The Supreme Court in a recent Judgment dated 07.08.2020 in the case of Hari Krishna Mandir Trust vs. State of Maharashtra (CIVIL APPEAL NO.6156 OF 2013), has directed that #HighCourts are bound to issue a writ of #mandamus for enforcement of a #publicduty.
The facts in the instant case related to a dispute with respect to a Private Road. The Hari Krishna Mandir Trust, who was the owner of the certain Plots, filed a Proposal in which it requested the State of Maharashtra Government to correct the wrong entry in the name of Pune Municipal Corporation being the owner of the said Private Road. The Urban Development Department, Government of Maharashtra rejected the proposal for modification of sanction scheme under the Regional and Town Planning Act, 1966 (the Act). It also held that the Pune Municipal Corporation is the owner in respect of the said Private Road.
Being aggrieved the Appellant i.e., Hari Krishna Mandir Trustfiled the Writ Petition No.904 of 2008 in the Bombay High Court challenging the said Order dated 03.05.2006. The Writ Petition was dismissed. The High Court found that the land in question had been vested, without any encumbrances, in the Pune Municipal Corporation at the time of commencement of the Town Planning Scheme, by virtue of Section 88 of the Act.
When the matter was argued in the Supreme Court the Pune Municipal Corporation stated that they were not the owners of the disputed property as erroneously claimed by the Government of Maharashtra. It was found that the land belongs to the Hari Krishna Mandir Trust and had been taken over by the Government without any authority. The Supreme Court after hearing the matter at length held that the High Courts in exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.
In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
The Supreme Court further held that the High Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same. Thus, the Court held that in the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State. The Appeal was allowed, and the Judgment and Order under Appeal was set aside.
The Indian Lawyer