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A Reflection On The Writ Of Mandamus And Mandatory Injunction

The concept of prerogative writs, commonly known as writs, in India have been influenced trans-judicially from the Legal System of the United Kingdom. These writs came into existence as a mechanism adopted by English Legal System to enforce and impose legal order on the administration. The purpose is to direct the behaviour of public authorities and rendering them accountable by seeking judicial intervention. There are many kinds of writs including habeas corpus, prohibition, certiorari, mandamus and quo warranto, each having their own scope of jurisdiction and application.

However, this paper shall delve into the writ of mandamus with the purpose to draw an analogy with the remedy of Mandatory Injunction as provided in Section 39 of the Specific Relief Act, 1963 (hereinafter "the SRA"). This paper focuses on the element of mandating the performance of an act by a judicial order, which can be achieved by both, the writ of mandamus as well as the mandatory injunction under the SRA. The underlying idea is to find the locus of convergence and divergence of the two key concepts in our legal framework while making a reference to public and private law dichotomy that exists as a legal archetype.

The Writ of Mandamus:

"To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract."[1]

The word Mandamus bears a Latin meaning "we command". It is invoked by judicial intervention to compel the performance of the duties; the public officials are obliged to perform in the due course of the office they withhold. The writ of Mandamus can be issued against not only judicial or quasi-judicial authorities but also the public or government authority discharging the public duty.

The source of enforceability of the writ of mandamus along with all other writs lies in Article 32 and Article 226 of the Indian Constitution in the Supreme Court and the High Courts respectively. A writ petition is generally filed before the above-mentioned constitutional courts where there is a violation of the fundamental rights as conferred by the Part III of the Constitution, however it is an established rule of law that the High Courts exercise wider writ jurisdiction that the Supreme Court as it may sit in judgment in the case involving the breach of rights that may or may not be the fundamental rights.

Moreover, the Hon'ble Supreme Court in the case of Anadi Mukta Sadhguru[2] has held that in contrast to Article 12, the term "authority" in Article 226 must be interpreted liberally. Only when it comes to enforcing Article 32 remedies is Article 12 pertinent. The authority to issue writs for the enforcement of both fundamental and non-fundamental rights is granted to the High Courts under Article 226. Therefore, the phrase "Any person or authority" used in Article 226 should not be limited to the State's statutory powers and instrumentalities. Any other entity or individual carrying out public service may be covered by them. The body's shape is not particularly important. The type of obligation placed on the body is what matters.

The obligation must be examined in the context of the positive duty that the individual or authority owes to the party concerned regardless of the method used to enforce the duty. The relief of mandamus cannot be denied if there exists a positive duty of public nature.

Hence, the High Courts, apart from invocation of writ of mandamus in the cases of breach or enforcement of rights conferred by the Part III of the constitution, may invoke mandamus to enforce the performance of a public duty wherever necessary in due exercise of the office held by any personnel/tribunal/public authority.

Conditions precedent to issuance of a Writ of Mandamus:

  • Existence of a legal right: The principle ubi jus ibi remedium has been rooted in our justice delivery system. The precursor to invocation of a writ of mandamus is that the petitioner must have a legal right to obtain the recourse of the remedy. The right that has been claimed through the mandamus for enforcement must be infringed and the right should qualify the test of being legally protected and judicially enforceable.[3]
  • Existence of a legal duty: The second condition for issuance of writ is the existence of a legal public duty to be positively obliged and discharged by the respondent party. This duty must be imperative, and not discretionary in nature[4].
  • Demand and Denial of the right: The legal right so infringed must have been demanded first by the petitioner and the condition precedent to invocation of the writ of mandamus is the denial or infringement of the right by the respondent so sought by the petitioner.
  • No Alternate Remedy: The doors of the constitutional courts for the invocation of a writ of mandamus shall only be knocked if there exists no alternative remedy to the avail of the petitioner.[5] However, this rule does not operate as an absolute bar to invocation of the writ jurisdiction of the court. The exceptions to this rule could be the enforcement of fundamental rights, violation of Principles of Natural Justice, challenge to the vires of an Act or the order/proceedings being ultra vires the jurisdiction.[6]
  • Good faith: A petition for mandamus shall be tested on the grounds of bona fide intention of the petitioner. The petition must not harass the respondent or made in light of some personal grievances.
  • The writ of mandamus cannot be granted against the executive head of the Union of India and the Governors of the states.[7]
  • It shall not be granted against private individuals or companies that are not entrusted with any public duty to perform except where the state is in collusion with such private entities. The writ of mandamus cannot be invoked to enforce contractual obligations.[8]
  • The legislatures, both state and Union, are immune from the invocation of mandamus if the subject matter of the petition is concerned with commanding or preventing the legislatures to enact legislation[9].

