- (1.) PRAYER of the petitioner in the instant writ petition is as under: (i) to quash and set aside the order dated Feb. 2, 2002 whereby the supply order dated January 16, 2002 was withdrawn. (ii) to issue a writ of mandamus to restore the order dated January 16, 2002 with a direction to allow the petitioner firm to supply 44. 4 million pieces of Nirodh (condom) at different 32 centres as per the communication dated January 22, 2002. (iii) to restrain the respondents 3 and 4 from placing any order to any other firm.
(2.) ADMITTEDLY no notice for demand of justice was served by the petitioner before filing of the writ petition. A writ of mandamus is controlled by equitable principles. It is of very ancient origin, dating back to the time of Edward II. The term `mandamus' seems gradually to have been confined in its application to the judicial writ issued by the King's Bench, which has by steady growth developed into the writs of mandamus. It is a high prerogative writ and is granted to ampliate justice and to preserve a right where there is no specific remedy. The writ of mandamus can not be demanded ex debito justitiae but it is issued only in the discretion of the court. There are four pre-requisities essential to the issue of the writ of mandamus: (i) whether the petitioner has a clear and specific legal right to the relief demanded by him; (ii) whether there is a duty imposed by law on the respondent; (iii) whether such duty is of an imperative ministerial character involving no judgment or discretion on the part of the respondent; (iv) whether the petitioner has any remedy; other than by way of mandamus for the enforcement of the right which has been denied to him. A writ of mandamus is not granted for the mere asking of it. The hypothesis and the basic requirements for the issue of such a writ are that a public body is refusing to do its public duty or it is acting in excess of its authority or openly violating the principles of natural justice. Before issuing the writ of mandamus, demand for justice from proper authority and its refusal is necessary. The requirement that there must be a previous demand and denial of the right sought to be enforced by a petition of mandamus is not merely a technical point. It is a point of substance which must be taken into consideration by the court when it issues a writ of mandamus. For issue of mandamus a demand for justice and its refusal is a condition precedent. Their Lordships of the Supreme Court in Saraswati Industrial Syndicate Ltd. etc. vs. Union of India (1), indicated that 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 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. A petition for a writ of mandamus must be supported by an affidavit sworn by the petitioner, stating his right in the matter in question, his demand of justice and the denial thereof. The writ of mandamus is not granted on the slippery base of facts. Since notice for demand of justice was not served by the petitioner, in my considered opinion the writ petition is not maintainable and the same stands accordingly dismissed. However, in the interest of justice I grant liberty to the petitioner to serve notice for demand of justice on the respondent No. 3 State of Rajasthan. The said notice shall be considered by the High Power Committee constituted vide order dated June 22, 1999 by the Administrative Reforms Department (Group-III) Government of Rajasthan and after providing full hearing to the petitioner the committee shall pass reasoned order. One week time is granted to the petitioner to serve the notice for demand of justice and till the committee considers and pass the final orders in the matter, the State of Rajasthan shall maintain status quo and shall not place any order to any other firm to supply Nirodh (condom ). No costs. .;