Dismissed

M.S.Vineeth v. State of Kerala

Kerala HC4 Nov 2020WP(C)/23651/2020

Case brief

AI extract

What is this about?

Public interest writ petition seeking mandamus to compel the State and the State Election Commission to strictly enforce government orders banning PVC flex boards and plastic-coated materials as campaign material in the forthcoming local body elections. The court held that mandamus requires an enforceable legal right and found the petition premature, as elections had not been notified, and dismiss

What the court decided

AI extract

M.S.Vineeth Vs State of Kerala — Environment and Pollution | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942

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WP(C). No. 23651 OF 2020(S)

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PETITIONER/S:

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M. S.VINEETH, AGED 50 YEARS, S/O. LATE M.R SREENIVASAN, ADVOCATE, “SHREE NIVAS”, JOSEPH ROAD, KOZHIKODE 673 032.

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BY ADV. SRI. V. T. MADHAVANUNNI

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE KERALA STATE ELECTION COMMISSION, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033, REPRESENTED BY SECRETARY.

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R1 BY SRI. TEK CHAND, SR. GOVERNMENT PLEAEDER R2 BY ADV. SRI. MURALI PURUSHOTHAMAN, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C). 23651/2020

“C.R”

JUDGMENT

Dated this the 4^th day of November, 2020

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S. Manikumar, CJ

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Instant public interest writ petition is filed for the following reliefs:

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(a) To issue a writ of mandamus or such other writ or order directing the respondents to strictly implement the direction in Exhibit-P1 Government order dated 16.02.2020.

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(b) To issue a writ of mandamus or such other writ or order directing the Kerala State Election Commission, Thiruvananthapuram, represented by its Secretary, respondent No.2, to issue guidelines to the candidates in tune with Exhibit-P1.

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(c) To issue a writ of mandamus or such other writ or order directing the 2^nd respondent to issue guidelines to the candidates to use cotton clothes, Cortina cloth paper (plastic free) and poly ethylene which are approved by Pollution Control Board during the election campaign.

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(d) To issue a writ of mandamus or such other writ or order directing the 2^nd respondent to issue guidelines to the candidates prohibiting them from using banned PVC flex, plastic coated clothes like polyester, nylon and Korean clothes in tune with Exhibit-P1 Government order dated 16.02.2020, prohibiting them from using take cotton, fake paper and fake polyethylene materials during election campaign.

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(e) To issue a writ of mandamus or such other writ or order directing respondent Nos.1 and 2 to consider Exhibit-P2 representation expeditiously and take decision thereon.

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Facts leading to the filing of instant writ petition are that petitioner claims to be an advocate by profession and a former Central Government Standing Counsel. He has previously filed W.P.(C) No.9459 of 2020 with respect to the administration of Homeo Medicines for boosting immunity, in view of COVID-19 pandemic. By judgment dated 21.08.2020, we disposed of the said writ petition.

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Petitioner is a permanent resident of Kozhikode town. On 21.10.2020, Kerala State Election Commission, represented by its Secretary, respondent No.2, has announced that election to 21,865 wards of various local bodies in the State of Kerala would be conducted and the final voters list was published on 01.10.2020.

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On 21.10.2020, respondent No.2 issued a guideline, prescribing various precautions to be taken by the political parties, candidates and officials, in view of COVID-19 situation.

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Petitioner apprehends that during the election campaign, candidates may make various types of advertisements. Poly Vinyl Chloride (PVC) flex boards are very common in Kerala, in all the previous election

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campaigns. On 29.08.2019, Government of Kerala had banned the use of PVC flex in the State as per G.O.K.-111/2019/LSGD.

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Petitioner has further stated that since some manufacturers are producing fake compostable carry bags, unable to distinguish from the real compostable ones, Government of Kerala have issued Exhibit-P1 order dated 16.02.2020, clarifying that non recyclable plastic usage is also banned, in the State from 01.01.2020 onwards. As per Exhibit-P1, only plastic free clothes, paper, and Poly Ethylene materials for making hoardings are permitted and while printing, it should carry the logos “recyclable. Pvc. Free”, expiry date, name of printing unit and printing number. In case, the banned materials are used for advertisements, there is a penal provision as per Exhibit-P1 order.

