Case Note & Summary
The petition was filed by the Federation of Retail Traders Welfare Association and an individual challenging Rule 35 of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018. The petitioners contended that the rule requiring display of name boards in Marathi was ultra vires Articles 13, 19(1)(a), 19(1)(g), and 21 of the Constitution of India. They also sought a writ of mandamus to restrain the State of Maharashtra and the Mumbai Municipal Corporation from implementing the rule. The court observed that the petition failed to aver a prior demand for justice, which is essential for a mandamus. Additionally, the court found that the mere framing of the rule did not give rise to a cause of action as there was no enforcement or threat of enforcement against the petitioners. The court held that Rule 35 was a reasonable restriction and not violative of fundamental rights. Consequently, the petition was dismissed with costs of Rs. 25,000.
Headnote
A) Constitutional Law - Mandamus - Demand for Justice - A writ of mandamus cannot be issued without a prior demand for justice and its refusal, unless the case falls within well-known exceptions - The petition failed to aver any such demand or refusal, and thus the prayer for mandamus was not maintainable (Paras 2-3).
B) Shops and Establishments - Rule 35 - Validity - Rule 35 of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 requiring display of name boards in Marathi is intra vires the Constitution and not violative of Articles 13, 19(1)(a), 19(1)(g) or 21 - The rule is a reasonable restriction in the interest of the general public and does not infringe fundamental rights (Paras 4-5).
C) Constitutional Law - Cause of Action - Framing of Rules - The mere framing of a rule does not give rise to a cause of action unless it is actually enforced or threatened to be enforced against the petitioner - The petition was premature as no enforcement action was taken (Para 6).
Issue of Consideration
Whether Rule 35 of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018 is ultra vires the Constitution of India and whether a writ of mandamus can be issued without a prior demand for justice.
Final Decision
The petition is dismissed with costs of Rs. 25,000 to be paid to the Maharashtra State Legal Services Authority.
Law Points
- Mandamus requires prior demand for justice
- Rule 35 is intra vires
- No cause of action arises from mere framing of rules
Case Details
2022 LawText (BOM) (02) 75
WRIT PETITION (L) NO. 4162 OF 2022
G.S. Patel, Madhav J Jamdar
Mr Mayur Khandeparkar, i/b Dipesh Siroya; Mr Abhay Patki, Addl GP; Mr DP Singh; Mr Sagar Patil
Federation of Retail Traders Welfare Association & Anr
State of Maharashtra & Ors
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Nature of Litigation
Writ petition challenging the validity of Rule 35 of the Maharashtra Shops and Establishments Rules, 2018 and seeking a mandamus to restrain its implementation.
Remedy Sought
Petitioners sought a declaration that Rule 35 is ultra vires the Constitution and a writ of mandamus restraining Respondents from implementing the rule.
Filing Reason
Petitioners alleged that Rule 35 requiring display of name boards in Marathi violates their fundamental rights under Articles 13, 19(1)(a), 19(1)(g), and 21 of the Constitution.
Issues
Whether Rule 35 of the Maharashtra Shops and Establishments Rules, 2018 is ultra vires the Constitution of India?
Whether a writ of mandamus can be issued without a prior demand for justice?
Submissions/Arguments
Petitioners argued that Rule 35 is ultra vires Articles 13, 19(1)(a), 19(1)(g), and 21 of the Constitution.
Petitioners sought a mandamus without averring a prior demand for justice.
Ratio Decidendi
A writ of mandamus cannot be issued without a prior demand for justice and its refusal. The mere framing of a rule does not give rise to a cause of action unless it is enforced or threatened to be enforced. Rule 35 is a reasonable restriction and not violative of fundamental rights.
Judgment Excerpts
The Petition is filed by a Federation of Retail Traders Welfare Association and an individual. It seeks to challenge Rule 35 of the Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules 2018 framed under the Maharashtra Shops and Establishment (Regulation of Employment and Condition of Service) Act, 2017.
It seems now to have become a habit in this Court to seek the high prerogative remedy of a mandamus without averring that the petitioner has made a demand for justice but this has been denied; or even making a demand at all, let alone explaining how the case fits in the few limited and well-known exceptions to the general rule.
Procedural History
The petition was filed on an unspecified date and heard on 23rd February 2022, when it was dismissed with costs.
Acts & Sections
- Constitution of India: Articles 13, 19(1)(a), 19(1)(g), 21
- Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Act, 2017:
- Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018: Rule 35
