Andhra Pradesh High Court - Amravati
Kodurupati Ravi Prasada Rao, vs The State Of Ap on 6 August, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION (PIL) NO.97 OF 2019
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) One Sri K. Kondurupati Ravi Prasada Rao, filed this petition under Article 226 of the Constitution of India, as pro bono publico, claiming to be a social worker ex-Municipal Councillor of Eluru Municipality, West Godavari District, seeking issuance of writ of mandamus to declare the action of the respondent Nos. 1 to 6 in making preparations to conduct elections to Eluru Muncipal Corporation alone without including the seven vicinity Gram Panchayats (Respondent Nos. 8 to 14), as evidenced by G.O.Ms.No.175 MA &UD (G2) Department dated 17.05.2019, Municipal Administration Department, despite the pendency of the proposal for merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) submitted by the respondent No.5/District Collector, West Godavari vide letter dated 29.09.2017 in ROC No.645/2016/G1 to respondent No.3 is pending for consideration with the government as arbitrary, illegal and violative of Articles 243Q(c), 243R, 243S, 243Z(a) of Constitution of India and consequently direct respondent Nos. 1 to 6 to postpone/defer the proposed elections to Eluru Municipal Corporation till the process of merging of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is completed.
It is alleged that, the District Collector, West Godavari District, Eluru/Respondent No.5 addressed a letter to Director of Municipal Administration, Government of A.P/Respondent No.3 vide ROC No.645/216/G1 dated 29.09.2017, with a proposal for merging 10 vicinity gram panchayts surrounding Eluru Municipal Corporation, basing on the 2 HACJ & MSM,J WP(PIL)_97 of 2019 minutes of meeting held on 27.09.2017, as merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is in the larger interest of the people of Eluru Municipal Corporation and also the said merger proposal of Gram Panchayats projected by the District Collector/Respondent No.5 is pending for approval with The Director of Municipal Administration/Respondent No.3 and Government of Andhra Pradesh/Respondent No.1. While the matter stood thus, Government of Andhra Pradesh issued G.O.Ms.No.1 Municipal Administration & Urban Development Department dated 01.01.2019 for constitution of Eluru Urban Development Authority (EUDA) with headquarters at Eluru. According to the said G.O, the Director of Town & Country Planning has requested the Government for the constitution of Eluru Urban Development Authority within the jurisdiction of 35 mandals covering 463 villages and 9 urban local bodies.
It is specifically contended that, Government of Andhra Pradesh issued G.O.Ms.No.9 Municipal Administration & Urban Development (UBS) Department dated 02.01.2017 identifying Eluru Municipal Corporation Limited as Smart City to develop the same under the State sponsored Smart City Scheme and in case, the elections are held during the pendency of merger proposal of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation, those villages will loose the benefits of Smart City Development. Therefore, the petitioner being a social worker and leader along with other elderly people of Eluru and the said seven vicinity villages on three occasions in the year 2018 approached the Director of Municipal Administration, Principal Secretary of Municipal Administration, Government of Andhra Pradesh and submitted representations for expeditious completion of merger of the said seven Gram Panchayats/Respondents 8 to 14 in Eluru Municipal 3 HACJ & MSM,J WP(PIL)_97 of 2019 Corporation. Even though the said proposal for merger of 7 Gram panchayats/Respondent Nos. 8 to 14 has been pending for approval with the Director of Municipal Administration, Government of Andhra Pradesh, G.O.Ms.No.175 MA &UD (G2) Department dated 17.05.2019 came to be issued for identification of STs, SCs, Bcs and women voters in 9 Municipal Corporations, including Eluru Municipal Corporation to conduct elections to the Municipal Corporations in the immediate near future.
It is further contended that, when Eluru Municipal Corporation/Respondent No.7 was identified and declared as Smart City to drive economic growth and improve the quality of life of the people and process of merging of seven vicinity Gram Panchayats is about to be concluded and is under active consideration of Respondent Nos. 1 & 3, the proposal to conduct elections to Eluru Municipal Corporation sans seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) will be prejudicial to the interest of the people of Eluru Municipal Corporation and seven vicinity Gram Panchayats (Respondent Nos. 8 to 14).
It is further submitted that, on 22.05.2019, the petitioner made final representation to the respondents with a request to postpone the proposal of conducting elections to Eluru Municipal Corporation only, till the merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) is completed. On 30.05.2019, the petitioner got issued legal notice to Respondent Nos. 1 to 6 to postpone the proposed elections to Eluru Municipal Corporation/Respondent No.7. But, to no avail. Therefore, the petitioner being a public spirited person and social worker apprehending substantial loss to the residents of Eluru Municipal Corporation/Respondent No.7 and people of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14), in spending several lakhs of rupees of public money for conducting elections before merger of seven vicinity 4 HACJ & MSM,J WP(PIL)_97 of 2019 Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation and requested to issue writ of mandamus claiming relief as stated supra.