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Contention of the petitioner is that though the Government have issued orders, they are not being implemented strictly by the authorities concerned. Now, elections to the local bodies are scheduled to be conducted in the 1^st week of December, 2020. During election campaigns, a large quantity of PVC flex and plastic wastes would be dumped into the public places in Kerala, which will badly affect the ecological balance and cause pollution. Hence, he made Exhibit-P2 representation dated

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27.10.2020, to the respondents, requesting to strictly implement Exhibit-P1 order, during the coming election and ensure a pollution free environment.

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However, the respondents have not considered the same.

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Being aggrieved, the instant writ petition is filed on the following grounds:

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A) The respondents are bound to implement Exhibit-P1 order in letter and spirit.

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B) The respondents are bound to take steps against displaying of banned PVC boards and hoardings.

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C) Despite the ban ordered by the Government, the banned boards and hoardings are being displayed throughout Kerala.

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D) There is every chance to display hoardings and campaign boards made up of banned materials like PVC flex, polyester clothes, nylon clothes, Korean clothes, and other plastic items in public places during election campaigns.

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E) The respondents are not taking any steps to remove the hoardings and boards made of banned PVC flex, polyester, nylon and Korean cloth materials.

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Based on the above, Mr. V.T. Madhavan Unni, learned counsel for

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the petitioner, made submissions.

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Heard learned counsel for the parties and perused the material

available on record.

W.P.(C). 23651/2020

Exhibit-P1 order dated 16.02.2020 issued by the Principal

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Secretary, Environment (B) Department, Government of Kerala reads thus:

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GOVERNMENT OF KERALA

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Abstract

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Environment Department- Ban on single use plastic items in the State w.e.f. 1.1.2020 - further clarifications - Orders issued

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ENVIRONMENT (B) DEPARTMENT

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G.O.(Ms)No.4/2020/ENVT

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Dated,Thiruvananthapuram, 16/02/2020

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Read 1. G.O(MS) NO. 111/2019/LSGD dt. 29,8.2019

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G.O(MS) No. 6/2019/Envt dt. 27.11.2019

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G.O(MS) No. 7/2019/Envt dt. 17.12.2019

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G.O(RT) 128/2019/Envt dt. 31.12.2019

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G.O(RT) No.6/2020/Envt dt 17.1.2020

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G.O(RT) No.9/2020/Envt dt 23.1.2020

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G.0(MS) NO. 2/2020/Envt dt 27.01.2020

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ORDER

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State Government had imposed a blanket ban on sale, manufacture, transport and storage of single use plastic items in the State wef. 1.1.2020 vide G.O read as 2^nd paper above. It was also ordered that compostable/biodegradable materials having specification as stipulated in the Plastic Waste Management Rules, 2016 could be used as a replacement/substitute for the banned

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single use plastic. KSPCB was authorized vide GO read as 4^th paper above to do tests and verify the degradability of the compostable product and submit recommendations to Government.

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It is now noticed that large quantities of fake compostable carry bags are entering the market circumventing the plastic ban. The public and shop owners are generally unable to distinguish them, defeating the very intention of Government to get rid of plastic from the State. In the above context, State Government vide G.O read as 7^th paper above have issued further clarification listing out the alternative materials that could be used as substitutes for banned single use plastic items. Accordingly, carry bags whether made of compostable materials or other materials were banned and instead only cloth or paper bags are allowed to be used as carry bags.

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In the case of hoardings, Government have already issued detailed order vide G.O read as 1^st paper above banning the use of Flex/PVC materials and replacing them with Cloth or Poly Ethylene materials only. It was clearly mentioned in the order that plastic coated cloth cannot be used. But plastic coated cloth like polyester/nylon/korean cloth continue to be used for hoardings which cannot be allowed.

