An Analysis of Mandatory Injunctions

(ii) Mandatory Injunction: A mandatory injunction may be defined as an order of the court not only restraining a person from further wrongful acts but directing him further to restore, as far as possible, the former state of things. A mandatory injunction not only in involves prohibition but also imposes a positive duty on the defendant to do something. According to section 39 when in order to prevent the breach of obligation, it is necessary to compel the performance of certain acts, which the court is capable of enforcing , the court may, in its discretion, grant an injunction to prevent breach complained of also to compel performance of the requisite acts. Under section 40, the plaintiff in a suit for perpetual or mandatory injunction can also claim damages either in addition to, or in substitution of, such injunction.

The Court may in its discretion, award damages. The court under section 42 may grant an injunction restraining the breach of a negative contract, express or implied in those cases where according to clause (e) of section 41 an injunction cannot be granted to prevent the breach of a contract, the performance of which could not be specifically enforced. Therefore, where there is an affirmative agreement to do certain act, coupled with a negative agreement, express or implied, not to do certain act, and the court cannot compel the specific performance of the affirmative agreement, it can still grant an injunction to perform the negative agreement. An injunction is a discretionary remedy, but the discretion must be supplied judicially. But it is necessary that plaintiff must be aggrieved person. In Veish Degree College v. Lakshmi Narain, the Supreme Court observed:

1. The relief of injunction is purely discretionary.
2. The plaintiff cannot claim it as a matter of right;
3. It is more in the nature of equitable relief than a legal remedy.
4. The Court grants the relief according to the legal principles.
5. The Court must keep in mind the principles of justice and fair play.

In this case, the court refused to grant the relief to the plaintiff-teacher as it was a matter of employer-employee relationship, even though it was regulated by the statute, it would have caused undue hardship to the college authorities. The court saves monetary compensation to the plaintiff. The decision of the court is coloured by the private law approach that a service contract is not specifically enforceable.

But this approach should not apply when there is some statutory protection given to the employee or when there is element of public employment in service contract. In Montogemery Municipality v. Sant Singh, the municipal committee imposed a tax on a person on whom it could not be imposed under the Municipal Act. The aggrieved person invoke the relief of injunction, as there was no “other usual mode of proceeding” available to him which could be considered to be “equally efficacious”. According to Section 41, an injunction cannot be granted:

1. To restrain a person form prosecuting a judicial proceeding pending at the institution of the suit in which injunction is sought unless such restraint is necessary to prevent a multiplicity of proceedings;
2. To restrain a person from instituting or prosecuting proceedings in a court not subordinate to that from which an injunction is sought;
3. To restrain persons from applying to any legislative body;
4. To restrain a person from prosecuting proceedings in a criminal matter;
5. To restrain the breach of contract for personal service;
6. To prevent an Act on the ground of nuisance, where the nuisance is of too light in nature or consists only of trifling inconvenience;
7. Where the conduct of the plaintiff or his agent is such as to disentitle him to the assistance of the court;
8. Where the plaintiff has no personal interest in the matter.

The Constitution (Forty Second Amendment) Act, 1976 has curtailed the power of High Court under Article 226 in matters of making interim orders whether by an injunction or stay or in any manner. The High Court could not issue interim orders whether by an injunction or stay or in any manner. The High Court could not issue interim order by way of injunction or otherwise unless the opportunity was given to the other party to be heard except in exceptional circumstances for reason to be recorded in writing.

Even in such exceptional circumstances, the order ceased to have effect on the expiry of 14 days from the date on which it was made, unless before the expiry of this period the other party had been heard. Clause (6) of 42nd Amendment had imposed a ban on interim orders if it had the effect of delaying an enquiry into any matter of public importance, or any offence punishable with imprisonment, or any execution of any project of public utility, or any requisition of property by the government. But these restrictions were removed by the 44th Amendment. Now, under Article 226 the High Court shall have power to issue ex-parte interim orders, whether by way of injunction or stay or in any other manner. However, the court shall have to decide the matter within a period of two weeks from the date when the application for the vacation of the order is made or received whichever is later, failing which such order shall stand vacated. Injunction is an effective method to control administrative action where the authority has acted without jurisdiction, or has abused its jurisdiction or has violated the principles of natural justice. It is also an effective mode to control the exercise of administrative discretion. Therefore, if the administrative authority has not exercised its discretion at all or has exercised it at the discretion of some other body or it is arbitrary, or has exercised an extraneous consideration, or for an improper purpose, or where its exercise is mala fide, injunction would lie. Both injunction and writ of mandamus are similar in many aspects.