During hearing, learned counsel for the petitioner would contend that the process of merger is pending with 3rd respondent. Though a letter was addressed by the 5th respondent on 29.09.2017 in ROC No.645/2016/G1, no steps have been taken for merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation since 29.09.2017. On account of identifying Eluru Municipal Corporation as Smart City under the State sponsored Smart City Scheme, if process of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is completed, the people of those seven vicinity villages will also enjoy the fruits of Smart City under the State sponsored Smart City Scheme. In case, the election is conducted, separately before merger of those villages, it would cause substantial loss to the seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) and therefore, requested to postpone or defer the elections, till completion of process of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to
14) in Eluru Municipal Corporation.
Per contra, learned Government Pleader for Municipal Administration submits that, issuance of a direction to postpone or defer municipal elections would be contrary to the constitutional mandate to hold election and the process will be completed at an early date and therefore, no mandamus can be issued against the respondents at this stage and requested to dismiss the petition at the stage of admission.
As seen from the material produced before this Court, the District Collector, West Godavari District, Eluru/Respondent No.5 addressed a letter to Director of Municipal Administration, Government of 5 HACJ & MSM,J WP(PIL)_97 of 2019 A.P/Respondent No.3 vide ROC No.645/216/G1 dated 29.09.2017, for merger of seven vicinity gram panchayts (Respondent Nos. 8 to 12) surrounding Eluru Municipal Corporation and it is pending consideration. The minutes of Gram Sabha meeting held on 27.09.2017 at 5.00 p.m in the Collectorate of Eluru is also placed on record, wherein, the Gram Sabha in principle has agreed for merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation. But, the Director of Municipal Administration kept the proposal pending for consideration, till date. The process of merger is not completed by the Government the third respondent for one reason or the other.
It is also an admitted fact that Municipal Corporation of Eluru is identified as Smart City under the State Sponsored Scheme vide G.O.Ms.No.9 Municipal Administration & Urban Development (UBS) Department dated 02.01.2017 and later vide G.O.Ms.No.1 Municipal Administration & Urban Development Department dated 01.01.2019 constituted Eluru Urban Development Authority (EUDA) with headquarters at Eluru.
While the proposal for merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is pending consideration before the third respondent, the Government issued G.O.Ms.No.175 MA &UD (G2) Department dated 17.05.2019, Municipal Administration Department, approving the proposal submitted by the Director of Municipal Administration, Guntur for identification of STs, SCs, Bcs and women voters in 9 Municipal Corporations, including Eluru Municipal Corporation. But, till date, the proposal for merger is pending for consideration before the third respondent. Along with G.O.Ms.No.175 MA &UD (G2) Department dated 17.05.2019, Annexure Nos. 1 & 2 fix time schedule for such identification and to submit a report. Thus, the 6 HACJ & MSM,J WP(PIL)_97 of 2019 Government is actively considering the proposal for conducting election to 9 municipal corporations. The Andhra Pradesh State Election Commission addressed a letter to the third respondent enclosing a representation received from this petitioner for postponement of elections during pendency of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation, but, no action was taken so far.
As seen from G.O.Ms.No.175 MA & UD (G2) Department dated 17.05.2019, the authorities are required to identify STs, SCs, Bcs and women voters in nine Municipal Corporations for delimitation or otherwise. Further, as per Rule 4 of The Andhra Pradesh Municipal Corporations (Delimitation of Wards) Rules, 1996, issued in G.O.Ms.No.570 Municipal Administration & Urban Development (Elec-2)(M.A) dated 06.11.1996, the area of the Corporation shall be divided into Wards as notified by the Government under Rule 3, duly taking into account the natural boundaries Geographical features and contiguity of the area. Wherever natural boundaries could not be adopted survey numbers, T.S numbers, important junctions or lanes shall be considered as far as possible.
On bare reading of the above rule, it is clear that, the area of Eluru Municipal Corporation shall be divided into Wards, duly taking into consideration the natural boundaries, Geographical features and contiguity of the area. In the instant case on hand, seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) are proposed to be merged in Eluru Municipal Corporation vide letter from the District Collector, West Godavari District, Eluru/Respondent No.5 to Director of Municipal Administration, Government of A.P/Respondent No.3 vide ROC No.645/216/G1 dated 29.09.2017 and the proposal is still under the active consideration of the Government. But, before completion of the process of merger, G.O.Ms.No.175 MA &UD (G2) Department dated 7 HACJ & MSM,J WP(PIL)_97 of 2019 17.05.2019 was issued. Therefore, apprehending substantial injury to the public in the seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation, the petitioner sought postponement or deferment of election of Eluru Municipal Corporation, as they are going to loose benefits of Smart City Scheme in the event of holding election before completion of process of merger. Pendency of proposal of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is an undisputed fact. Therefore, this Court has to examine the feasibility of deferment or postponement of elections with reference to various provisions of Municipal Corporation Act and constitutional provisions thereof.