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Meanwhile, Government have been receiving numerous representations from various quarters seeking clarifications/ suggestions / recommendations on the banned items. In

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Those found to be violating the Government order will be liable to pay fine as specified in the G.O. Read as 1^st and 2^nd above, eventually leading to cancellation of license.

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(By order or the Governor) DR. USHA TITUS PRINCIPAL SECRETARY”

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Exhibit-P2 representation dated 27.10.2020 made by the

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petitioner before the respondents reads thus:

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Reg. with A/D

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The Principal Secretary, Local Self Government Department

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Thiruvananthapuram-695001.

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The Secretary, The Kerala State Election Commission, Vikas Bhavan P.O., Thiruvananthapuram-695033.

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Sir,

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I am an Advocate in profession. On 21-10-2020 No.2 among you had announced that election to 21,865 wards of various Local Bodies in the State of Kerala will be conducted soon. The final voters list to this effect was published on 1-10-2020. No.2 among you had published a guideline on 21-10-2020 in which various precautions to be taken by the political parties, candidates and officials in view of Covid-19.

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Today there was a report in news papers that the Election of Local Bodies in the State of Kerala will be held in the 1^st week of December 2020. The election notification to this effect is expected by 10-11-2020 as per newspaper reports.

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During the election campaign candidates may make various types of advertisements. Poly Vinyl Chloride (PVC) flex boards were very common in Kerala in all previous election campaigns. But on 29-8-2019 the Government of Kerala had banned the use of PVC flex in the State as per G.O.K111/2019LSGD.

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Non recyclable plastic usage is also banned in the State by the Kerala Government from 1-1-2020 onwards. As per G.O. (M.S) No. 4/2020/ENVT dated 16-2-2020 a further clarification was made by the Government. Since many manufacturers were producing fake compostable carry bags, which are unable to distinguish from real compostable ones, this clarification was issued. By the above G.O. Dated 16-22020, the Government had completely banned such carry bags and plastic coated clothes. As per the said order the Government had permitted only cloth (plastic free), paper (plastic free), and Poly Ethylene materials for making hoardings. While printing it should carry the logos “recyclable. Pvc free", expiry date, name of printing unit and printing number. The Government had made these orders to keep the surroundings free of plastic pollution and other pollutions.

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There is a tendency to use PVC despite it's ban. Throughout the State of Kerala one can see PVC flex boards and hoardings. The Government orders are not being implemented strictly by the officers of the State. This causes much pollution in public places. Recently there was a news report in Mathrubhumi Daily that 32 tons of plastic wastes

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are dumped on the sides of National Highways of Kerala. This is an alarming situation.

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Therefore you are hereby requested to strictly implement the Government orders against the use of PVC flex boards, plastic coated clothes and other banned items during the coming election and ensure a pollution free environment.

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Thanking you,

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Yours faithfully,

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Kozhikode, 27-10-2020.

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M.S.VINEETH Advocate.”

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Election Commission of India, New Delhi has issued Manual on

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Model Code of Conduct, for the guidance of political parties and candidates, and other related guidelines, during the month of March, 2019, wherein clause 22.9 provides for restriction on use of plastic during Electioneering. Clause 22.9 of the guidelines reads thus:

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“22.9. Restriction on Use of Plastic during Electioneering

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The Election Commission in the interest of environment, has advised the political parties/candidates vide letter dated 16 March 2016 to avoid use of plastic/polythene and similar nonbiodegradable materials for preparation of posters, banners etc., during election campaign.”

