Madras High Court
Dr.Ambedkar Mandram ? Thiruchuli vs The District Collector on 11 April, 2016
Bench: S.Manikumar, S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.04.2016
CORAM
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
and
THE HONOURABLE Mr.JUSTICE S.S.SUNDAR
Writ Appeal (MD)No.549 of 2016
Dr.Ambedkar Mandram ? Thiruchuli,
rep.by its President M.Murugan,
East Street, Govt.Hospital Road,
Thiruchuli, Virudhunagar-District. ... Appellant/
Petitioner
Vs.
1.The District Collector,
Virudhunagar District,
Virudhunagar.
2.The Superintendent of Police,
Virudhunagar District,
Virudhunagar.
3.The Revenue Divisional Officer,
Aruppukottai,
Virudhunagar District.
4.The Tahsidlar,
Tiruchuli Taluk,
Virudhunagar District.
5.Inspector of Police,
Thiruchuli Police Station,
Thiruchuli, Virudhunagar District. ... Respondents/
Respondents
Writ Appeal filed under Clause 15 of Letters Patent, against the order
of the learned Single Judge, dated 28.03.2016, made in W.P.(MD)No.16212 of
2015.
!For Appellant : Mr.R.Singaravelan,
Senior Counsel for
Mr.D.Selvanayagam.
^For Respondents : Mr.K.Chellapandian,
Addl.Advocate General,
assisted by
Mr.D.Muruganandam,
Spl.Govt.Pleader.
:JUDGMENT
(Order of the Court was made by S.MANIKUMAR, J) Challenge in this appeal, made by Dr.Ambedkar Mandram, Thiruchuli, rep.by its President M.Murugan, is to the order, dated 28.03.2016, made in W.P.(MD)No.16212 of 2015, by which, a learned Single Judge, while declining to issue a writ of mandamus, directing the District Collector and the Superintendent of Police, Virudhunagar District, the respondents 1 and 2 therein, to grant permission for installation of Dr.Ambedkar's Bronze Statue in Dr.Ambedkar Ground, Thiruchuli, Virudhunagar District, has granted liberty to the appellant/petitioner to approach the Government for necessary orders, in terms of G.O.Ms.No.186, Municipal Administration and Water Supply (Tha.Ni.5) Department, dated 21.09.1998 and G.O.Ms.No.248, Rural Development (C2) Department, dated 23.11.1998.
2.Material on record discloses that pursuant to the above said order, a petition, dated 05.04.2016, is said to have been given to the Secretary to the Government, Rural Development and Panchayat Raj Department, Government of Tamil Nadu, seeking permission for installation of a statue, in terms of the order of the learned Single Judge and that the same is stated to be pending.
3.Mandamus sought for is against the District Collector and the Superintendent of Police, Virudhunagar District. Though Mr.R.Singaravelan, learned Senior Counsel appearing for the appellant, has relied on a previous order by a Hon'ble Division Bench of this Court in W.P.(MD)No.5630 of 2015, dated 13.04.2015, to which one of us (SMKJ) was a party and further contended that some of the occupants, in and around the survey number in which the bronze statue is sought to be installed, have been granted patta, we are not inclined to delve into the aforesaid contentions, for the reason that as per the Government Orders mentioned supra, for installation of a statue, permission has to be obtained from the competent authority, namely, Secretary to the Government Rural Development and Panchayat Raj Department. As already stated, the appellant/petitioner has filed a petition before the Government seeking permission and it is pending.
4.Admittedly, the appellant has no right to seek for a mandamus against the District Collector and the Superintendent of Police, Virudhunagar District, when they are not the competent authorities to grant any permission. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled in a series of decisions.
(a) In Comptroller and Auditor General of India vs. K.S.Jegannathan, reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Honourable Apex Court referred to Halsbury's Laws of England 4th Edition, Vol.I. Paragraph 89, about the efficacy of mandamus:
?89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.?
(b) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows:
?10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....?
(c) In the decision reported in (2004) 2 SCC 150 (Union of India v.
S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
(d) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus:
?11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well- settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.
Note 206.- ... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.
12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh ? (1977) 4 SCC 145, after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v.
N.M. Shah ? AIR 1966 SC 334, Rai Shivendra Bahadur (Dr.) v. Nalanda College ? AIR 1962 SC 1210 and Umakant Saran (Dr.) v. State of Bihar ? (1973) 1 SCC 485, this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp. 152-53)
15. ... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.... In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 the Constitution and the High Court was not competent to issue the same.
Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities....?
5.In such view of the matter, the relief sought for by the appellant/petitioner cannot be granted against the respondents. If at all the appellant has any right, under the above said Government Orders, he can enforce it only against the Secretary to the Government, Rural Development and Panchayat Raj Department, and he has chosen to do so. When mandamus cannot be issued against the District Collector and the Superintendent of Police, who have no authority to grant permission, consequently, the grounds of challenge made in this appeal are not tenable in law.
6.In the light of the decisions cited supra and discussions made, the appeal is dismissed. No order as to costs. However, the Secretary to the Government Rural Development and Panchayat Raj Department, Government of Tamil Nadu, Chennai-9, is directed to dispose of the petition, dated 05.04.2016, submitted by the appellant within a period of two months from the date of receipt of a copy of this order. The appellant is at liberty to place all materials in support of his claim. The Secretary to the Government is directed to dispose of the petition, on merits and in accordance with the Government Orders, without reference to the observation made by the writ court.
To
1.The Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Fort St.George, Chennai-9.
2.The District Collector, Virudhunagar District, Virudhunagar.
3.The Superintendent of Police, Virudhunagar District, Virudhunagar.
4.The Revenue Divisional Officer, Aruppukottai, Virudhunagar District.
5.The Tahsidlar, Tiruchuli Taluk, Virudhunagar District.
6.Inspector of Police, Thiruchuli Police Station, Thiruchuli, Virudhunagar District..