Allahabad High Court
Rajeshwari Devi vs State Of U.P. And 7 Others on 9 July, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- WRIT - C No. - 21922 of 2019
Petitioner :- Rajeshwari Devi
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Kamlesh Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Learned counsel for the petitioner is permitted to correct the cause title in the stay application as well as the writ petition. Necessary correction be made during the course of the day.
2. The sole prayer made in this writ petition is for a writ of mandamus directing respondent No. 2 to decide petitioner's representation dated 23.01.2019.
3. However, we find from record that there are two representations placed on record at page 67 and 68 which are dated 21.1.2019 and 11.6.2019. There is no representation on record dated 23rd January, 2019. Therefore, petitioner is seeking a mandamus to decide a representation which she has actually not made part of record.
3. Be that as it may, even otherwise, petitioner's representations dated 21.1.2019 and 11.6.2019 show that grievance of petitioner is that some private parties have got a sale deed executed illegally. If that be so, petitioner has remedy to lodge a First Information Report and if the same is not registered, she may file an application under section 156 (3) Cr. P. C. or a criminal complaint before Magistrate concerned. Further, if any sale deed has been executed fraudulently and/or illegally, petitioner has also remedy available by filing civil suit for cancellation of sale deed. None of the aforesaid steps have been taken by petitioner. It is also not stated any where in the petition that petitioner has made an attempt to lodge report, but police has refused to register the same. Petitioner only had moved alleged representation which is not referable to any statute. Petitioner himself has to get a case registered under section 420 I.P.C., rather than filing a representation. In order to seek a mandamus, petitioner has to establish that such a representation has been made under a statutory provision. It is necessary to show that petitioner has a statutory right under a statute and it is for enforcement of such right the application has been made under some provision of the statute.
4. It is well settled that a writ of mandamus would lie only if a petitioner is enforcing a legal right and the respondents under statutory obligation to do or not to do something, have failed to do so.
5. In Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280 the Apex Court after referring to its earlier judgments in Bihar Eastern Gangetic Fisherman Cooperative Society Ltd. Vs. Sipah Singh (1977) 4 SCC 145; Lekhraj Sathramdas Lalvani Vs. N.M. Shah, AIR 1966 SC 334, Dr. Uma Kant Saran Vs. State of Bihar 1993 (1) SCC 485 observed as under:
" 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."
6. Learned counsel for the petitioner could not show any such statutory legal duty upon official respondents corresponding to statutory legal right of the petitioner which could be enforced by issuing a writ of mandamus as prayed for by the petitioner. In view thereof, no relief as prayed for can be granted.
7. The above exposition of law makes it clear that a writ of mandamus cannot be issued on mere asking unless pre-conditions are satisfied. Since, in the present case these conditions are not satisfied, the petition, being devoid of merits, is dismissed with cost of Rs.5,000/-.
Order Date :- 9.7.2019
HSM