Both are discretionary remedies (except in cases of infringement of fundamental rights, the High Court under Article 226 and the Supreme Court under Art 32 of the Constitution) and cannot be claimed as of right. However, there are some differences between both the remedies. A suit for injunction is filed in the District Court but a petition for mandamus is moved to a High Court or Supreme Court.

The remedy of injunction is less expensive and within the approach of ordinary citizens whereas the writ of mandamus is more expensive and may be beyond the reach of many citizens. Oral evidences are taken by the courts in suit for injunction, whereas in a petition for mandamus, the High Courts are generally adverse to investigate the disputed questions of facts by taking evidence. Thus the scope of judicial scrutiny is greater in suit of injunction. In injunction, a claim for damages may also be combined but in a petition of mandamus, may also be combined but in a petition of mandamus, the question of awarding damages does not arise. Mandamus is a constitutional remedy which cannot be excluded by any statute whereas the injunction is a statutory remedy and a statute can bar the courts from entertaining the suits for injunctions. No formality is required in filing a suit for injunction under section 80 of C.P.C. The requirement of prescribed procedure under section 80 of C.P.C. has been lessened by the Code of Civil Procedure (Amendment) Act, 1976. Now, the suit of “an urgent or immediate relief” against the Government or a public officer can be filed, with the leave of the court, without serving any notice. The remedy of mandamus is regarded as more effective and popular remedy. The District Courts take longer time in disposing of case, whereas the High Court disposes of the matter comparatively expeditiously. (B) Declaratory Action A declaratory action signifies a judicial remedy, which conclusively determines the rights of the parties. It does not prescribe any further relief nor any sanction against the defendant. In a declaratory action, there is no direct order against anyone or in favour of anyone but only the definition of rights and obligation of the parties. It removes existing doubts regarding the legal rights of the plaintiff. The essence of the declaratory judgment is that it states the right or legal position of the parties as they stand, without altering them in any way though it may be supplemented by the other remedies in suitable cases. A declaratory judgement by itself merely states same existing legal situation. It requires no one to do anything and to disregard it will not amount to contempt by court. A declaratory judgment differs from other judicial orders as it declares the law without pronouncing any sanction directed against the defendant. In many cases, there may be genuine doubts about the legal rights. In case of public authorities, such doubts may put them in a dilemma for doing the acts might entail ultra vires and no doing may amount omission.

Declaration by a court is a most flexible remedy and gives the court a wide discretion. Declaration by a court is a most flexible remedy and gives the court a wide discretion. The court may grant declaration in lieu of an injunction or may award a declaration to the plaintiff where he has unsuccessfully sued for damages in tort and had not asked for declaratory relief. A declaration action is governed by section 34 of the Specific Relief Act, read with section 9 of the Code of Civil Procedure. Section 34 of Specific Relief Act say – “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or is interested to deny, his title to such character or right and the court may in its discretion make therein a declaration that he is entitled and the plaintiff need not in such suit ask further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” The court will not grant a declaration where the plaintiff is capable of seeking a further relief.

But where the plaintiff is not entitled to further consequent relief on account of some legal bar or circumstances beyond his control, the court may grant such relief. As provided under section 55 of the Specific Relief Act, declaration made by the court is binding only on the parties to the suit and persons claiming through them. A declaratory decree made under section 34 does not operate in rem. Section 34 and 35 are co-extensive in their operation. The declaratory decree is intended to avoid chances of future litigation by removing existing course of controversy. A declaratory action is particularly useful where a legal dispute exists but no positive wrong has been committed or taken place entitling a party to claim coercive relief. But a declaratory action is not based merely on hypothetical question, there must exist some genuine dispute. In Sarat Chandra Das v. Anukul Chandra Mukherji, Justice Mukherji observed, “No declaration can possibly be made on the basis of chance or mere hope entertained by the plaintiff, but a person having even a contingent right in a property may sue for a declaration through the court in the exercise of its discretion may refuse to make such declaration, if it considers the claim to be too remote or that the declaration given would be ineffectual and absorative. The question, therefore, really is not jurisdiction but one of discretion to be exercised by the court.” Prior to the Constitution, a suit for declaration with or without injunction was practically the only form of judicial review available against the government.

