The central legal point established in the judgment is the requirement for a demand for justice and its refusal before seeking a writ of mandamus, emphasizing the need for public authorities to perform their legal duties and act in a non-arbitrary, reasonable, and rational manner.

JUDGMENT

G.S. Patel, J. - Heard.

2. The Petitioner invokes our extraordinary writ jurisdiction under Article 226 of the Constitution of India inter alia to set aside a Notification dated 5th July 2021 removing the Petitioner from the post of "Member (Person of eminence from the Civil Society) State Police Complaints Authority". Then there is a prayer for a stay of this notification.

3. To begin with, the prayer is inappropriately worded in that it seeks that the notification be quashed by means of issuance of Mandamus rather than a Certiorari. This is not possible.

4. We also note that contrary to a long line of settled decisions of the Supreme Court, this Court and of other High Courts, there is not even an averment that the Petitioner has demanded justice and that justice has been denied. These decisions, some of which are noted below, have held that a failure to do so is fatal to a prayer for Mandamus. The reasoning is clear. A public authority charged with a legal duty must be given an opportunity by the petitioner claiming a legal right to perform that public authoritys legal duty. It is only a refusal or denial to do so that gives the petitioner a right to seek a writ of mandamus.

5. In Saraswati Industrial Syndicate Ltd & Ors v Union of India, (1974) 2 SCC 630; paragraph 24 a three-Judge bench of the Supreme Court inter alia held that it is a well recognized rule that no writ or order in the nature of mandamus would issue when there is no failure to perform a mandatory duty. See, in this context, i.e. the need to show that there exists a public duty, paragraph 11 of State of Haryana v Subash Chander Marwaha & Ors, (1974) 3 SCC 220. The English practice in this regard applies in India as well. There are certain exceptions, When there is no opportunity or means to demand justice, for instance; or conceivably when a demand is an empty formality. but the salutary general rule when a mandamus is sought is governed by settled legal principles. Citing Halsburys Laws of England, 3rd ed:

"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."

6. In Amrit Lal Berry v Collector of Central Excise, New Delhi & Ors, (1975) 4 SCC 714. a three-Judge bench of the Supreme Court (per MH Beg J) said that the rule recognized by the Supreme Court In Kamini Kumar Das Choudhary v State of WB, (1972) 2 SCC 420. was that a demand for justice and its refusal must precede the filing of a petition seeking a writ of mandamus. The absence of such a demand was held to be fatal to the case before the Supreme Court.

7. An emphatic re-statement of the principle is found in paragraph 49 of the Supreme Court decision in State of Haryana & Anr v Chanan Mal & Ors: (1977) 1 SCC 340.

49. (3) Any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a court for such an order even where the alleged obligation is established.

8. The decision of Dr Justice GF Couto of this Court (Panaji Seat) in RXA de Monte Furtado v Administrator, Goa, Daman & Diu & Ors 1982 SCC OnLine Bom 316 : 1983 II LLN 523 puts the discussion neatly summarizes the legal position:

10. Petitioner prays, inter alia, for a writ of mandamus or a writ in nature of mandamus, commanding the respondents to deem that he still continues to hold a grade II post, that the impugned notification and orders shall not affect his services in any manner and that he be paid all the arrears of his salary from the date of the cancellation of his appointm