(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India Praying to issue a Writ of Mandamus to give full effect to the Government Order Dated 09.01.2013 (Annex-B) by taking all steps necessary for putting up of Swami Vivekananda Memorial and Cultural Center and also the directions issued in the Letter Dated 03.05.2014 (Annex-K) issued by the R-3 to the R-4 to enable the Petitioners to have the full use of premises and Etc.
These Petitions having been heard and reserved on 21.03.2017, coming on for Pronouncement of Order this day, S.Sujatha J., passed the following:)
1. The petitioners have sought for the following reliefs.
"[i] Issue a writ of Mandamus to give full effect to the Government Order bearing No.ED 771 LIB 2012 dated 09.01.2013 [Annexure-B] by taking all steps necessary for putting up of Swami Vivekananda Memorial and Cultural Center and also the directions issued in the letter dated 03.05.2014 [Annexure-K] issued by the Respondent No.3 to the Respondent No.4 to enable the petitioners to have the full use of the premises.
[ii] To set aside the direction issued in the letter bearing No.ADM2[2] Transfer 6210/12-13 dated 31.05.2014 issued by the Respondent No.3 to the Respondent No.4, produced herewith as [Annexure-R] and consequently direct the State to shift the School in terms of the letter dated 3.5.2014. [ii][a] In the alternative to issue a Writ of Mandamus directing the respondents to implement the decision taken in terms of the letter of the respondents dated 04.02.2015 and minutes dated 26.11.2014 communicated to the petitioners produced as Annexure-S5 and S6."
2. The Government of India decided to commemorate the 150th Birth Anniversary of Swami Vivekananda in a befitting manner and accordingly constituted a committee known and called as 'National Implementation Committee for Commemoration of 150th Birth Anniversary of Swami Vivekananda' [in short NIC] under the Chairmanship of the then Hon'ble Prime Minister for implementing the decisions of the NIC and chalk out programmes and activities for the proposed celebrations to promote renewed interest particularly in youth in values, thoughts and ideals of Swami Vivekananda.
3. In this regard, the Union and State Governments took several steps and several programmes were conducted throughout India. In pursuance thereof, the Government of Karnataka also adopted a Twelve Point Programme to commemorate the 150th Birth Anniversary of Swami Vivekananda. It is in furtherance of the same, the State Government vide its order dated 16.8.2012 constituted a committee to implement programmes and organize functions to commemorate the 150th Birth Anniversary of Swami Vivekananda. Various monitoring committees were also constituted to oversee the different programmes. The Monitoring Committee for the programme of Renovation and Building Cultural Centre decided at its meeting held on 31.8.2012, to shift the BRC building belonging to Department of Education situated in the land premises in question to some other place by retaining the existing Shiva Temple and to merge the NTM School with Devaraja Government Higher Primary School which is at a distance of about 200 meters. It was further decided to handover the entire premises including the NTM School building and land to Ramakrishna Math and Mission for establishing a memorial for Swami Vivekananda - Swami Vivekananda Cultural Youth Centre - the Viveka Smaraka. The State Government passed an order dated 9.1.2013 to handover the property to the petitioners. It is contended that the Deputy Director of Public Instructions, Mysore, has handed over the property to the petitioners on 15.3.2013 and they are in possession of the entire property handed over to them; the Khata of the said property has been registered in the name of the petitioners and they are paying municipal taxes and other cesses as required under law. The decision to handover the property in question is a part of the Twelve Point Programme of the State Government to commemorate the 150th Birth Anniversary of Swami Vivekananda.
4. In the 6th Meeting of the NIC held on 11.12.2013 under the Chairmanship of the then Defence Minister, the proposal relating to construction of Swami Vivekananda Memorial Cultural Center was approved and decided that the Ministry of Culture would provide 5 Crores and the balance requirement of funds would be provided by the Ramakrishna Math, Belur, West Bengal. In pursuance thereof, the Government of India has released a sum of Rs.25 lakhs to start the project.