Therefore, it can be concluded that the writ of mandamus is a legal mechanism that individuals can employ if they believe their statutory or fundamental rights have been violated due to an authority's failure to execute a public obligation. It is critical to ensure that the state remains responsible to its citizens and protects them from the abuse of governmental authority.

Mandatory Injunction:

Injunctions are used as a means to grant preventive reliefs to the applicant at the discretion of the competent court. The grant of injunction may be done in two ways, temporary or perpetual. The issuance of temporary injunction has been dealt by the Code of Civil Procedure, 1908 in its Order XXXIX whereas the SRA provides for the perpetual injunction. The injunction can therefore be of mandatory and prohibitory nature. In this paper, we will be looking into the scope and application of the mandatory injunction which has been discussed in the section 39 of the SRA. Like all other injunctions, the relief granted by the mandatory injunction is also a discretionary relief and can only be granted if the conditions specified under Section 39 of the SRA are met with.

Section 39 of the SRA provides:

"When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."

Section 39 thus contemplates that to prohibit the breach of an obligation, wherever it is deemed necessary by the courts, mandatory injunction shall be granted to compel the performance of certain acts. The section provides for the circumstances in which the relief can be granted, which are:
  1. Existence of an obligation on the part of defendant, breach of which shall be alleged by the plaintiff.
  2. The court must be capable of granting such relief and enforce the performance of an act.[10]
The courts while exercising the power under Section 39 of the SRA may compel the performance of an act or abstain the performance of an act that it may deem fit and necessary to prevent the breach of an obligation. When the exercise is of abstinence, mandatory injunction, thus granted, may be called a prohibitory injunction.

Few examples of it could be as below:
  1. A illegally constructs a structure on B's one part of land and threaten to construct on the remaining part. Now, if the court directs demolition of the constructed part, it would take the shape of mandatory injunction. Per Contra, if the court injuncts A from constructing any further structure, it shall be in the nature of prohibitory injunction.
  2. X infringes Z's copyright. If the court is satisfied that there is an infringement in accordance with the Copyright's Act, Z may receive an injunction to restrain the infringement. Such an order will have the nature of prohibitory injunction whereas, if the court orders X to pay the profits earned by him due to infringement, such an order shall be in the nature of mandatory injunction.
It was held in Dorab Cawasji[11] by the Hon'ble Supreme Court that the relief granted under Section 39 of the SRA is generally to preserve the last non-contested status that preceded the controversy. An interim mandatory injunction thus may be granted to preserve the status quo of the subject matter until the full relief may be granted or to compel the reversal of the wrong doings of the party against whom the complaint lies. Like all other injunctions, mandatory injunction shall also be granted only if it qualifies the tri-fold test as below[12]:
  1. The general test is of a plaintiff having a prima facie case. However, for mandatory injunction, the plaintiff must have a strong case, i.e., the requirement is it shall be of a higher standard than a prima facie case that is required generally for all other preventive reliefs.[13]
  2. Injunction if not granted, it may yield to an irreparable or serious harm, that is incapable of being compensated pecuniarily.
  3. The balance of convenience shall strictly be in favour of the plaintiff.
When Mandatory injunction cannot be granted:
  • Where the adequate relief may be granted to the plaintiff by way of pecuniary compensation.[14]
  • Where the Balance of convenience favours the defendant. The burden of proof to prove the balance of convenience in his favour lies on the plaintiff, failing which, the relief so sought shall not be granted.
  • Where the plaintiff has displayed acquiescence in the wrongful acts of defendant.[15]
  • Where it is desired to create a new state of things. Interim mandatory injunction is granted only to restore the undisputed status quo of the subject matter.[16]

Specific Performance vs. Mandatory Injunction

The very fact that plaintiff avers the presence of a certain contractual right and defendant denies it is what makes the remedy of the specific performance available. The plaintiff while averring so, has to establish the existence and validity of the contract in order to get it performed by the opposite party. Per contra, in a suit for mandatory injunction, the plaintiff must satisfy the court that there is a completed contract under which he has acquired the right and to enforce such right, in turn preventing the breach of the obligation, the remedy to compel the performance has been claimed.

The underpinning principle is that a mandatory injunction compelling the performance of an act must not be granted if it amounts to specific performance of positive covenants of a contract indirectly.[17] Another difference is that a suit of mandatory injunction may lie in case of a tortious obligation, whereas the right to contest the suit of specific performance arises out of the existence of a contract.

The injunctive reliefs are subject to the principles of equity and discretion of the court. Courts often take caution when awarding relief for mandatory injunctions, and interlocutory mandatory injunctions need the highest level of satisfaction. A party is not entitled to such remedy by right or course. It is an equitable relief, and the courts must use discretion in such cases so as to reach a cogent decision.