The main endeavour of the learned counsel for the respondents is that the proposal for merger is under active consideration of the Government, No excuse is Pleaded for pendency of proposal of merger. In "Kishansing Tomar v. Municipal Corporation of the City of Amedabad" (referred supra), it was made clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. But the plea of impossibility to conduct elections to the Municipal Corporation due to multifarious reasons is not acceptable and the Apex Court in the special reference No.01 of 2002 with regard to Legislative Assembly elections to the State of Gujarat, held as follows:
"However, we are of the view that the employment of the words "on an expiration" occurring in Sections 14 and 15 of the Representation of the People Act, 1951 respectively show that the Election Commission is required to take steps for holding election immediately on expiration of the term of the Assembly or its dissolution, although no period has been provided for. Yet, there is another indication in Sections 14 and 15 of the Representation of People Act that the election process can be set in motion by issuing of notification prior to expiry of six months of the normal term of the House of the People or Legislative Assembly. Clause (1) of Article 172 provides that while promulgation of emergency is in operation, Parliament by law can extend the duration of the 8 HACJ & MSM,J WP(PIL)_97 of 2019 Legislative Assembly not exceeding one year at a time and this period shall not, in any case, extend beyond a period of six months after promulgation has ceased to operate."
"The aforesaid provisions do indicate that on the premature dissolution of the Legislative Assembly, the Election Commission is required to initiate immediate steps for holding election for constituting Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Legislative Assembly."
While Concurring with the foregoing opinion, Pasayat, J. in paragraph 151, stated as follows:
"The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex no cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims, 10th Ed., at pp 1962-63 and Craies on Statue Law, 6th Edn., p.
268.) These aspects were highlighted by this Court in Special Reference No. 1 of 1974. Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded."
The Apex Court in "Kishansing Tomar v. Municipal Corporation of the City of Amedabad" (referred supra) made it clear that the entire procedure in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality for every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for the State governments to recognize the significance of the State Election 9 HACJ & MSM,J WP(PIL)_97 of 2019 Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies, they enjoy the same status as the Election Commission of India. In terms of Article 243K and Article 243ZA(1) the same powers are vested in the State Election Commission as the Election Commission of India under Article 324. In other words the former provisions are in pari materia with the latter provision. The words, 'superintendence, direction and control' as well as 'conduct of elections' have been held in the "broadest of terms" by the Apex Court in several decisions including in Re: Special Reference No. 1 of 2002 (AIR 2003 SC
87) and "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi1".
The Division Bench of this Court in Writ Petition No.31639 of 2011 and batch had an occasion to deal with the issue similar to the present issue. On considering the facts and circumstances of the case and referring to the object of self government as enunciated by the Apex Court in "K. Krishna Murthy v. Union of India2", wherein the Apex Court while dealing with reservations, observed as follows:
"56.The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society."
By relying on the above principle, the Division Bench of this Court held that it is incumbent upon the State Election Commission and the 1 [1978]2SCR272 2 (2010) 7 SCC 202 10 HACJ & MSM,J WP(PIL)_97 of 2019 concerned authorities to carry out the mandate of the Constitution and to see that new bodies are constituted in time and elections are conducted before the expiry of their duration of five years as specified in Article 243E of the Constitution.
Thus, from the law declared by various Courts, it is a constitutional obligation of the State Election Commission and local bodies i.e. local self government like Municipal Corporations, Municipality and Panchayat to start process of election as permitted under Article 243 of Constitution of India. In the event of failure, it clearly amounts to violation of constitutional obligation or duty and the provisions of G.H.M.C.Act. But obviously for different reasons, more particularly, on account of politics prevailing in the State, the State instrumentalities are delaying the election process for one reason or the other. Delay on the part of third respondent in keeping the proposal for merger is not excusable and such lethargic attitude of the State and its instrumentalities in not completing process of merger and keeping pending for such a long period to conduct elections to Eluru Municipal Corporation attending to the problems responding to letters addressed to the Government by the local bodies may lead to administrative anarchy.
The question of municipal leadership is of great significance in urban governance in India. There are various models of the position of chief executive of an urban local body, predominantly tilting towards the 'strong mayor' model either through 'presidentialisation' of the office or through a 'mayor-in-council' system. In India, it is the 'state appointed municipal commissioner' model that holds sway, sitting over a popularly elected body. Thus, among the many urban reforms needed to fix ailing city governance across India, the question of municipal leadership may not 11 HACJ & MSM,J WP(PIL)_97 of 2019 be one of pivotal significance. Issues such as functional devolution to urban local bodies, strengthening their fiscal health and their comprehensive empowerment as "vibrant democratic units of self- government" are indeed central to the governance of cities.