5. When the things stood thus, a Public Interest Litigation was filed by one Mr. Hoysala R, Advocate, Mysuru, before the Division Bench of this Court in WP No.6626/2013 challenging the order passed by the Government on 9.1.2013 which came to be dismissed on 27.9.2013 with costs of Rs.5,000/-. Another petition filed by Meera Nayak and others challenging the very same order passed on 9.1.2013 in WP No.16376/2013 before the Division Bench of this Court was dismissed as withdrawn. Respondent No.3 had issued an order on 3.5.2014 to shift the school to the nearby Devaraja Government Higher Primary School immediately. Some persons filed a complaint before Juvenile Justice Board [JJB] Mysore, which came to be closed by passing an order on 18.1.2014 against which an appeal was filed in Cr. Misc. No.70/2014 before the Addl. District and Sessions Judge at Mysore and thereafter an application seeking restraint order against the State not to handover possession of the property in question to the petitioners in terms of the order dated 9.1.2013 came to be rejected on 27.5.2014. However, Respondent No.3 passed an order on 31.5.2014 directing the Respondent No.4 to admit students of the NTM school in the same premises for the academic year 2014-2015, based on the oral instructions of the Hon'ble Chief Minister, which is impugned in this writ petition.
6. The learned Senior Counsel appearing for the petitioners submitted that the petitioners have made all arrangements to establish "Swami Vivekananda Cultural and Youth Centre". Once the project is completed the younger generation would be the beneficiaries. Some of the programmes proposed to be undertaken are:
[a] Short term Vocational course
[b] Courses on language improvement both in English and Kannada
[c] Study of Ramakrishna Vivekananda Literature
[d] Soft skill courses with higher values
[e] Personality development and leadership training
[f] Study centre for students of rural and slum background
[g] Short term courses on
[i] Spiritual and Social Values
[ii] work culture
[iii] de-stressing session
[iv] courses on Yoga, Pranayama and Meditation
[v] Short term courses on integrated rural development.
7. It was further submitted as under:
The State Government having granted the land to the petitioners for the purpose of putting up Swami Vivekananda Cultural and Youth Centre and having delivered possession of the property in question ought not to have issued letter dated 31.5.2014 to the Respondent No.4 to run the NTM School in the same premises for the academic year 2014-2015. The Respondent No.3 issued a letter dated 3.5.2014 to Respondent No.4 to shift the school to nearby school premises and instead of enforcing its own directions, took a U-Turn by issuing another letter dated 31.5.2014 to admit the students in the same school which is illegal and contrary to the earlier orders. The direction issued is illegal, perverse and contrary to the well settled principles of law.
8. The attempt to challenge the order dated 9.1.2013 passed by the State Government being failed in view of the Division Bench order of this Court dated 27.9.2013 i.e., the order dated 9.1.2013 being upheld, the State Government has to adhere to the said order of grant. Complaint filed before the Juvenile Justice Board also came to be closed and Criminal Appeal filed against the same being rejected, the matter had reached finality. Having failed in the attempts made by the vested interests to challenge the order dated 9.1.2013, persuaded respondent No.3 to issue the letter dated 31.5.2014. The khata of the said property has been transferred in the name of the petitioners and taxes are being paid upto date and have made all arrangements to draw up the plans and have taken steps to start the work of construction. Having delivered possession of the property to the petitioners, it is too late for the State to prevent the petitioners from using the property in order to put up Vivekananda Memorial. Swami Vivekananda had visited large number of places and buildings which have been restored, renovated and preserved apart from the Vivekananda Rock Memorial at Kanyakumari. Swami Vivekananda in the course of his travel throughout India before he went to the West, visited Bangalore and Mysore in the latter part of 1892. He was at Belgaum in October 1892 and then he came to Bangalore where he met the then Dewan of Mysore Sir K. Seshadri Iyer who was charmed by Swamiji's wisdom and vision, took him to Mysore in November 1892. Swami Vivekananda met the Maharaja of Mysore addressed an Assembly of Pundits at the Mysore Palace and the Maharaja offered to bear the expenses of Swamiji's the then proposed visit to the West. During his visit to Mysore, Swami Vivekananda stayed at the place which is now identified for establishing Viveka Smaraka that is the land at Narayana Shastri Road. The State Government passed an order on 9.1.2013 to handover possession of the property having great significance to start the Viveka Smaraka, deciding to shift the NTM School with 22 students then, to Devaraja Government Higher Primary School. Contrary to the decision taken by the Government, issuance of the letter dated 31.5.2014 by the Respondent No.3 is ill founded and requires to be set aside.
