 may be restrained from taking any action against the petitioner by invoking the provision as provided u/s 145, 146 Cr.P.C., in pursuance of report dated 7.2.2020, against the petitioner pertaining to bona fide purchaser of land bearing Gata No.174, area about 0.017 hectare situated in Mohalla Belhaghat, Pargana and Tehsil Sadar, District Pratapgarh.
From perusal of report dated 7.2.2020, submitted by respondent No.4, a position emerges to the effect as stated hereinbelow:-
"Jheku~ th Jherh iq"ik nsoh ds i{k }kjk mRrj nf{k.k 80 QhV o iwjc if'pe 51 QhV dh cSukek@jftLVªh djkbZ x;h Fkh ftuds }kjk mRrj nf{k.k 80 QhV o iwjc if'pe 67 QhV ij edku ds fuekZ.k dk dk;Z vkjEHk fd;k x;k o vius [email protected]/khu edku ds if'pe 'kgckt [kku dk IykV tks [kkyh gS dks Hkh viuk crkdj dCtk djus dk iz;kl fd;k tkrk jgk gS [kkyh IykV 'kgckt [kku dks uD'kk utjh esa ,] ch] lh] Mh o Jherh iq"ik nsoh ds IykV fuekZ.kk/khu edku dks Mh] bZ] ,Q] th ls iznf'kZr fd;k x;k gS 'kgckt [kku ds uke jftLVªh'kqnk IykV dks layXu uD'kk utjh esa , ch lh Mh ls iznf'kZr fd;k x;k gS o Jherh iq"ik nsoh ds [email protected]/khu edku dks Mh] bZ] ,Q] th iznf'kZr fd;k x;k gS nksuksa IykV ds nf{k.k esa iDdk ekxZ tks iwjc eathr uxj o if'pe vgen uxj dks tkrk gS fLFkr gS ftlds nf{k.k if'pe ls iwjc edkukr Jh lS;nmn~nhu dqjS'kh o gkfle vyh ds fLFkr gSa ftuds njokts tkfuc mRRkj lkoZtfud ekxZ yxs gSa o 'kgckt [kku ds IykV ds mRrj edku QS;kt ckcw mlds iwjc edku Jherh 'kkfUr nsoh dk fLFkr gS 'kgckt [kku ds IykV ds if'pe edku Jherh uxhuk ckcw iRuh ekS0 'keu iq= ekS= lyhe dk fLFkr gS njoktk tkfuc if'pe yxk gS Jherh iq"ik nsoh ds [email protected]/khu edku ds iwjc lkoZtfud ekxZ tkfuc mRRkj tkrk gS ds iwjc dks edku Jh vkbZ0ih0 flag dk fLFkr gSA Jheku th] mijksDr Hkwfe tks uD'kk utjh esa ,-,p-bZ-Mh- yEckbZ 80 QhV pkSM+kbZ 18 QhV ls iznf'kZr gS ds dCts dks ysdj nksuksa i{kksa esa vkil esa yM+dj gR;k tSlh laxhu ?kVuk dh lEHkkouk ls budkj ugha fd;k tk ldrk gSA vr% Jheku th ls izkFkZuk gS fd nksuksa i{kksa dks U;k;ky; esa ;Fkk 'kh?kz ryc dj lekIr eqdnek fd;s tkus rFkk nkSjkus fopkj.k eqdnek 'kkfUr O;oLFkk cuk;s j[kus gsrq mijksDr Hkwfe dks fdlh rhljs i{k dks lqiqnZ fd;s tkus ds lEcU/k esa vkns'k ikfjr fd;s tkus dh d`ik djsaA"
Before adjudicating and deciding the controversy involved in the present case, we feel appropriate to decide that under what circumstances, the writ of mandamus can be issued.
"Mandamus" is a Latin word. Literally, it means a "command" or an "order" which directs a person or authority to whom it is addressed to perform the public duty imposed on him or on it.
Mandamus is English origin. The direction in the Magna Carta that the Crown was bound neither to deny justice to anybody nor to delay anybody in obtaining justice has been recognized by this writ. The first reported case of mandamus was the Middleton's Case (1574) 3 Dyer 332b in 1573 wherein a citizen's franchise was restored. James Bagg (1615) 11 Co Rep 93b was the leading decision by which a membership of local body was restored to the applicant.
The first reported case was in 1775 R. v. Warren Hastings, (1775) 1 ID (05) 1005, where mandamus was sought against the supreme Council of the Governor General. Statutory recognition to grant mandamus was granted by section 50 of the Specific Relief Act, 1877. In Tan Bug Taim V. Collector AIR 1946 Bom 216, an order requisitioning property was held ultra vires. The words "any law" were interpreted as wide enough to include all kind of law, statutory or otherwise.
