Facts of the Case
The Temple Trust filed the Petition. The Petition sought for the State Government to correct the wrong entry in the name of Pune Municipal Corporation. This was because the road was an internal road to trust.
The Urban Development Department, Government of Maharashtra dismissed the suggestion. Further, they held that the land belonged to the Pune Municipal Corporation who is the real owner of the land. The High Court dismissed the Writ Petition. The Petition challenged the Order passed by the Government. The High Court held that the controversial land was under Section 88 of the Regional and Town Planning Act.
Section-88 of the Regional and Town Planning Act states:
“On and after the day on which a comes into force—
(a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;
(b) all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by Arbitrator”.
Justices Indu Malhotra and Indra Banerjee heard the case.
The Bench observed that the private road never belonged to the Pune Municipal Corporation. The Bench on denying to issue a mandamus to correct the wrong entry made stated that-
“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or like Mandamus, but are duty-bound to exercise such power, where the Government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance appropriately and lawfully of the discretion conferred upon the Government or a public authority.”
The Court further stated that-
“The Court is duty-bound to issue a writ of Mandamus for enforcement of public duty. There can be no doubt that an important requisite for the issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”
“The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.
The Bench held that the High Court not only enjoys the power to issue a Writ of Mandamus but at the same time are duty-bound to use these powers for the implementation of public duty.
The Court may itself grant Order or Direction which the Government should have passed in cases where required. The Court should exercise its discretion properly and lawfully.
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