9. That pursuant to the orders passed by this Court, the respondents called for meeting in terms of Annexure-S2 on 13.6.2014. The petitioners gave a representation on 10.7.2014 in terms of Annexure-S3 and submitted photographs produced at Annexure-S4. There were certain options put forth in the said representations. It is submitted that these suggestions were given out of deep concern for the cause of united all-round support of the citizens of Mysore and the convenience of the Government of Karnataka in response to the amicable negotiation suggested by the Court and maintaining the sanctity of the statements made before the Court.
10. A meeting was held again on 26.11.2014 and three Hon'ble Ministers were also present. A consensus emerged in retaining NTM School as it was and in the alternative to give petitioners the entire portion of the rear side of NTM School viz., Seshadri Bhavan, Commercial Tax Building, garage portion, open space around all the buildings, in addition to the portion already granted excluding the portion of NTM School building and eventually the respondents wrote a letter dated 4.2.2015 enclosing the decision taken by the three Hon'ble Ministers. The respondents have not implemented the decision taken at the Meeting held on 26.11.2014 in terms of the letter dated 4.2.2015. In the interregnum, the Central Government which had granted a sum of Rs.5 Crores only towards the project namely, Constructing and Establishing "The Swami Vivekananda Memorial Cultural Youth Centre" at Mysore, has written a letter to the petitioners that the grant made earlier would have to be utilized before 30.9.2015. On special appeal, for the delay caused due to the unforeseen circumstances, the Central Government has extended time till the end of September 2015 and now the matter is pending for consideration before the Central Government for further extension. Therefore any delay in commencement of the work would not only be leading to escalation of costs, for reasons not of the petitioner's making, but also cause severe embarrassment to all concerned. The fact that the Central Government has given its full support to the project and accorded financial grant, signifies the national importance attached to this project and accordingly the learned Counsel seeks to allow the writ petitions setting aside the impugned order dated 31.5.2014 [Annexure-R] to the writ petitions.
11. The learned Counsel has placed reliance on the following Judgments:
[A] 'URBAN IMPROVEMENT TRUST AND OTHERS v. MAHARANA PRATAP SMARAK SAMITI
[B] 'T.S.R. SUBRAMANIAN AND OTHERS v. UNION OF INDIA AND OTHERS' [(2013) 15 SCC 732] D.B.CIVIL SPECIAL APPEAL Nos.444 OF 1971 AND 117 OF 1972 [RAJ]
[C] 'CENTURY SPINNING AND MANUFACTURING COMPANY LTD., AND ANOTHER v. THE ULHASNAGAR MUNICIPAL COUNCIL AND ANOTHER' [1970 [1] SCC 582]
[D] 'GUJARAT STATE FINANCING CORPORATION v. M/S. LOTUS HOTELS PVT. LTD.,' [(1983) 3 SCC 379]
[E] 'UNION OF INDIA AND OTHERS v. GODFREY PHILIPS INDIA LTD.,' [AIR 1986 SC 806]
[F] 'ISHWAR DUTT v. LAND ACQUISITION COLLECTOR AND ANOTHER' [(2005) 7 SCC 190]
[G] 'B.H. VEERESHA v. THE GOVERNMENT OF KARNATAKA BY ITS CHIEF SECRETARY AND OTHERS' [ILR 2006 KAR 610]
[H] 'MANIPUR VASANT KINI v. UNION OF INDIA' [ILR 1998 KAR 954]
[I] 'HOPE PLANTATIONS LTD. v. TALUK LAND BOARD, PEERMADE and ANOTHER' [(1999) 5 SCC 590]
[J] 'GULABCHAND CHHOTALAL PARIKH v. STATE OF GUJARAT' [AIR 1965 SC 1153]
12. Learned Additional Advocate General appearing for the Respondent Nos. 1 to 4 would submit that the reliefs sought in the prayer No.1 to the writ petitions is in the nature of specific performance and the petitioners are not entitled to the said relief, cannot be enforced under Article 226 of the Constitution of India, moreover, when the petitioners do not have the possession of the land. If at all, they are raising such a grievance, they must approach the civil Court to enforce such rights by establishing the same. It was contended that the grant order itself was subject to various incidents. It is given as gratis and further the grant cannot be extended beyond the grant order as is now contended. According to the learned Counsel, the grant order dated 9.1.2013 specifically provides that it is