After the commencement of the Constitution, the Supreme Court is empowered under Article 32 to issue mandamus for the enforcement of fundamental rights, while every High Court has power to issue mandamus under Article 226 for the enforcement of fundamental rights and also for "any other purpose" throughout the territories in relation to which it exercises jurisdiction.
Mandamus differs from prohibition and certiorari in that, while the former can be issued against administrative authority, the latter are available against judicial and quasi-judicial authorities. Certiorari acts where the courts and tribunal usurp jurisdiction vested in them or exceed their jurisdiction. Whereas mandamus demands activity, prohibition commands inactivity. While mandamus compels, certiorari corrects.
A writ of mandamus is an extraordinary remedy. It is not a writ of right. It is intended to supply deficiency in law and is thus a discretionary remedy. A court may refuse to issue mandamus unless it is shown that there is clear right of the applicant or statutory or common-law duty of the respondent and there is no alternative remedy available to the applicant. Like any other discretion, however, discretion to issue mandamus also must be exercised fairly reasonably and on well-established legal principles.
In Corpus Juris Secundum Vol 55, 5 (See Halsbury's Laws of England, Vol. 1 (4th Edn.) paras 89 III), mandamus is defined thus:
"Mandamus is a writ directed to a person, officer, corporation or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law."
Thus it is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the constitution or by any other law (See State of Mysore v. K. N. Chandrasekhara, AIR 1965 SC 532) and it is a judicial remedy which is in the form of an order from a superior court (the Supreme Court or a High Court) to any government, court, corporation or the public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty.
While mandamus may require performance of duty, it is command is never to act in a particular manner. Mandamus cannot be used to substitute a judgment or direction of the court for that of the authority against whom it is issued.
The primary object of mandamus is to supply defect of justice. It seeks to protect rights of a citizen by requiring enforcement and fulfillment of imperative duty created by law. It thus promotes justice. It should therefore, be used at all occasions where the law has conferred right but has created no specific remedy. Through this writ , a court can correct all errors which trend to the oppression of the subject and grant him appropriate relief.
The main function of Mandamus is to compel action. It neither creates nor confers power to act. It only commands the exercise of power already existing when it is the duty of the person or authority proceeded against to act.
Remedy in mandamus is equitable in nature and its issuance is largely controlled by equitable considerations. It can only be issued to prevent injustice. A court will consider whether issuance of mandamus would promote substantial justice or perpetuate injustice. "writ of mandamus will not be granted where harm than good will result from its issuance." (See Wade & Forsyth, Administration Law (2009) 524).
A writ of mandamus can be issued if the following conditions are satisfied by the petitioner:
The petitioner must have a legal right. This is a condition precedent. It is elementary that no one can ask for mandamus without a legal right. There must be legally protected and judicially enforceable right before an applicant may claim mandamus. A person can be said to be aggrieved to do something or to abstain from doing something. The existence of right is thus the foundation of the jurisdiction of a writ court to issue mandamus. (See Umakant Saran v. State of Bihar, (1973) 1 SCC 485).
Hon'ble the Apex Court in Praga Tools corpn. V. Imanual (1969) 1 SCC 585 (Praga Tools Corpn.) held that "the condition precedent for the issue of mandamus is that there is in it one claiming a legal right to the performance of the legal duty by one against whom it is sought".
In Mani Subrat Jain V. State of Haryana (1977) 1 SCC 486, the Apex Court held that "it is elementary though it is be restated that no one can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected interest before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something".
Applicant approaching a writ court must show that he himself has legal right which can be enforced. If he is not directly or substantially affected, he cannot maintain a petition of mandamus. (See Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41).
The second requirement for a writ of mandamus is that the opposite party must have a legal duty to be performed. A legal duty must have been imposed on the authority by the constitution, a statute or by common law and the performance of that duty should be imperative, not discretionary or optional. There must be in the applicant a right to compel the performance of some duty cast on the opponent. (See State of MP. v. G. C. Mandawar, AIR 1954 SC 493)."
Reverting to the fact of the present case it is submitted by the learned counsel for the petitioner that the police authority has submitted a report to the competent authority to initiate proceeding u/s 145/146 Cr.P.C., however, from the pleadings as taken in the present petition, it is nowhere pleaded that the said report has been sent to the respondent No.3, Sub-Divisional Magistrate, Sadar, Pratapgarh.
In view of the said fact as well as as per law stated hereinabove, the relief, as claimed by the petitioner, cannot be granted as the respondent No.3 Sub-Divisional Magistrate, Sadar, Pratapgarh, is the competent authority to initiate the proceeding u/s 145/146 and not the respondent No.4, Incharge Inspector, Kotwali Nagar, District Pratapgarh.
Thus in view of the fact of the present case, the present writ petition is nothing but an abuse of process of law with malafide intention.
For the foregoing reasons the writ petition lacks merit and is accordingly dismissed.
Order Date :- 27.2.2020 Vandana