Convergence and Divergence: Reflecting on the Mandamus and Mandatory Injunction

This section of the essay aims to explore the locus of convergence and divergence of the two remedies. An overview of the description of both the remedies gives the idea that both are performing similar functions. Both the remedies, mandamus and mandatory injunction are in the nature of compelling the performance of an act. In this part, I will bring out the dimensions on which the idea of both the remedies converges, and on which it diverges.

A reflection on the above-given text thus provides that the conditions pre-requisite to mandamus are similar to the conditions pre-requisite to the mandatory injunction. In both the cases, there must exist a legal right and there must be an obligation on the defendant, the breach of which has to be prevented. The pre-requisite of presence of petitioner's legal right thus lays down the maxim, Ubi Jus Ibi Remedium as the foundation of both the remedies.

Both the remedies are claimed when there is a denial or refusal to perform the obligation that falls in the part of respondent/defendant as the case may be. However, when it comes to the obligation or duty, it is essentially a public duty which is violated in the case of mandamus, whereas in case of mandatory injunction, the obligation may arise out of contract or may be tortious in nature. The objective while invoking both the writ of mandamus as well as the mandatory injunction is to prevent the breach of obligation that exists on the part of respondent/ defendant.

In both the cases, there is an expectation on the petitioner/plaintiff to come to the court of law with the clean hands and bona fide intentions. The good faith clause has to be abided by, and the plaintiff in the case of mandatory injunction must not have acquiesced the acts of the defendant against which he has sought the mandatory injunction.

In both the remedies, presence of an alternate remedy does make a difference in the application of mind by the judges. The presence of an alternate remedy, however, not absolute, but is a factor influencing the exercise of the discretion given to judges. The alternate remedy in case of mandatory injunction can be equated with the availability of pecuniary compensation to the plaintiff.

The courts while exercising the power to sit in the judgment of mandamus as well as mandatory injunction cases have the power to exercise discretion. Thus, both the remedies cannot be claimed as a matter of right but is subject to judicial discretion. However, in case of the mandamus, where there is a refusal to performance of a public duty, mandamus shall always be invoked. In the case of mandatory injunction, the court has comparatively wider powers to test the tilt of balance of convenience and then exercise its discretion.

The two remedies also diverge on their jurisprudential basis. While injunctions and specific performances of the contracts are founded on the principle of equity, the foundation of mandamus along with other writs has been laid down by the judicial review. Judicial review is the founding principle of the writ jurisdiction of the constitutional courts which can be exercised on generally all the executive, legislative, judicial, or bureaucratic actions.

Thus, even though there are few points of divergence on the ground of jurisprudential basis and the type of obligation that is the subject matter of both the remedies, it would not be wrong to say that what mandamus do in the public law sphere, mandatory injunction does it in the private law domain. Since both the remedies compels the affirmative action, i.e., performance of certain acts based on the duties existing, it can be concluded that mandatory injunction in private law is a counterpart of mandamus in public law.

  1. A. De Smith, Judicial Review Of Administrative Act 540 (4th Ed.)
  2. Anadi Mukta Sadguru Shree Mukta Jeevandas swami Suvarna Jaya v. V.R. Rudani & ors., (1989) 2 SCC 691
  3. Union of India v. S.B. Vohra & Ors., (2004) 2 SCC 150
  4. Binny Limited and Anr. V. V. Sadasivan & Ors., (2005) 6 SCC 657
  5. Godrej Sara Lee Ltd. V. Excise and Taxation Officer-cum-assessing Authority & Ors. 2023 SCC OnLine SC 95
  6. Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1
  7. SP Gupta v. Union of India, 1981 Supp (1) SCC 87
  8. Id Supra note 4
  9. B.S. Rajesh Agrajit v. Union of India, W.P. (C) No. 1091/2020
  10. Lakshmi Narain Banerjee v. Tara Prosanna Banerjee, (1904) ILR 31 CAL 944
  11. Dorab Cawasji Warden v. Coomi Sorab Warden & Ors., AIR 1990 SC 867
  12. Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276
  13. Id. Supra note 11
  14. V.D. Tripathi and Ors. v. Vijai Shanker Dwivedi and Ors., AIR 1976 ALL 97
  15. Dhaniya Bai v. Jiwan, AIR 2003 MP 71
  16. Samir Narain Bhojwani vs. Aurora Properties and Investments, (2018) 17 SCC 203
  17. VS Deshpande, Mandatory Injunction: Its True Nature, 25 Journal of the Indian Law Institute, 429, 430-31 (1983)

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