Surender Kumar Sood And Anr. vs M.C.D. And Anr.
2006 Latest Caselaw 218 Del

JUDGMENT

Markandeya Katju, C.J.

1. Heard learned counsel for the appellant.

2. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 31.8.2005.

3. The prayer in the writ petition was that the MCD constructed a Dhalaon and the same created a public nuisance which should be removed.

4. It is a well settled principle of law of mandamus that before approaching the High Court for such a writ the petitioner should first approach the authority concerned for the relief he wants and only if that is not granted to him, then he can file a writ in the High Court. The party cannot directly come to the High Court for making such a grievance vide Saraswati Industrial Syndicate Ltd. etc. v. Union of India in paragraph 24 of which the Supreme Court observed:-

The 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. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue 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, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd edition, Vol, 13, p. 106):

As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution.

5. The petitioner ought to have approached the MCD before approaching the High Court. Hence the learned Single Judge rightly rejected the writ petition on this ground.

6. It shall be open to the appellant to approach the MCD for the relief as prayed for. If he does so, the application will be considered in accordance with law and disposed of expeditiously.

7. The appeal is dismissed.