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No writ in the nature of a mandamus can be issued if there is no failure to perform a mandatory duty: High Court of Patna

Powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. It is a well-recognised rule that no writ or order in the nature of a mandamus can be issued when there is no failure to perform a mandatory duty applies in this country as well and the same was upheld by High Court of Patna through the learned bench led by JUSTICE S. KUMAR in the case of Bimal Kumar vs. State of Bihar [Case No.895 of 2022] on 07.03.2022.

The facts of the case are that writ petitions were raised by way of public interest litigation and the controversy before the court was whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. The petitioner seeks issuance of Writ in the nature of Mandamus directing the Respondents to activate the User ID of the petitioner and also permit the Petitioner to perform all the mining activities which the petitioner in entitled to do in the light of Storage License issued by the Respondents. And further direct to restore the Storage License of the petitioner.

The respondent’s counsel stated that if such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously as it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court.

The Court held that no ground whatsoever is shown here by petitioner for the issue of any writ, order, or direction under Article 226 of the Constitution. The Court observed that, “powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. It is a well-recognised rule that no writ or order in the nature of a mandamus can be issued when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England.”

Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King’s Bench directing performance of a public legal duty. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so.

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Judgment reviewed by – Shristi Suman

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