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Apart from the above, a Hon'ble Division Bench of this Court in

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the order dated 11.03.2019 in W.P.(C) No.7193 of 2019 has considered a communication dated 26.02.2019 issued by the Election Commission of India, addressed to all the recognized National/ State Political Parties,

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which required everyone to make the forthcoming election eco-friendly, and opt for elimination of single-use plastic materials in the election campaign. Said communication is reproduced:

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“.................In this connection, Ministry of Environment, forest and Climate Change has approached the Commission vide letter No.12/79/2018-HSMD(Pt.) dated 17^th January, 2019, (copy enclosed) with the request to impress upon all concerned to take up sustainable practices and try using alternate option to singleuse plastic during elections. It, inter-alia, mentions:-

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“A lot of the campaigning material including posters, cut-outs, hoardings, banners, political advertisements, etc., is made of plastic. After the elections, the campaigning materials, are discarded and become waste. Such single-use plastic waste generated during campaigning does not get collected and causes choking of drainage and river systems, ingestion by stray animals, and water pollution, open air burning, etc. leading to adverse impacts on human health and environment. Some of these plastics are Poly Vinyl Chloride (PVC) based, which produces toxic emissions on burning.

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A number of alternate options to use of plastic in campaigning material are available such as compostable plastics. Natural fabrics recycled paper material etc., which have a lesser environmental impact. Such materials need to be promoted as a sustainable and environmentally sound management practice. The upcoming General Elections present an excellent opportunity to introduce a behavioral change in election campaign and to promote sustainable practices.”

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Your attention is also drawn to Para 3 of Commission's instructions No.509/241/ECI/LET/FUNC/JUD/RCC/2011 dated 20^th April 2018, which specifies that:

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“The Solid Waste Management Rules, 2016 and the Plastic Waste Management Rules, 2016 and other applicable laws in this regard are hereby adopted for disposal of the campaign material by the local municipal authority and the cost for the same shall be recovered from the candidates or political parties, as the case may be, in accordance with the polluter pays principle.”

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Accordingly, the Commission reiterates that all political parties should take adequate steps and measures to not use single-use plastic as campaign materials (posters, banners etc.,) during the elections, in the interest of human health and environment.

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…................................................”

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Based on the above communication, a Hon'ble Division Bench of this Court, in the abovesaid order dated 11.03.2019 in W.P.(C) No.7193 of 2019, has directed that all the candidates and the National/State political parties must strictly adhere to the aforesaid guidelines of the Election Commission, so that only the eco-friendly materials alone are used during the election campaign and that, there should not be any use of PVC flex boards and other such non-degradable materials, as campaign material, in the State of Kerala.

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Pursuant to the direction of this Court, Election Commission has addressed the Chief Electoral Officers of Kerala, Thiruvananthapuram, by letter dated 19.03.2019, that the order of this Court and the Commission's instructions shall be brought to the notice of all the DEOs, ROs, other election authorities, candidates and political parties, based in your State to ensure strict compliance of the order.

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Mr. V. T. Madhavan Unni, learned counsel for the petitioner,

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conspicuously has failed to ascertain, as to what Election Commission of India had directed and also the directions of this Court. On the aspect of a Public Interest Litigation, we deem it fit to consider the following decisions.

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In Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan & Others [(2003) 7 SCC 546], the Hon'ble Apex Court has summarised the principles with respect to filing a Public Interest Litigation and they are reproduced:

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“(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

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The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. {See S.P.

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Gupta v. Union of India, People's Union for Democratic Rights v. Union of India [(1982) 2 SCC 494], Bandhua Mukti Morcha v. Union of India and Others [(1984) 3 SCC 161] and Janata Dal v. H. S. Chowdhary [(1992) 4 SCC 305)]}

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(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. {See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi [(1978) 4 SCC 104] and Hussainara Khatoon and Others v. Home Secretary, State of Bihar [(1980) 1 SCC 81)]}

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(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held:

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"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this

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touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138)

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(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. {See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India , (AIR 1981 SC 344), S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333]}.

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(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.

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(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P. , [1989 Supp (1) SCC 504] and Forward

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Construction Co. v. Prabhat Mandal (Regd.), Andheri and others [(1986) 1 SCC 100]}

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(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. {See Ramsharan Autyanuprasi v. Union of India and Others [1989 Supp (1) SCC 251]}

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(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. {See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others [(1987) 1 SCC 227]}.