The role of 'chief executive' is important in the organization but it cannot be overstated. The chief executive leads the organization and drives it towards achieving organizational excellence. Internally, the chief executive provides strategic vision and direction, prescribes goals and objectives, inspires their team, and harnesses the abilities of employees to achieve success. Externally, the chief executive represents the organization, communicates with other entities and people, and establishes the organization's credentials or brand among stakeholders. But such chief executive officer cannot run the local government for years together, so, the State is in a mood to hold elections to the Eluru Muncipal Corporation and its instrumentalities are unable to clear the hurdles, which are perennial in nature, despite representation by the public aid legal notice and the inaction on the part of the State and its instrumentalities is nothing but violating the constitutional mandate to hold elections to the Municipal Corporations for every period sacrificing democratic principles prescribed for development of Municipal Corporations and such attitude is deprecable.
The petitioner claimed relief of postponement or deferment of election for Eluru Municipal Corporation. But, in normal course, the Courts cannot grant such relief for postponement or deferment of election, in view of Section 6 of Greater Hyderabad Municipal Corporation Act and Articles 243Q(c), 243R, 243S, 243Z(a) of Constitution of India.
12 HACJ & MSM,J WP(PIL)_97 of 2019 In A.K.M. Hassan Uzzaman v. Union of India3, the Apex Court held as under:
"Secondly, though the High Court did not lack the jurisdiction to entertain the wire petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the courts the use of wise statemanship in the exercise of their extraordinary powers under the Constitution. The High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution."
In Anugrah Narain Singh v. State of U.P4, the Hon'ble Supreme Court, at Paragraph 12, held as follows:
"12. The answer must be emphatically in the affirmative. The bar imposed by Article 243-ZG is twofold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZG cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the court and stall the elections."
Eluru Municipal Corporation was already constituted. But, the proposal for merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation is pending with the third 3 1982 (2) SCC 218 4 1996 (6) SCC 303 13 HACJ & MSM,J WP(PIL)_97 of 2019 respondent. Though, Eluru Municipal Corporation is declared as Smart City under the State sponsored scheme, the benefits would go to the proposed panchayts in case they are merged. But, at the same time, the Court cannot order postponement or deferment of election to any municipal corporation or constituency in view of the settled law in the judgments referred supra.
Though the judgment pertains to Assembly and Parliament elections and municipalities, but the same principle is to be applied to the elections of Municipal Corporation, in view of Section 6 of Greater Hyderabad Municipal Corporation Act and Articles 243Q(c), 243R, 243S, 243Z(a) of Constitution of India. There is a little difference between the facts of the judgment and the present facts. The only difference is that the election process has already commenced in Anugrah Narain Singh v. State of U.P (referred supra). But, in the present case, election process is yet to commenc. But, on the ground of pendency of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation, this Court cannot issue writ of mandamus, since, writ of mandamus is discretionary in nature and such power of judicial review under Article 226 of the Constitution of India can be exercised only in certain circumstances. At best, this Court cannot decide the legality of the order. Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
In "State of Kerala v. A.Lakshmi Kutty5", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to 5 1986 (4) SCC 632 14 HACJ & MSM,J WP(PIL)_97 of 2019 enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.6", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
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 a mandamus. The said position is well settled in a series of decisions.
In "State of U.P. and Ors. v. Harish Chandra and Ors.7" 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."6
1995 All.L.J. 534 7 (1996) 9 SCC 309 15 HACJ & MSM,J WP(PIL)_97 of 2019 In "Union of India v. S.B. Vohra8" 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.
In "Oriental Bank of Commerce v. Sunder Lal Jain9" the Supreme Court held thus:
"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 8 (2004) 2 SCC 150 9 (2008) 2 SCC 280
16 HACJ & MSM,J WP(PIL)_97 of 2019 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."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) In view of the principles laid down in the above judgments, Writ of Mandamus cannot be issued in the present facts of the case since the alleged merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to
14) in Eluru Municipal Corporation would not infringe the fundamental rights of the people of seven gram panchayats guaranteed under Constitution of India and there is no remote danger to the society at large on account of failure to merger.
17 HACJ & MSM,J WP(PIL)_97 of 2019 By applying the principles laid down in the above judgment and the law declared by various Courts, we are not inclined to issue direction for postponement or deferment of election, but hope that respondent Nos. 1 to 3 would take a decision and complete the process of merger of seven vicinity Gram Panchayats (Respondent Nos. 8 to 14) in Eluru Municipal Corporation before notifying the date of election for the seventh respondent
- Eluru Municipal Corporation.
In the result, writ petition is disposed of with the above observation. Consequently, miscellaneous applications pending if any, shall stand dismissed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:06.08.2019 SP