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2020 DIGILAW 2324 (KAR)

M. N. Murthy v. State Of Karnataka

2020-12-02

ABHAY S.OKA, S.VISHWAJITH SHETTY

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JUDGMENT/ORDER : 1. This is one of those several cases where a writ of mandamus is sought only for directing the respondents in this writ petition under Article 226 of the Constitution of India to decide a representation made by the petitioner. 2. As far as a writ of mandamus is concerned, the well settled law has been reiterated by the Apex Court in the case of Saraswati Industrial Syndicate Ltd. and others vs. Union of India, (1974) 2 SCC 630 . Paragraphs-24 and 25 of the said judgment read thus: "24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. 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 recognized 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 Edn.), 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. These appeals must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs." (Underlines supplied) 3. As far as a writ of mandamus is concerned, a High Court can issue such a writ enjoining the respondents to perform their statutory duty. These appeals must be and are, hereby, dismissed but in the circumstances of the case we make no order as to costs." (Underlines supplied) 3. As far as a writ of mandamus is concerned, a High Court can issue such a writ enjoining the respondents to perform their statutory duty. However, the condition precedent for invoking the jurisdiction of this Court for seeking a writ of mandamus is that the petitioner must demand justice and seek compliance of statutory obligations of the respondents. 4. When the question of making such a demand arises, the same has to be made to the authority, which is under the legal obligation to do or not to do a particular act. For example, if a grievance of writ petitioner is about the failure of a municipal corporation to take action of demolition of an illegal construction, naturally the demand in writing has to be made to the competent authority under the Karnataka Municipal Corporations Act, 1976, which is empowered to take action of demolition. If the representation is made to an authority which is not competent to take action as demanded in the representation, the said authority is not under an obligation to act as per the representation. 5. The well settled rule is that ordinarily while filing legal proceedings, if more efficacious relief can be sought by a litigant, he must seek that relief. 6. In the present case, the grievance of the petitioner is that a football ground and a garden are sought to be misused for private use. We have perused the representation dated 4th September 2020 at Annexure-C. The representation is addressed to the State Government, to the Commissioner of Bruhat Bengaluru Mahanagara Palike (BBMP) and several other officers of BBMP. Such a representation is not at all proper on the basis of which a writ of mandamus can be claimed. The representation has to be addressed only to the authority which is under a legal obligation to take action. Moreover, the petitioners in this writ petition could have prayed for more efficacious relief of preventing the respondents from causing any damage to the football ground and the garden. However, that relief is not claimed though on 11th of November 2020, we had granted time to the petitioners to apply for amendment. But, the petitioners have not chosen to apply for the amendment. 7. However, that relief is not claimed though on 11th of November 2020, we had granted time to the petitioners to apply for amendment. But, the petitioners have not chosen to apply for the amendment. 7. Writ jurisdiction is always discretionary and equitable. In the facts of the case, the petitioners could have claimed more efficacious relief. They have omitted to do so. Therefore, a writ petition seeking a writ of mandamus directing the respondents to consider the representation made by the petitioner cannot be entertained. 8. That is the only ground on which we decline to entertain this writ petition and the same is accordingly rejected. 9. This order will not prevent the petitioners from filing a fresh petition seeking appropriate reliefs.