ALIGARH MUSLIM

UNIVERSITY
MALAPPURAM CENTRE,
KERALA

ADMINISTRATIVE LAW
PROJECT
Topic- Writ of Mandamus and Certiorari

Submitted to Submitted by
Mr.Shahnawaz A. Malik Kunjali Singh
Assistant Professor GK7931
Department of law 18BALLB34
Topic Page no.
Introduction 3
Writ Of Mandamus- 3-4
Nature and Scope
Grounds 4-5
General Principles of 5
writ of Mandamus
Writ can be issued 5-8
Against?
Writ of Certiorari 8-9
Definition and Nature 9-10
Against whom it can be 10
issued?
Necessary Conditions 11
Grounds 11-12
Conclusion 12
References 13
Introduction
Writs are a written order from the Supreme Court or High Court that commands constitutional
remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the
Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the
Supreme Court and High Court against the violation of his/her fundamental rights. The same
article gives the Supreme Court power to issue writs for the enforcement of rights whereas the
High Court has the same power under Article 226.

Indian constitution has adopted the concept of prerogative writs from English common
law. Writs was first used to describe a written command of the King. Whereas, these writs are
now available to a person aggrieved by the decision of the inferior courts or administrative body
in England. 

In the case of Romesh Thapar v State of Madras1 , it was held that  person can come directly
to the Supreme Court for the infringement of Fundamental rights and the Supreme Court is under
an obligation to pass the orders . In the case of P N Kumar v MCD2, the Supreme Court
clarified that Article 32 and Article 226 are both effective remedies but it is better that we first
go to the High Court. This case was basically because of the fact that there was a huge pendency
in the Supreme Court. The petitions to the Supreme Court are subject to Res Judicata except the
writ of Habeas Corpus. 

In the case of Daryao v State of Uttar Pradesh3 , certain guidelines were laid down:

1. If a petition has been filed under Article 226 and has been considered on merits, then
it would bind the parties.
2. It is not open to parties to again go to SC on the same facts.
3. But if the petition under Article 226 has not been dismissed on merits but on laches
(delay), then it would not be a bar to file a petition under Article 32.
4. If the petition under Article 226 has been dismissed in limine (on the same day
without much hearing or argument) and if the orders are with reasons, it would be a
bar but if it is not a speaking order, then it would not be a bar

1
SC 1950
2
SC 1987
3
1961 SC
By such writs the Judiciary can control the administrative actions and prevent any kind of
arbitrary use of power and discretion.

There are 5 kinds of writs

- Mandamus
- Certiorari
- Prohibition
- Quo warranto
- Habeas corpus
In this project we are going to study the Writ of Mandamus and Writ of Certiorari in detail.

Writ Of Mandamus

Nature and Scope

A writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board,
corporation or any administrative authority, or a person requiring the performance of a specific
duty fixed by law or associated with the office occupied by the person.
Mandamus in England is “neither a writ of course nor a writ of right, but that it will be granted if
the duty is in the nature of public duty and specially affects the right of an individual provided
there is no other appropriate remedy.

The writ is issued to compel an authority to do his duties or exercise his powers, in accordance
with the mandate of law. The authority may also be prevented from doing an act, which he is not
entitled to do. The authority, against which the writ is issued, may be governmental or semi-
governmental, or judicial bodies. Its function in Indian Administrative Law is as general writ of
justice, whenever justice is denied, or delayed and the aggrieved person has no other suitable the
defects of justice. An order in the nature of mandamus is not made against a private individual.
The rule is now well established that a writ of mandamus cannot be issued to a private
individual, unless he acts under some public authority. A writ can be issued to enforce a public
duty whether it is imposed on private individual or on a public body.
The Court laid down that public law remedy mandamus can be availed of against a person when
he is acting in a public capacity as a holder of public office and in the performance of a public
duty. It is not necessary that the person or authority against whom mandamus can be claimed
should be created by a statute. Mandamus can be issued against a natural person if he is
exercising a public or a statutory power of doing a public or a statutory duty.

Grounds of the Writ of Mandamus

The writ of mandamus can be issued o the following grounds :

(i) That the petitioner has a legal right.

The existence of a right is the formation of the jurisdiction of a Court to issue a writ of
mandamus. The present trend of judicial opinion appears to be that in the case of non-selection
to a post, no writ of mandamus lies.

(ii) That there has been an infringement of the legal right of the petitioner;

(iii) That the infringement has been owing to non-performance of the corresponding duty by
the public authority;

(iv) That the petitioner has demanded the performance of the legal duty by the public
authority and the authority has refused to act:

(v) That there has been no effective alternative legal remedy.

The applicant must show that the duty, which is sought to be enforced, is owed to him and the
applicant must be able to establish an interest the invasion of which has been given rise to the
action.

