Harries, C.J:— This is a petition made under Art. 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 notification made under the West Bengal Land Development and Planning Act, 1948, and the rules framed thereunder.
2. A preliminary point has been taken in this case, namely, that before a writ of mandamus could be issued a demand for performance must be made preceding the application and further performance must have been refused.
3. The demand for performance and refusal must, be established before any writ of mandamus or any writ in the nature of mandamus or any order Under old sec. 45 of the Specific Relief Act could be made. This provision is incorporated in sec. 46 of the Specific Relief Act. But it is equally applicable to a writ of mandamus or a writ in the nature of mandamus.
4. The matter is dealt with in Halsbury's Laws of England, 2nd Ed., Vol. 9, at page 771 in these words:
“As a general rule the writ will not be granted unless the party complained of has shown 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 such demand was met by a refusal”.
5. The provision in sec. 46 of the Specific Relief Act is in these terms:
“Every application under sec 45 (which is an application for an order in the nature of a mandamus must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand of justice and the denial thereof….”
6. It is clear, therefore, that under English Law which was applied on the Original Side of the Presidency High Courts a demand and a refusal had to be proved. Further, such had to be proved under sec 45 of the Specific Relief Act.
7. In the present petition there is no allegation that a demand was ever made or that the demand had been refused. Before this Court could entertain this petition, it would have to be satisfied on evidence, which of course could be an 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; and that being so this petition is bound to fail.
8. The procedure relating to these so-called prerogative writs is new to most Courts in India and special care should be taken to see that the essential facts which have to be established are both alleged and proved when proceedings are taken for these writs. The view which we take was the view expressed by a Bench of this Court in P.K Banerjee v. L.J Simonds(1). In that case the principles governing the issue of a mandamus were discussed and the case should be studied by all persons proposing to file applications for these writs under Art. 266 of the Constitution.
9. In the present case the petition must fail upon this preliminary ground and there is, therefore, no need for the Court to express any opinion upon the merits. The petition, therefore, fails and is dismissed with costs— hearing-fee being assessed at five gold mohurs.
10. The rule is discharged.
Banerjee, J.:— I agree.