Madhya Pradesh High Court
Lalit Kumar Jain vs Mukhya Nirvachan Adhikari on 25 February, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 25th OF FEBRUARY, 2025
WRIT PETITION No. 34628 of 2024
LALIT KUMAR JAIN AND OTHERS
Versus
MUKHYA NIRVACHAN ADHIKARI AND OTHERS
Appearance:
Shri K Stomar Ga appearing on behalf of Advocate General.
ORDER
Looking to the parties made in the writ petition it appears that some
private dispute is being contested by the petitioner against the private society
known as Akhil Bhartiya Shri Digambar Jain, Baraiya Mahasabha,
Girjabagh, Imli Naka, Sikandar Kampoo, Lashkar, Gwalior. Neither there is
any averments in the petition that it is a registered society nor any State
Authorities have been made party respondents, nor there are pleadings to the
effect that respondents are public authority created by a statute, who could
be compelled to perform his duties.
2. The Apex Court in the case of Shri Anadi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani (1989) 2 SCC 691 has held as under:
"16. The law relating to mandamus has made the most spectacular
advance. It may be recalled that the remedy by prerogative writs in
England started with very limited scope and suffered from many
procedural disadvantages. To overcome the difficulties, Lord
Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of
the Law Commission Act, 1965, requested the Law Commission
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"to review the existing remedies for the judicial control of
administrative acts and omissions with a view to evolving a
simpler and more effective procedure". The Law Commission
made their report in March 1976 (Law Commission Report No.
73). It was implemented by Rules of Court (Order 53) in 1977 and
given statutory force in 1981 by Section 31 of the Supreme Court
Act, 1981. It combined all the former remedies into one
proceeding called Judicial Review. Lord Denning explains the
scope of this "judicial review": "At one stroke the courts could
grant whatever relief was appropriate. Not only certiorari and
mandamus, but also declaration and injunction. Even damages.
The procedure was much more simple and expeditious. Just a
summons instead of a writ. No formal pleadings. The evidence
was given by affidavit. As a rule no cross-examination, no
discovery, and so forth. But there were important safeguards. In
particular, in order to qualify, the applicant had to get the leave of
a judge. The statute is phrased in flexible terms. It gives scope for
development. It uses the words "having regard to". Those words
are very indefinite. The result is that the courts are not bound hand
and foot by the previous law. They are to "have regard to" it. So
the previous law as to who are -- and who are not --13 (1989) 2
SCC 691 14 (2023) 4 SCC 1 public authorities, is not absolutely
binding. Nor is the previous law as to the matters in respect of
which relief may be granted. This means that the judges can
develop the public law as they think best. That they have done and
are doing." [ See The Closing Chapter by Rt. Hon. Lord Denning,
p. 122]
17. There, however, the prerogative writ of mandamus is confined
only to public authorities to compel performance of public duty.
The "public authority" for them means everybody which is created
by statute -- and whose powers and duties are defined by statute.
So government departments, local authorities, police authorities,
and statutory undertakings and corporations, are all "public
authorities". But there is no such limitation for our High Courts to
issue the writ "in the nature of mandamus". Article 226 confers
wide powers on the High Courts to issue writs in the nature of
prerogative writs. This is a striking departure from the English
law. Under Article 226, writs can be issued to "any person or
authority". It can be issued "for the enforcement of any of the
fundamental rights and for any other purpose."
3. Further in the matter of Binny Ltd. and Anr. v. V. Sadasivan and
Ors., reported in (2005) 6 SCC 657, the Apex Court in para 23 has held as
under:
"23. The counsel for the respondent in Civil Appeal No. 1976 of
1998 and for the appellant in the civil appeal arising out of SLP
(Civil) No. 6016 of 2002 strongly contended that irrespective of
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the nature of the body, the writ petition under Article 226 is
maintainable provided such body is discharging a public function
or statutory function and that the decision itself has the flavour of
public law element and they relied on the decision of this Court
i n Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [(1989) 2
SCC 691] . In this case, the appellant was a Trust running a
science college affiliated to the Gujarat University under
the Gujarat University Act, 1949. The teachers working in that
college were paid in the pay scales recommended by the
University Grants Commission and the college was an aided
institution. There was some dispute between the University
Teachers Association and the University regarding the fixation of
their pay scales. Ultimately, the Chancellor passed an award and
this award was accepted by the State Government as well as the
University and the University directed to pay the teachers as per
the award. The appellants refused to implement the award and the
respondents filed a writ petition seeking a writ of mandamus and
in the writ petition the appellants contended that the college
managed by the Trust was not an "authority" coming within the
purview of Article 12 of the Constitution and therefore the writ
petition was not maintainable. This plea was rejected and this
Court held that the writ of mandamus would lie against a private
individual and the words "any person or authority" used in Article
226 are not to be confined only to statutory authorities and
instrumentalities of the State and they may cover any other person
or body performing public duty. The form of the body concerned
is not very much relevant. What is relevant is the nature of the
duty imposed on the body. The duty must be judged in the light of
positive obligation owed by the person or authority to the affected
party. No matter by what means the duty is imposed, if a positive
obligation exists, mandamus cannot be denied."
4. In the light of the aforesaid judgments it is clear that the prerogative
writ of mandamus is confined only to public authorities to compel
performance of public duty and the public authority for them means
everybody which is created by statute. But herein present case firstly it is not
pleaded that the respondents are public authorities and secondly they are
performing public duties. Thus, the writ against the purely private object
discharging no public functions and is not a public authority is not
maintainable. So also under Article 226 of the Constitution of India writ can
be issued to any person or authority for enforcement of any fundamental
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right for any other purpose which herein present case is missing.
5. Thus, the present petition being not maintainable is hereby
dismissed.
(MILIND RAMESH PHADKE)
JUDGE
(aspr)
