1. This is a petn. made under Article 226 of the Constitution praying for a writ in the nature of mandamus to be issued to compel the opposite party to refrain from or give effect to a certain notfn. made under the West Bengal Land Development & Planning Act, 1948 & the rules made thereunder.
2. A preliminary point has been raised in this case, namely, that before a writ of mandamus could be issued a demand for performance must be made preceding the appln. & further performance must have been refused. The demand for performance & refusal must fee established before any writ of mandamus or any writ in the nature of mandamus or any order under old Section 45, Specific Relief Act, could be made. This provision is incorporated in Section 46, Specific Relief Act. But it is equally applicable to a writ of mandamus or a writ in the nature of mandamus.
3. The matter is dealt with in Halsbury's Laws of England, 2nd Edn., Vol. 9 at p. 771 in these words :
'As a general rule the writ 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, & it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, & that such demand was met by a refusal.'
4. The provisions in Section 46, Specific Relief Act is in these terms :
'Every application under section 45 (which is an application for an order in the nature of a mandamus) must be founded on an affidvit of the person injured, stating his right in the matter in question, his demand of justice and the denial thereof.....'
5. It is clear, therefore, that under English law which was applied on the Original Side of Presidency H. C. a demand & a refusal had to be proved. Further, such had to be proved under Section 45, Specific Relief Act.
6. In the present petn. there is no allegation that a demand was ever made or that the demand had been refused. Before this Ct. could entertain this petn. it would have to be satisfied on evidence, which of course could be on affidavit, that there had been a demand of that which the party seeking the mandamus desired to enforce and that such a demand had been met by a refusal. So far from there being any evidence in this case there is, as I have stated, no allegation even; & that being so this petn. is bound to fail.
7. The procedure relating to these so-called prerogative writs is new to most Cts. in India & special care should be taken to see that the essential facts which have to be established are both alleged & proved when proceedings are taken for these writs. The view which we take was the view expressed by a Bench of this Ct. in P.K. Banerjee v. L.J. Simonds, : AIR1947Cal307 In that case the principles governing the issue of a mandamus were discussed & the case should be studied by all persons proposing to file applns. for these writs under Article 226 of the Constitution.
8. In the present case the petn. must fail upon this preliminary ground & there is, therefore, no need for the Ct. to express any opinion upon the merits. The petn., therefore, fails & is dismissed with costs--the hearing-fee being assessed at five gold mohurs.
9. The rule is discharged.
10. I agree.