Case: Secretary, Cannanore District Muslim Educational Association, Kanpur  Vs. State of Kerala and Ors.

that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows: ..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.... (See para 4, page 85) 46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus: 29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments. 47. In the Constitution Bench judgment of this Court in Life Insurance Corporation of India v. Escorts Limited and Ors. (1986) 1 SCC 264 , this Court expressed the same opinion that in Constitution and Administrative Law, law in India forged ahead of the law in England (para 101, page 344). 48. This Court has also taken a very broad view of the writ of Mandamus in several decisions. In the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr. AIR 1987 SC 537 , a three-Judge Bench of this Court referred to Halsburys Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of Mandamus: ..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual. (See para 19, page 546 of the report) 49. In paragraph 20, in the same page of the report, this Court further held: ...and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it property and lawfully exercised its discretion 50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under: 21. ...mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter common law, custom or even contract. (Judicial Review of Administrative Act 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available `to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. (See Page 1613 para 21) 51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes. 52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view. 53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5]

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. This Court is of the opinion that so far as the right of the government to change its policy is concerned, the High Courts conclusion is correct. The High Court is equally right in holding that the government cannot be tied down to any policy. But unfortunately, the High Court did not examine the impact of the government policy on the admitted facts and circumstances of the case. This Court is of the opinion that High Court especially the Writ Court cannot take a mechanical or strait jacket approach in this matter.24. It appears that the appellant is a religious minority. As a religious minority, it has a fundamental right to establish and administer educational institutions of its choice in view of the clear mandate of Article 30. Apart from the fundamental right of the appellant to establish and administer an educational institution, the right of the appellant to get the sanction of running a Class XII School was also accepted by the government to the extent that the government applied to the High Court for its permission to seek an order for implementation of its decisions dated 08.10.03 and 13.10.05 whereby sanction was given to the appellant to run Higher Secondary Courses. Those decisions of the government to sanction higher secondary courses in favour of the appellant could not be implemented in view of the order of the High Court dated 05.04.06 to the effect that the High Court wanted the aggrieved persons to approach the Court. In the background of these facts, the writ petition was filed and during the pendency of the writ petition came the revised policy of the government. In that policy, it has been made very clear that there is no need to sanction or upgrade government or aided schools in the normal course.25. The High Court should have appreciated the facts of the case and come to the conclusion that the appellants case does not come under the normal course. But the High Court refused to do so and took, as noted above, a mechanical approach.26. The High Court in support of its decision relied on the judgment of the Court of Appeal in Cambridge Health Authority (supra). That was a case of refusal to allocate funds for the treatment of a minor girl who was 10= years old. The child was suffering from non-Hodgkins Lynphona with common acute Lymphoblastic Leukaenia. It was thought that no further treatment was possible except giving the child palliative drugs. The childs father sought further medical opinion and experts advised a second bone marrow transplant, which could only be administered privately and not in a National Health Service hospital, and that too with 10 to 20% chances of success. In the background of these facts the childs father requested the health authority to allocate funds amounting to #75,000 for the proposed treatment which the health authority refused. The father of the child applied for a judicial review of the decision of the health authorities. The question was what the Court should do in such a situation?27. The learned single judge quashed the decision of the health authority and directed it to reconsider its decision. Then on appeal against the decision of the learned single judge, the Court of Appeal allowed the appeal. Sir Thomas Bingham, Master of Roll, presiding over the Court of Appeal held that the learned Single judge failed to recognize the realities of the situation. Considering the constraints of budget on the health authority, the Master of Roll held:Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court (See at page 137, placitum `F)28. But the facts of this case do not have even a remote resemblance to the facts in Cambridge Health Authority (supra). In this case the government was willing to sanction the higher secondary classes to the appellant-institution and to the effect applied to the High Court for getting the necessary permission and that application of the government was disposed of by the Court in the manner indicated above. In between came the change of policy but financial crunch was never the reason for denying the prayer of the appellant to run the higher secondary course.29. While dismissing the Writ Petition, the High Court also relied on the decision of this Court in the case of Umed Ram (supra).30. In Umed Ram (supra), the Respondents, who were poor harijans in the State of Himachal Pradesh wrote a letter to the High Court of Himachal Pradesh complaining about the incomplete construction of the road and also complained of the fact that such construction has been stopped in collusion with the authorities causing immense hardship to the poor people and that is why the Courts intervention was prayed for. The Court treated the said letter as a writ petition and directed the superintending engineer of PWD to complete the work in the course of the financial year.33. Therefore, this decision does not support the conclusion reached by the High Court in this case. On the other hand, the decision in Umed Ram (supra) upheld the power of the Court to act in public interest in order to advance the constitutional goal of ushering a new social order in which justice, social, economic and political must inform all institutions of public life as contemplated under Article 38 of the Constitution.34. Paragraph 21 of the judgment in Umed Ram (supra) which has been quoted by the High Court does not constitute its ratio. The High Court, therefore, with great respect, failed to appreciate the ratio in Umed Ram (supra) in its correct perspective.44. Delivering the judgment J fustice Subba Rao (as His Lordship then was) held that the Constitution designedly used such wide language in describing the nature of the power. The learned Judge further held that the High court can issue writs in the nature of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the use of the expression nature.45. Learned Judge made it very clear that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows:..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself....(See para 4, page 85)46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681 . Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordships opinion in paragraph (29) at page 1697 thus:29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfields case 1968 AC 997 marks the emergence of the interventionist judicial attitude that has characterized many recent judgments.50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. AIR 1989 SC 1607 , this Court examined the development of the law of Mandamus and held as under:21. ...mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter common law, custom or even contract. (Judicial Review of Administrative Act 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available `to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. (See Page 1613 para 21)51. The facts of this case clearly show that appellant is entitled to get the sanction of holding higher secondary classes. In fact the Government committed itself to give the appellant the said facility. The Governments said order could not be implemented in view of the court proceedings. Before the procedural wrangle in the court could be cleared, came the change of policy. So it cannot be denied that the appellant has a right or at least a legitimate expectation to get the permission to hold Higher Secondary classes.52. The appellant is a minority institution and its fundamental right as a religious minority institution under Article 30 also has to be kept in view.53. It is therefore really a case of issuance of mandamus in the appellants favour. Merrill on Mandamus has observed that it would be a monstrous absurdity if in a well-organized government no remedy is provided to a person who has a clear and undeniable right. It has been also observed where a man has a jus ad rem (a right to a thing) it will be absurd, ridiculous and shame to the law, if Courts have no remedy and the only remedy he can have is by mandamus. [See para 11, pages 4-5]