sanctioned and ordered by the Government to handover 36,591.66 sq. feet land comprising of the BRC Building and premises adjacent to Viveka Memorial situated on Narayana Shastri Road, Mysore, free of cost to Sri Ramakrishna Math and Belurmath, Calcutta, for the purpose of establishment of Vivekananda Memorial and the Swami Vivekananda Cultural Youth Centre. But, the petitioners got property transferred document dated 15.3.2013 as the Government of Karnataka had ordered that NTM School building and the land attached to and also the adjacent land of ARC Building located in the premises of Vivekananda Smaraka should be transferred free of cost to Sri Ramakrishna Ashram, Mysore/Petitioner No.1, a branch of Petitioner No.2 in the order/instruction. Utmost, the Deputy Director of Public Instructions, Mysore, would have transferred the property as mentioned in the order dated 09.01.2013 to the extent of 36,591.66 sq.feet. However, the petitioners got the khata transferred in their name to the extent of 46,659 sq. feet. The petitioners in the guise of the grant order are trying to grab the property more than the extent specified in the grant order which is wholly untenable. The petitioners cannot seek for enforcement of such a grant under Article 226, in effect, the petitioners are seeking for non interference with the "paper possession" by injuncting the Government from reversing/modifying the decision in view of several factors which were not earlier taken note of. As such, the writ petitions are premature. The petitioners have approached this Court at the stage where they apprehend the Government will withdraw the grant order. It was contended that the Government as a matter of policy is not willing to close down the NTM School which was established in the year 1881 and continuously imparting education to the students in that area. The Government is the best judge to decide what is in public interest. The Government should have free hand to decide. It is the policy decision of the Government to save the school, hence it was directed to continue the admission of the students. It cannot be disputed that facilities available at NTM School are better, catering to the needs of the local public.
13. Learned Additional Advocate General further contended that the efforts made by the Government to amicably settle the matter in terms of the directions issued by this Court also did not materialize. The Government must be allowed freely to take a decision regarding the grant made and consider the matter based on all the relevant facts whereas the petitioners apprehending the grant may be cancelled have approached this Court which requires to be dismissed as premature. The Government has the power to review its decision for sufficient reasons. Having regard to the fact as they have transpired, it would be inequitable to hold that the Government or Public Authority to the promise or representation made by it, Court would not raise an equity in favour of the Promisee and enforce the promise against the Government, supervening public interest entitles the Government to change its stand and gives the power to withdraw from it the earlier representation based on the public interest. Moreover, the Government is competent to rescind from the promise if there is no manifest public interest involved provided no one is put into an adverse situation that cannot be rectified. Generally, State is not subject to an estoppel to the same extent as an individual or a private body. Otherwise, it might be rendered helpless to assert its powers in Government.
14. Learned Additional Advocate General further submitted that on an assumption that the public purpose served by the NTM School would continue to be served by admitting students into Devaraja School, the respondents granted the impugned land to the petitioners. However, much to the respondents' dismay, there were widespread local protest against the decision of the respondents. This was due to the historic importance of the NTM School as being established as a model school for the town more than a century ago. Therefore, the public strongly protested against its closure and demanded the school to be retained at its present location.