The writ of mandamus is available against all kinds of administrative action, if it is affected
with illegality. When the action is mandatory the authority has a legal duty to perform it. Where
the action is discretionary, the discretion has to be exercised on certain principles; the authority
exercising the discretion has mandatory duty to decide in each case whether it is proper to
exercise its discretion. In the exercise of its mandatory powers as well as discretionary powers it
should be guided by honest and legitimate considerations and the exercise its discretion should
be for the fulfillment of those purposes, which are contemplated by the law. If the public
authority ignores these basic facts in the exercise of mandatory or discretionary.

Where the duty is not mandatory but it is only discretionary, the writ of mandamus will not be
issued. The principles are illustrated in Vijaya Mehta v.State4. There a petition was moved in
the high Court for directing the state Government to appoint a Commission to inquire into
change in climate cycle, flood in the State etc. Refusing to issue the writ, the Court pointed out
that under Section 3 of the Commission of Inquiry Act, the Government is obligated to appoint a
commission if the Legislature passes a resolution to that effect.

In other situation, the government’s power to appoint a commission is discretionary and optional
as a commission could only be appointed by the State Government if, in its opinion it is

4
AIR 1980 Raj.207
necessary to do so. The petitioner, therefore has no legal right to compel the State Government
to appoint a
Commission of Inquiry even when there is a definite matter of public importance for the
government may not feel inclined to appoint a Commission if it is of the opinion that is not
necessary to do so.

If the public authority neglects to discharge mandatory duty he would be compelled by

mandamus to do it. The refusal to refer to the High Court questions under statutory provision
like section 57 of the Stamp Act may be included in the class of mandatory duties in the light of
the decision of the Supreme Court in Maharastra Sagar Mills case. Mandamus was issued to
compel the government to fill the vacant seats in a Medical College as Article 41 of the
Constitution, which is a directive principle of State policy, includes the right to medical
education.

In Bhopal sugar Industries Ltd. V. income Tax Officer, Bhopal, 5 (AIR 1961 SC 182) it was
held by the supreme Court that, where the Income Tax Officer had virtually refused to carry out
the clear and unambiguous directions which a superior tribunal like the Income tax appellate
Tribunal had given to him by its final order in exercise of its appellate power in respect of an
order of assessment made by him, such refusal is in effect a denial of justice, and is furthermore
destructive of one of the basic principles in the administration of justice based on as it is the
hierarchy of Courts. In such a case a writ of mandamus should issue ex-debits justifiable to
compel the Income-tax Officer to carry out the directions given to him by the Income-tax
Appellate Tribunal.

The High Court will be clearly in error if it refused to issue a writ on the ground that no manifest
injustice has resulted from the order of the Income-tax Officer in view of the error committed by
the tribunal itself in its order. Such a view is destructive of one of the basic principles of the
administration of justice.

Thus we find that the Court will not tolerate the omission of mandatory duties by the police
authority and it would compel the authority by the writ of mandamus to do what it must.

A writ of mandamus will not be issued unless an accusation of non-compliance with a legal duty
or a public duty is leveled. It must be shown by concrete evidence that there was a distinct and
specific demand for performance of any legal or public duty cast upon the said party declined to
comply with the demand.
When an original legislation by the Union or State exceeds its legislative orbit and injuries
private interests, the owner of such interests can have a mandamus directing the States not to
enforce the impugned law “against the petitioners in any manner whatsoever.” The duty of this
writ becomes more onerous as it attempts to face different phases and types of ultra vires

5
AIR 1961 SC 182
administrative action, whether with regard to internment or election, taxation or license fees,
evacuee property or dismissal of public officers.

Grounds on which writ of mandamus may be refused.

The relief by way of the writ of mandamus is discretionary and not a matter of right. The Court
on any of the following grounds may refuse it:

1. The Supreme Court has held in Daya v. Joint Chief Collector 6, that where the act against
which mandamus is sought has been completed, the writ if issued, will be in fructuous. On the
same principle, the Court would refuse a writ of mandamus where it would be
meaningless, owing to lapse or otherwise.

Who may apply for mandamus? __It is only a person whose rights have been infringed
who may apply for mandamus. It is interesting to note that the rule of locus stand has been
liberalized by the Supreme Court so much as to enable any public-spirited man to move the court
for the issue of the writ on behalf of others.

General principles relating to mandamus to enforce public duties

In considering general principles the following points have to be considered:

(a) That the duty is public. In this connection an important case, Ratlam Municipality v.
Vardhi Chand7 came to be decided by the Supreme Court in 1980, in which it compelled a
statutory body to exercise its duties to the community. Ratlam Municipality is a statutory body.
A provision in law constituting the body casts a mandate on the body “ to undertake and make
reasonable and adequate provision” for cleaning public streets and public places, abating all
public nuisances and disposing of night soil and rubbish etc. The Ratlam Municipality neglected
to discharge the statutory duties.