But after the Constitution, notwithstanding the flexibility and other advantages of a declaratory action, its use against governmental action has been substantially replaced by the writs under Article 32 and 226. It is now settled that, apart from a suit, declaratory relief may be obtained in appropriate cases, in a proceeding under Article 32 and 226. Apart from Section 34 of Specific Act, 1963, it is usual for the courts to pass declaratory orders whereby they declare an administrative action, rule or statute ultra vires without giving further relief in writ petitions under Article 32 and 226. Conditions for grant of declaration 1.Plaintiff must be entitled to a ‘legal character’ or a right to any property: The word ‘legal character’ may include every jural relationship of an individual which is recognized by law. Legal character is equivalent to legal status which may include official position, sex, profession, marital status, minority, legitimacy, nationality, franchise, etc. The word ‘right to property’ may include any right which is not a mere hope or chance or which is not contractual in nature. The word ‘right’ includes both ‘liability’ and ‘immunity’. Therefore, it would be possible for a person to obtain a declaration to the effect that a certain statute does not apply to him. A suit for declaration would also lie to the effect that an order compulsorily retiring the plaintiff is illegal and ultra vires. In the same way, where the Board of Revenue covered the order of supervision into demission in revisions, it would hold that the plaintiff could sue for a declaration that the Board’s order was without jurisdiction. When the services of a civil servant has been terminated in violation of any statutory or constitutional provision i.e. Article 311 of the Constitution, he may obtain a declaration from the Civil Court that the order purporting to dismiss the plaintiff was void and inoperative and that the plaintiff remained a member of the service at the date of institution of his suit. A declaration may be sought in respect of a right to property. Thus, the plaintiff, the owner of land, can sue the defendant, who claims to use the land as his own or as a public road. It is essential that the plaintiff must show in him a present existing interest in the property, however, distant the possibility of its coming into actual possession and enjoyment may be. In Dumpala Ramchandra Reddi v. Dumpala Kanta Reddi, Andhra Pradesh High Court has observed, “Under section 34, any person entitled to legal character or a right to any property can institute a declaratory suit against another denying, or interested to deny, his title to such character or right and he will be declared so entitled only if he is incompetent to seek for any further relief, it would not be competent for him to seek only for the declaratory relief.

And he will seek any further relief in addition to the declaration only against the same defendant. 2. There must be some danger or detriment to such right: There must be some person or authority denying or interested to deny such character or hypothetical because the courts don’t act as right. The court can refuse to grant declaration if the question is of advisory bodies. It is essential that some genuine dispute should exist, though no violation of the rights of either party may have taken place. 3.Plaintiff must seek further relief: Where the plaintiff is entitled to consequential relief and does not claim it, the court will not grant declaration.

The relief provided for in the section 34 does not mean every kind of relief but one which would complete the claim of the plaintiff and not lead to multiplicity of suit. The relief ought to flow necessarily from the effect of the declaration and should be available in some proceedings. But if the relief is remote and not connected with the cause of action then the plaintiff need not claim it. The relief should be appropriate to and consequent on, the right asserted or denied. A suit for declaration is liable to be thrown out if the consequent relief which the plaintiff can claim is not claimed though the court may permit the plaintiff to amend the plaint. Whether the consequent relief has been claimed or not depends upon the facts and circumstances of each case. A suit for declaration may be thrown out if the plaintiff has not asked for consequent relief besides declaration. If the consequent relief is not claimed then the court would not entertain the suit for declaration.

Where in a suit a relief was confined only to declaration for reinstatement in service of the State Government, it was held in such proceedings, arrears of salary and other consequential relief could not be granted. The Law Commission expressed the opinion that the proviso to section 34 should be abolished. It observed, “The proviso was introduced by the Specific Relief Act with the object of preventing multiplicity of proceedings. The proviso has, however, given rise to a mass of case law as to what is ‘further relief’ and whether ‘further relief’ is such relief as would be sought for in the suit in which as in the court before which the declaration sought. It leads to injustice in many cases and it only results in addition to the revenue to a certain extent. The recommendation of the Law Commission was not implemented when the Specific Relief Act, 1963 was enacted. If the proviso to section 34 is modified as the Law Commission suggested, declaration may come to serve as a useful remedy in administrative law as an alternative to writs. Until a case is decided there is often uncertain whether the plaintiff could have claimed the consequential relief or not. The role of declaratory action in Public Law as a mean of judicial review of administrative action is not appreciatable in India. It is largely utilized as a mode to regulate private relationship than the relationship between administration and citizens. But it does not mean that the use of declaratory action in public law is wholly absent. In cases where the administrative authorities lacks, exceeds or abuses jurisdiction or violates the principles of natural justice, then the declaratory action provides the required relief. In Veruareddi Ramaraghana Reddy v. Kenduru Seshu Reddy, the Supreme Court granted declaration for the enforcement of Public Law. Declaration and injunction may be proper relief in a petition under Article 32 of the Constitution. Declaration is a discriminatory remedy and may be refused if it would be anfractuous as if an adequate alternative exists or on other equitable consideration. A declaration is not granted when it has no utility. The court refused to grant declaration that the grant of such relief was a matter of court’s judicial discretion

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