15. It is a matter of common knowledge that Government schools in the State are run under supervision and control of Panchayatraj Institutions. In view of the closure of NTM School in the meeting of Zilla Panchayat held on 24.1.2013, it was vehemently opposed and requested the Government to withdraw the order. In response to the local protest and the recommendation of the Zilla Panchayat against a grant, a direction in the form of communication was addressed by the Respondent No.3 to the Respondent No.4 on 31.5.2014 to continue the NTM School at the current location. It was contended that this Court directed the respondents on 11.6.2014 to maintain status quo in the matter and had also observed that its direction must not come in the way of the second respondent's responsibility in involving all the stake holders for a considered negotiation to arrive at a amicable solution in the matter. In pursuance to the said direction of this Court, efforts were made to explore alternative solutions, but those alternatives were not found feasible. It was submitted that the Respondent No.2 had granted an area of 36,591.66 sq. feet of land to the petitioners. The petitioners with malafide intention have mischievously sought ownership and possession of area more than what was specifically granted by the Respondent No.2. Similarly, it is illegal and beyond the mandate for the local officers to handover possession of the area more than extent of the grant ordered by the Respondent No.2. Running of the Government Primary School serves a useful public purpose, especially for providing education to the children belonging to weaker section and disadvantaged ones. The need for retaining the school within the present premises serves the higher purpose than establishing a Memorial. It would not be proper to serve one public purpose by facilitating establishment of the Memorial by the petitioners by extinguishing another public purpose being served by the primary school. It was further contended that group of three Ministers as contended by the petitioners had not decided in favour of shifting of NTM School to the adjacent Seshadri Bhavan and its uprooted land. The group had agreed to get the request considered at the Government level. It was further submitted that the fact of Seshadri Bhavan being used by commercial taxes department for more than fifty years was not even brought to the notice of the group of Ministers. Seshadri Bhavan was built in the year 1878 and was the residence of Dewan K. Seshadri Iyer. The historical importance of the buildings persuades the State Government to protect them.
16. The learned Counsel placed reliance on the following Judgments:
[A] 'M.P. MATHUR AND OTHERS v. DTC AND OTHERS' [2006 [13] SCC 706]
[B] 'ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION v. B. NARASIMHA REDDY AND OTHERS' [2011 [9] SCC 286]
17. The learned Counsel appearing for Respondent Nos.8 and 9 supporting the arguments of the learned Additional Advocate General submits that the whole attempt by the petitioners is to see that the Government does not re-examine the issue of grant in view of its decision to adhere to the policy of promoting Government schools.
18. The learned Counsel submitted that NTM School was started by erstwhile Maharaja of Mysore during the year 1881. This school is considered as a Historical Heritage School/building/place where the first Girls' School was started during that period wherein there was no special attention given for the girls' education, it is a dream of the Maharani of Mysore regime to support the educational and other progressive movement to the girls in the education. This was also reported in the administration of Mysore, a book published by the Mysore Government Press during the year 1887 for the year 1881-82 to 1885-86. The Respondents 8 and 9, the students of the said School who are continuing their education under the Right to Education system provided by the Government, as a beneficiary, the children studying in NTM School with better infrastructure, have every right to seek for protection of the same and also support the policy of the Government not to close such a school. It will not serve any purpose of public good if the school is closed on the false foundation that there are no students. If the school is nurtured, then it is going to improve the strength and thousands of students will have access to the school with better infrastructure. Supervening public interest which certainly entitles the Government to change its stand and gives the power to withdraw from its earlier representation, the same also accord with the policy of social justice. In the realm of social justice, administration has to strike a balance. The petitioners are in effect seeking for non interference with their paper possession by injuncting the Government from reversing/modifying its decision in view of several factors not earlier taken note of. If they are in possession, they can very well file a suit. This is a test to show that the grant has not crystallized in their favour and the so called 'legal right' they claim is very fragile. The petitioners cannot prevent the Government from reviewing their decision if the Government feels there are adequate reasons.
19. The learned Counsel further submitted that it is factually incorrect to state that Swami Vivekananda stayed at the location on the basis of which the grant is claimed. According to the learned Counsel, Swami Vivekananda stayed at Dewan Seshadri residence and not at Niranjan Mutt. It was further contended that the submission on the part of the petitioners that there are only 12 students is nothing but misleading of the factual aspect. Presently, about 47 students are studying and the numbers will only increase if it is provided with encouragement and false rumours are not spread that the school will be closed.
20. The learned Counsel placed reliance on the following Judgments:
[A] 'ASHOKA KUMAR THAKUR v. UNION OF INDIA AND OTHERS [2008 [6] SCC 1]
[B] 'ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION v. B. NARASIMHA REDDY AND OTHERS' [2011 [9] SCC 286]
[C] 'AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE OF MADHYA PRADESH AND OTHERS' [[2011] 5 SCC 29]
