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2004 DIGILAW 208 (KER)

Mathew Luke v. State of Kerala

2004-05-27

K.BALAKRISHNAN NAIR

body2004
Judgment :- K. Balakrishnan Nair, J. The petitioner is the Secretary of the Joint Christian Action Council. This Writ Petition is filed by him, seeking a writ of mandamus against the State of Kerala and its Law Secretary to take action on certain representations filed by the Council, praying to issue an exemption notification under S.3 of the Indian Succession Act. The brief facts of the case are the following:- 2. The declaration of law made by the Apex Court in "Mary Roy v. State of Kerala ",1986 KLT 508 SC. has affected the settlement of properties made by several Christian families in Kerala. The Apex Court declared that the provisions of the Indian Succession Act, 1925 (hereinafter referred to as the Act) will govern intestate succession of Christians, thought to be governed till that time, by the local Laws. On behalf of the Christians affected by the said judgment, the petitioner moved the Government and the Government agreed to introduce a State Legislation for nullifying the retrospective effect of the aforementioned decision of the Apex Court. It is submitted, Bill Nos. 105 of 1994 and 155 of 1996 were prepared by the Government, but, they were never introduced in the Legislative Assembly. The petitioner submits, the urgency of the matter was being brought to the notice of the Government from time to time. The Council, on 25.7.2001, submitted Ext.P1 representation before the Government, praying, atleast to issue a notification under S.3 of the Act, exempting the retrospective operation of the provisions of the Act from 1.4.1951 to 23.1.1986. By Ext.P2 representation dated 15.10.2001, the petitioner forwarded an article written by him, dealing with the case decided by the Honourable Supreme Court. The Government informed the petitioner, in answer to Ext.P2 that the matter is under the consideration of the Government, by communication dated 11.12.2001. The petitioner filed another representation, Ext.P3 dated 11.10.2002, before the Grievance Cell of the Chief Minister's office in the Secretariat, pointing out the inaction of the Government. By Ext.P4 reply dated 6.11.2002, the petitioner was informed that the matter is under the consideration of the Law Minister. The petitioner, on 12.2.2004 submitted Ext.PS representation before the Chief Minister of Kerala, praying either to issue a notification under S.3 of the Act or to pass Bill No.105 of 1994 in the Legislative Assembly. By Ext.P4 reply dated 6.11.2002, the petitioner was informed that the matter is under the consideration of the Law Minister. The petitioner, on 12.2.2004 submitted Ext.PS representation before the Chief Minister of Kerala, praying either to issue a notification under S.3 of the Act or to pass Bill No.105 of 1994 in the Legislative Assembly. The Chief Minister, by Ext.P6 letter dated 13.2.2004, informed the petitioner that the representation filed by him has been received. 3. In the above factual background, the petitioner submits that though this Court cannot issue a writ of mandamus, directing the respondents to enact a law, this Court can compel the Government to apply their mirid to the issue raised by the petitioner. It is contended that the Government are bound by the promises held out by them. It is also submitted that the action to be taken to redress the grievance of the petitioner, is an executive function, which, this Court may compel the Government to perform. The main prayer in the Writ Petition is to issue a Writ of mandamus, commanding the respondents to apply their mind properly to the various representations submitted by the petitioner and to take action on them, as expeditiously as possible. 4. The petitioner rightly concedes that this Court cannot issue a writ of mandamus to the Legislature to enact a law. This Court also cannot issue a writ of mandamus against the Government to undertake a legislation, however desirable the Legislation may be. The main prayer in the representations filed by the petitioner, which are produced in this Writ Petition, is to direct the Government to issue a notification under S.3 of the Act, exempting the retrospective operation of the judgment of the Apex Court from 1.4.1951 to 23.2.1986. S.3 of the Indian Succession Act reads as follows:- "3. Power of State Government to exempt any race, sect or tribe in the State from operation of Act.-- (I) The Stale Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the following provisions of this Act, namely, Ss. Power of State Government to exempt any race, sect or tribe in the State from operation of Act.