(b) That it is a duty enforced by rules having the force of law. Thus
(i) Where an administrative advisory body is set up (without the sanction of any statute)
mandamus will not be issued against such body even through the functions of the body relate to
public
matters;
(ii) Though executive or administrative directions issued by a superior authority are enforceable
against an inferior authority by departmental action, they have no force of law and are,
accordingly not enforceable by mandamus.
(iii) An applicant for mandamus must take the position that the person against whom an order is
sought is holding a public office under some law, and his grievance is that he is acting
6
AIR 1962 SC1791
7
AIR 1980 SC 1622
contrary to the provisions of that law.

In short, mandamus will be issued when the Government or its officers either overstep the limits
of the power conferred by the statute, or fails to comply with the conditions imposed by the
statute for the exercise of the power.

Against whom a Writ of Mandamus cannot be issued?

Writ of mandamus is issued generally for the enforcement of a right of the petitioner. Where the
applicant has no right the writ cannot be issued. It cannot lie to regulate or control the discretion
of the public authorities.
The writ of mandamus will not be issued if there is mere omission or irregularity committed by
the authority. It will not lie for the interference in the internal administration of the authority. In
the matters of official judgment, the High Court cannot interfere with the writ of mandamus.

Writ of Certiorari

Certiorari means “to certify.” Writ of Certiorari is a curative writ. The writ of certiorari is issued
by the High Court to subordinate judicial or quasi-judicial bodies, directing them to transfer the
records of a particular case, in order to determine whether the court has the jurisdiction to give
the order, or whether it is against the principles of natural justice. A writ of certiorari is
corrective in nature.

Definition and Nature :

Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a
cause or matter pending before them to the superior Court to be dealt with there and if the order
of inferior Court is found to be without jurisdiction or against the principles of natural justice, it
is
quashed:

“Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued in

the form of an order by a superior Court to an inferior civil tribunal which deals with the civil
rights of persons and which is public authority to certify the records of any proceeding of the
latter to review the same for defects of jurisdiction, fundamental irregularities of procedure and
for errors of law apparent on the proceedings.”

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is
not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at
by the inferior Court or tribunal are binding. An error of law apparent on the face of the record
could be corrected by a writ of certiorari, but not an error of fact; however grave it may appear to
be.

Certiorari is thus said to be corrective remedy. This is, of course, its distinctive feature. The very
end of this writ is to correct the error apparent on the face of proceedings and to correct the
jurisdictional excesses. It also corrects the procedural omissions made by inferior courts or
tribunal. If any inferior court or tribunal has passed an order in violation of rules of natural
justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the
proper remedy so through the writ of certiorari.

Certiorari is a proceeding in personam : Unlike the writ of habeas corpus the petition for
certiorari should be by the person aggrieved, not by any other person. The effect of the rule of
personam is that if the person against whom the writ of certiorari is issued does not obey it, he
would be committed forthwith for contempt of court.

Certiorari is an original proceeding in the superior Court. It has its origin in the court of issue
and therefore the petition in India is to be filed in the High Court under Article 226 or before the
Supreme Court under Article 32 of the Constitution.

Against whom it can be issued :

As regards the question against whom the writcan be issued, it is well settled that the writ is
available against nay judicial or quasi-judicial authority, acting in a judicial manner. It is also
available to any other authority, which performs judicial function and acts in a judicial manner.

Any other authority may be Government itself. But the conditions allied with it are that
Government acts in a judicial manner and the issue is regarding the determination of rights or
title of a person. Previously the question was in doubt whether it was available against Central
and Local Governments. The majority of judgment is there, when the grant of certiorari against
the Government has been denied. The Madras High Court in 1929 and again in 1940 in Chettiar
v. Secretary to the Government of Madras.8 held that a writ of certiorari would not lie against
Madras Government. The Assam High Court has held that the writ of certiorari will be issued to
an authority or body of persons who are under a duty to act judicially. It will not be available
against the administrative order or against orders of non-statutory bodies.

Necessary conditions for the issue of the Writ :

When any body persons

(a) Having legal authority.

8
ILR 1940 Mad.205
 (b) To determine questions affecting rights of subjects,

(c) Having duty to act judicially,

(d) Acts in excess of their legal authority, writ of certiorari may beissued. Unless all these
conditions are satisfied, mere inconvenience or absence of other remedy does not create a
right to certiorari.

Grounds of Writ of Certiorari :

The writ of certiorari can be issued on the following grounds:

(1) Want of jurisdiction, which includes the following:

(a) Excess of jurisdiction.

(b) Abuse of jurisdiction.
(c) Absence of jurisdiction.

(2) Violation of Natural justice.

(3) Fraud.

(4) Error on the face of records.

