VIDYA A B Vs. UNION OF INDIA

JUDGEMENT

(1.) THE existence of a statutory right in favour of the petitioners and a corresponding statutory duty on the part of the authority are sine-qua-non for a writ of mandamus. The primary object and function of a Court in a petition filed for issuance of a writ of mandamus is one of commanding or ordering the doing of an act which has been declined by the executive in the course of its administrative function. The Court does not perform the function of 'adjudicating' on the right of the petitioner who is before Court. Even in cases, where the right springs from the statute itself and it is there for all to see, a person moving the Court for a writ of mandamus has to first exhaust the remedy available to him by laying a claim before the executive. It is so, even where the right is clear, unqualified and specific. The primary function of the Court in the writ of mandamus proceedings being one of merely commanding the performance of a certain act by the executive because, the party seeking the relief is entitled to certain right, there must be adjudication by the executive of the right claimed, which adjudication serves as the material on the basis of which the Court could arrive at a conclusion that a person has been wrongly or rightly denied his statutory right. Thus, the issuance of a writ of mandamus must be preceded by an executive order passed, on consideration of the claim to a certain right by the person aggrieved. In the absence of such consideration there is a vacuum insofar as the basis on which the Court could decide whether the person is entitled to a right claimed by him or not and the writ of mandamus cannot be issued in favour of such a person who has not laid his claim before the executive. The precondition is, existence of statutory right on the part of the person claiming the relief and a corresponding statutory duty on the part of the authority against whom the relief is sought. It, therefore, necessarily follows that the authority concerned must have declined to perform his legal duty to enable the petitioner to approach the Court seeking a writ of mandamus. Unless such a denial is there, no petition seeking a writ of mandamus can lie.

(2.) FURTHER, the denial of a right in the statement of objections filed before the Court by the authority would not tantamount to consideration of the claim by the authority after due application of mind, in performance of its public duty. The consideration and decision that follows such consideration are functions that have to be performed on the administrative side by the authority as a matter of public duty and the authority can perform such public duty only if it is called upon to do so. Where the authority concerned is not called upon to perform its public duty, no writ of mandamus can lie.

(3.) THAT apart, this Court under Art. 226 of the Constitution, cannot perform the dual function of executive and judiciary. Deciding a petition for issuance of a writ of mandamus when the same is not adjudicated upon by the authority would amount to the Court taking upon itself the function of adjudicating the right of an aggrieved person and then sitting in judgment over its own adjudication. This is so, because the function of adjudication of a statutory right, which is performed by the executive, is distinct and different by its very nature from the function of issuing a writ of mandamus which is essentially the function of the Court and these cannot be clubbed together. While the adjudication has to be done by the executive, the latter function of issuing a command has to be done by the judiciary in pursuance to such adjudication. Clubbing these functions together and performance of the dual functions by the Court is impermissible in law.