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(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such a Committee. {See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar [(1989) Suppl 1 SCC 644] and A.P. Pollution Control Board v. Prof. M.V. Nayudu [(1999) 2 SCC 718]}. In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held,-

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“61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions

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for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some selfimposed restraint on public interest litigants."

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This Court in the unreported judgment dated 30.06.2020 in

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B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C)

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No.12109 of 2020], at paragraph 45, held as under:

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“45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832], it has been summarised by the journal thus:

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“(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

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(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

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(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

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(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

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(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

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(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

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(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

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(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

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(9) The misuse of public interest litigation is a serious matter of concern for the judicial process.

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(10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears.

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(11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes.

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(12) This Court has a long list of pending cases where the personal liberty of citizens is involved.

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(13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice.

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(14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda.

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(15) This has spawned an industry of vested interests in litigation.

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(16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention.

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(17) Worse still, such petitions pose a grave danger to the credibility of the judicial process.

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(18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law.

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(19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services.

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(20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.

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(21) Courts resolve disputes about legal rights and entitlements.

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(22) Courts protect the rule of law.

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(23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.”

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Mr. M. S. Vineeth, the petitioner, an advocate and a former Central Government Standing Counsel, who has filed the instant Public Interest Litigation, has not made any attempt to verify the Code of Conduct issued by the Election Commission of India on the previous occasion. On mere apprehension that plastics would be used in the ensuing elections, he has filed the present writ petition.

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Election Commission has not even notified the schedule for the

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elections. Like in 2019, if elections are notified, the Commission is

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expected to issue necessary instructions, in the form of Code of Conduct and other directions. Even before the same, writ petition has been filed, for a a writ of Mandamus.

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On the aspect as to when mandamus can be issued, we deem it fit to consider few decisions.

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(i) In State of Kerala v. A. Lakshmi Kutty reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. 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 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.

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(ii) In Comptroller and Auditor General of India v. K.S.Jegannathan , reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4^th Edition, Vol. I, Paragraph 89, about the efficacy of mandamus:

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"89. Nature 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 legal 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 mode of redress is less convenient, beneficial and effectual."

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(iii) In Raisa Begum v. State of U.P. , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.

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(iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.

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(a) In State of U.P. and Ors. v. Harish Chandra and Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows:

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“10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....”

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(b) In Union of India v. S.B. Vohra reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a

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person, who has a legal duty to perform, but has failed and/or neglected to do so.”

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(c) In Oriental Bank of Commerce v. Sunder Lal Jain reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:-

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“11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:

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“Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.

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Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

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Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial

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discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances.

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Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.”

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These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others , [AIR 1977 SC 2149], after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, (AIR 1966 SC 334); Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, (AIR 1962 SC 1210) and Dr. Umakant Saran v. State of Bihar, (AIR 1973 SC 964), this Court observed as follows in paragraph 15 of the reports :

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"15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties

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prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."

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(v) When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:

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“Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its

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conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied)

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In the light of the above discussion and decisions, writ petition is

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liable to be dismissed and accordingly, we do so.

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Sd/S. MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

krj

W.P.(C). 23651/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 COPY OF THE ORDER PASSED BY THE GOVERNMENT OF KERALA IN G.O(M.S) NO. 4/2020/ENVT DATED 16-02-2020. EXHIBIT P2 COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE RESPONDENTS DATED 27-10-2020. EXHIBIT P3 COPY OF THE POSTAL RECEIPT ISSUED BY THE POSTAL AUTHORITIES DATED 27-10-2020 WHILE REGISTERING EXHIBIT P2 REPRESENTATION TO THE 1ST RESPONDENT. EXHIBIT P4 COPY OF THE POSTAL RECIEPT ISSUED BY THE POSTAL AUTHORITIES DATED 27-10-2020 WHILE REGISTERING EXHIBIT P2 REPRESENTATION TO THE 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS:- NIL

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//TRUE COPY//

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P.A. TO C.J.

M.S.Vineeth v. State of Kerala

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M.S.Vineeth v. State of Kerala

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