New Vikas Senior Secodary School & ORS. v. State Of Haryana & ORS.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision: 16.09.2015 New Vikas Senior Secondary School and others ....Petitioner(s)

Versus

State of Haryana and others

...Respondent(s)

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA

Present:

Mr. Pankaj Maini, Advocate, for the petitioners.

G.S.SANDHAWALIA, J. (Oral) Admittedly, the petitioner has not approached the respondents for the necessary relief and is seeking a writ of mandamus. It is settled principle that first a demand is to be made before the competent authorities and on account of refusal, this Court can be approached. The said principle was laid down by three Judges Bench of the Apex Court in Saraswati Industrial Syndicate Ltd. etc. Vs. Union of India (1974) 2 SCC 630 wherein it has held as under:- "25. 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 proceedings 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 recognised 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 writ of Mandamus is asked for could be stated as we find it set out in Halsbury's Laws of England (3rd edition 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."

26.

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."

Similar principles were laid down by the Apex Court in Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC 427 wherein, it was held that there has to be a demand which is clear, plain and unambiguous to the concerned officer having requisite authority to perform the act before enforcement of a legal right can be claimed. Similarly in Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and another (2013) 5 SCC 470, the same view was taken.

Faced with this situation, counsel for the petitioner does not press the present writ petition with liberty to approach the respondents for the necessary relief.

Ordered accordingly.

16.09.2015 (G.S. SANDHAWALIA) shivani JUDGE