(1) Want of jurisdiction : The Supreme Court has stated in Ebrahim Abu Bakar v.
Custodian- General of Evacuee Property 9(111952 SCJ 488), that want of jurisdiction may
arise from.
(1) The nature of subject matter.
(2) From the abuse of some essential preliminary, or
(3) Upon the existence of some facts collateral to the actual matter, which the Court has to try,
and which is the conditions precedent to the assumption of jurisdiction by it.
It may be added that jurisdiction also depends on
(4) The character and constitution of the tribunal

There have been a good number of cases in Indian Administrative Law where the use of
jurisdiction has been corrected through the writ of certiorari. Thus the orders of tribunals which
did not wait even for 15 minutes to hear a party and which resorted to its own theories to assess
the premises of people and acted under the influence of political considerations, have been
quashed.

9
111952 SCJ 488
The Court does not interfere in the cases where there is a pure exercise of discretion, and which
is not arbitrary if it is done in good faith. They do not ignore the legislative intention in the
statute which might give a wide aptitude of powers to the administrative authority or the social
needs, which demand the bestowal of some wider jurisdiction, or the historical circumstances
under which a certain tribunal got exclusive jurisdiction of a particular subject-matter.

(2) Violation of Natural Justice The next ground for the issue of writ of certiorari is the
violation of natural justice and has a recognized place in Indian legal system as discussed in the
earlier part of the reading material.

(3) Fraud there are no cases in India where certiorari has been asked onaccount of fraud. The
cases are found in British Administrative law where on the ground of fraud the Court has granted
the writ of certiorari. The superior Courts have an inherent jurisdiction to set aside orders of
convictions made by Inferior tribunals if they have been procured by fraud or collusion a
jurisdiction that now exercised by the issue of certiorari to quash Where fraud is alleged, the
Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was
instrumental in procuring the order impugned.

(4) Error of law apparent on the face of record. “An error in decision or determination itself
may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face
of the proceeding e. g., when it is based on clear ignorance or disregard of the provision of law.”
In other words; it is a patent error, which can be corrected by certiorari but not a mere wrong
decision. (T. C. Basappa v. T. Nagappa 10). It was for the first time when the Supreme Court
issued the writ of certiorari on the only ground that the decision of the election tribunal clearly
presented a case of error of law, which was apparent on the face of the record. The error must be
apparent on the face of the records.

In the case of STATE OF UP vs MOHAMMED NOOR11 , the supreme court stated that one
can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior
court or tribunal.
Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ12 . The
Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on
the face of records, but not for the correction of an error of fact.

Conclusion

10
AIR 1954 SC 440
11
AIR 1958 SC 816
12
1995 SC 233
For effective working of these principles and goals in real life and to prevent misuse of these
rights and liberties the judiciary was constituted in the Constitution.It is a trite saying and a latin
maxim ubi jus ibi remedium which means that wherever there is wrong committed law provides
remedy for the same. Therefore, judiciary was constituted to satisfy this principle well and when
a remedy is given for infringement of any right then that will make the right more effective.

To facilitate access to justice, the judiciary relaxed the rule of locus standi in favour of a person
acting bonafide and having sufficient interest in the proceedings of Public Interest Litigation
(here in after referred as PIL). Supreme court have entertained petitions filed by law students,
law teachers, NGOs, public-spirited individuals and good Samaritans. for protection of the rights
of an individual.

Furthermore, the Supreme Court and the High Court have admitted the letters, postcards,
telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of
Indian Constitution. These petitions provide extraordinary judicial relief to the person whose
rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to
play in the justice system; it affords a ladder to justice to the disadvantaged sections of the
society, some of which might not even be well-informed about their rights. 

Constitution law itself states that law is a supreme body and no one can be above the law. Even
the judges of the supreme court are bound by the decision given by them in accordance with the
law. And the constitution remedies provided under the law acts as a check and balance for the
whole system. Thus, the writ jurisdictions act as judicial restraints of policy decisions which are
unreasonable, unfair and against the public interest. 

Power to issue writ, though is discretionary yet unbounded in its limits and such discretion can
be exercised only on sound legal principles. Absence of arbitrary power is the first essential for
the principle of rule of law upon which the whole constitutional system is based.

References
1. Kailash rai, administrative law, Allahabad law agency Seventh
edition 2016.

2. Pratibha Bansal “ Writs in Constitutio of India” website-

https://blog.ipleaders.in/writ/
3. Tanu Kapoor “ Analysis of types of writs under constitution of
India" https://www.latestlaws.com/articles/analysis-of-types-of-
 writs-under-constitution-of-india-landmark-cases-by-tanu-
kapoor/
4. Ajay C. “ Types of Writs in Constitution”
http://www.legalserviceindia.com/legal/article-68-types-of-writs-
in-indian-constitution.html