MOHAMMED LAFFAR, J.

Admittedly, the Petitioner is the owner of lot 1 in Plan bearing No. 1606 dated 02-12-1993 made by Hettige, Licensed Surveyor marked as P1C, and the 9^th Respondent is the owner of lot 2 of the same. The lot No. 14 is the common right of way to the aforesaid lots. The Petitioner has constructed a house in her said premises and subsequently, the 9^th Respondent constructed a three-storied house adjoining the house of the Petitioner. The Petitioner states that the rainwater flowing from the right side blind wall of the 9^th Respondent’s house seeps through a very narrow space of the left side blind wall of the Petitioner’s made several complaints to the Urban Council, Maharagama and the Ministry house, dampening and causing patches on the Petitioner’s wall. The Petitioner of Local Government and Land of the Western Province with regard to this matter (P13, P14A). The Petitioner further states that the 9^th Respondent has encroached the right of way and the turning circle (lots 13 and 14 in plan P1C by building his house. In these circumstances, the Petitioner took up the position that;

1. Construction of the blind wall by the 9^th Respondent adjoining

2. The 1^st and 4^th Respondents have approved the 9^th immediately to the Petitioner’s blind wall is illegal. construction without considering its nature and its effect on the adjoining Respondent’s said occupiers.

3. The 9^th Respondent has encroached the right of way and the turning circle.

4. The 1^st and 4^th Respondents were obliged to take necessary steps against the illegal construction and obstruction made by the 9^th Respondent.

In this scenario, the Petitioner is seeking, inter-alia, a Writ of Mandamus directing the 1st to 6th Respondents to institute legal action against the 9th Respondent pertaining to the said illegal construction and/or to take necessary steps to remove the said purported illegal construction.

A writ of mandamus is a judicial remedy in the English and American common law system consisting of a court order that commands a government official or entity to perform an act it is legally required to perform as part of its official duties or to refrain from performing an act the law forbids it from doing.

The Supreme Court in Weligama Multi Cooperative Society Vs. Daluwatta, 1984-1SLR-195. observed that;

“Mandamus lies to secure the performance of a public duty, in the performance of which an applicant has sufficient legal interest To be enforceable by Mandamus the duty to be performed must be of a public nature and not of a merely private character. A public duty may be imposed by statute, charter or the common law or custom.”

In Ratnayake Vs. C.D. Pwrera, 1982-2SLR-451. the Supreme Court held that;

“The general rule of Mandamus is that its function is to compel a public authority to do its duty. The essence of Mandamus is that it is a command issued by the superior Court for the performance of public legal duty. Where officials have a public duty to perform and have refused to perform, Mandamus will lie to secure the performance of the public duty, in the performance of which the applicant has sufficient legal interest. It is only granted to compel the performance of duties of a public nature, and not merely of private character that is to say for the enforcement of a mere private right, stemming from a contract of the parties”

In the case at hand, at first, it is to be ascertained whether the construction of the 9^th Respondent is illegal. It is substantiated by the documents marked as 9R3, 9R4, 9R4a and P4 that the 9^th Respondent had constructed his house in accordance with the approved plan and thereafter, he had obtained the Certificate of Conformity as well. There is no iota of evidence before Court to establish the fact that the 9^th Respondent had constructed an unauthorized building. In this scenario, it is apparent that there is no statutory duty cast upon the Respondents to institute action against the 9^th Respondent to demolish his construction. Acco