-- (I) The Stale Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the following provisions of this Act, namely, Ss. 5 to49,58 to 191,212,213 and 215 to 369, the members of any race, sect or tribe, in the State or of any part of such race, sect or tribe, to whom the State Government considers it possible or inexpedient to apply such provisions or any of them mentioned in the order. (2) The State Government may, by a like notification, revoke any such order, but not so that the revocation shall have retrospective effect. (3) Persons exempted under this section or exempted under the operation of any of the provisions of the Indian Succession Act, 1865 under S.332 of that Act are in this Act referred to as'exempted persons'." The power conferred under the above provision on the Government is essentially a legislative function. A notification under the said section will be a piece of subordinate legislation. It is a policy matter for the Government to decide whether it should issue a notification under S.3. This Court can issue a writ of mandamus, if the petitioner has got a legal right and the repository of the power has got a corresponding duty. In Halsbury's Law of England (4th Edition, Vol.1, Paragraph 89), it is stated that the object of mandamus is: "to remedy defects of justice; and accordingly it will issue to the end that justice may be done, in all cases where there is a specific right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that move of redress is less convenient, beneficial and effectual." (Emphasissupplied) Our Supreme Court in "Praga Tools Corporation v. Immanual", AIR 1969 SC 1306, has observed: " The condition precedent for the issue of mandamus is that there is in one claiming it a ligaLright to the performance of a legal duty by one against whom it is sought". (Emphasis supplied) Again, the Apex Court in "Mani Subrit v. Stale ofHaryana", AIR 1977 SC 276, has held as follows:- "It is elementary that it is to be re-stated that none can ask for mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person i s denied a legal right by some one who has legal duty to do something or to abstain from doing something". (Emphasissupplied) Again, the Supreme Court in " State of Kerala v. Lekshmikutty", (1986) 4 SCC 632, reiterated: "It is well settled that a writ of mandamus is not a wril of course or a writ of right, bul is as a rule discretionary. There must be ajudicially enforceable right for the enforcement of which, a mandamus will He, The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on an application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus." (Emphasis supplied) So, the existence of a legal right in the applicant and a corresponding duty in the respondent, is the condition precedent for the issue of a writ of mandamus. In this context, it may be apposite to refer to the jural concepts of 'right' and 'duty'. Salmond, in his jurisprudence, explains the concept of 'right' correlating it with'duty'. The learned Author first explains 'duty' in the following manner;- "A duty is roughly speaking an act which one ought to do, an act the opposite of which would be a wrong. To ascribe a duty to a man is to claim that he ought to perform a certain act". The learned Author goes on to add that in the strict sense, a duty is something owed by a person to another. Then, the concept of 'right' is explained in the following words:? "We have seen that in the strict sense, a duty is something owed by one person to another. Correspondingly, the latter has a right against the former. The learned Author goes on to add that in the strict sense, a duty is something owed by a person to another. Then, the concept of 'right' is explained in the following words:? "We have seen that in the strict sense, a duty is something owed by one person to another. Correspondingly, the latter has a right against the former. The master has a right against his servant, the parent against his child and so on. To ascribe a right to one person is to imply that some other person is under a corresponding duty". The right correlated with duty is described by other learned Authors on jurisprudence as 'right stricto sensu' or 'claim'. According to them, jural concepts of liberty/ privilege, power and immunity can also be termed as 'rights'. 5. The issuance of a notification under S.3 of the Act quoted above, as stated earlier, is a legislative function. By issuing that notification, an amendment is carried out to the Act to a limited extent. So, the principle that no writ of mandamus could be issued to the Legislature or its delegate to frame a Legislation or to issue a subordinate Legislation, will be squarely applicable in this case. The petitioner does not have any right stricto sensu to insist for the issuance of an exemption notification and the Government do not owe any corresponding duty to the petitioner. Therefore, no writ can be issued from this Court to issue a notification under S.3 of the Act. Though the prayer is camouflaged in the form of a direction for disposal of representations, essentially, the prayer is to direct the Government to consider the issuance of a notification under S.3 of the Act. 6. Whether the Government should issue a notification under S.3 of the Act or not, is a policy matter, which the Government alone can decide. The Government may promise that it will look into the matter. This, being an area of policy, the Government can resile from that promise and decline to look into the grievance raised by the petitioner. This Court cannot compel the Government to take policy decisions or to consider taking policy decisions. These are all matters for the Government, which is answerable to the Legislature, to decide. The remedy of the petitioner to redress his grievance and that of his fellow community members, lies elsewhere. This Court cannot compel the Government to take policy decisions or to consider taking policy decisions. These are all matters for the Government, which is answerable to the Legislature, to decide. The remedy of the petitioner to redress his grievance and that of his fellow community members, lies elsewhere. Accordingly, the Writ Petition fails and it is dismissed.