21. Heard the learned Counsel for the respective parties and perused the material on record.
22. This Country is proud of the Great Monk, Swami Vivekananda, a guiding spirit who inspired the youth to raise to the occasion. The messages of Swami Vivekananda is motivating the people at large, particularly, the youth even now, irrespective of caste, creed, religion, sex etc.,. Indeed in commemoration of celebrating 150th Birth Anniversary of Swami Vivekananda, nationwide projects were organized and implemented. In that regard, the State Government in its wisdom thought it fit to grant the land free of cost to the petitioner No.1 to set up Swami Vivekananda Memorial, a mega project involving youth programmes. It is on the protest made by some public having regard to the historic background of the NTM School, the State Government, deviating from its order dated 09.01.2013, making attempts to protect the NTM School. The issue of determination of public interest i.e., the protection of the school as well as the noble cause of constructing Swami Vivekananda Memorial vis- -vis the grant order dated 9.1.2013 could have been amicably settled between the parties to put a quietus to the litigation and achieve the objects of the grant order. Despite the best efforts made by the Court, suggesting the parties to resolve their dispute amicably, no positive results being yielded albeit several negotiation meetings held between the parties, now the matter has to be addressed on merits.
23. The questions that arise for consideration in these writ petitions are,
[i] Whether the petitioners are entitled to the relief of mandamus to give full effect to the Government Order dated 9.1.2013 by taking all steps necessary for putting up of Swami Vivekananda Memorial and Cultural Center?
[ii] Whether the order of Respondent No.3 dated 31.5.2014 is sustainable?
24. As regards question No.1, it is imperative to refer to the grant order dated 9.1.2013 which reads thus:
LANGUAGE
25. The schedule of the property in the property transfer document dated 15.3.2013 reads thus:
SCHEDULE OF PROPERTY
To the East: Narayana Shastri Road
To the West: Property of the Commercial Tax Dept.
To the North: Road
To the South: Property of Marimallappa High School.
26. This grant order dated 9.1.2013 was subjected to judicial scrutiny before this Court in Writ Petition No.6626/2013 [DD-27.9.2013] wherein, Division Bench of this Court has held thus:
5. It was, however, elaborately argued for the petitioner that the petitioner has come with clean hands and approached the court only with a view to ensuring proper education of the children who had been studying at the Middle School which is handed over by the Government to a private entity, free of cost. It was, on the other hand, clearly conceded by learned counsel for the petitioner that no illegality or violation of any provision of law could be attributed or argued against the decision of the Government and the impugned order.
6. The case of respondent Nos. 8 and 9, as stated in the Statement of Objections, is that it was well within the power of the State Government to allot land or buildings for projects considered to be in public interest and for advancing public good. There is no allegation of any extraneous consideration in the facts of the present case. The respondents concerned are the office bearers of Sri Ramakrishna Math and Mission and the premises in question is the place where Swami Vivekananda, one of the greatest saints of recent times had stayed in 1892 during his travel throughout India as a Parivrajaka. At a Meeting of the National Committee on Commemoration of 150th Birth Anniversary of Swami Vivekananda, it was decided to set up a Memorial Centre for Swami Vivekananda to help spread his universal message of great relevance to humankind and particularly, the youth of India. A Committee comprising of eminent persons including the Prime Minister of India had thought it appropriate to chalk out various programmes and set up various projects pursuant to the 150th Birth Anniversary of Swami Vivekananda and as a part of that project, the premises in question was decided to be handed over to respondent Nos.8 and 9 for the purpose of its development and use with the objective of commemorating and spreading the message of Swami Vivekananda.
7. It is also stated and has come on record that the students of the erstwhile school are being absorbed in the nearby school and they are unlikely to suffer any adverse consequence as far as their education is concerned. However, if any, children or students are deprived of education because of any decision of the Government, it is a different cause of action and it is not the subject matter of this writ petition.
8. Therefore, it appears to be a case of conflict of interest between one Institution running classes for the poor students and another Institution accredited with widespread public service and associated with the historic importance of the premises in question. There being no illegality or malafide attributable to the impugned order and the decision of the Government, the petition is liable to be dismissed and repeated attempts of dragging the respondents to the court without any cause of action and without any party who is actually aggrieved coming forward to take responsibility of proving or establishing any fact, has to be deprecated.
27. The Government Order dated 24.9.2011 which endeavours to merge the existing Government Primary and Higher Primary School having less than five students with neighbouring schools was subject matter of Writ Petition No.45024/2011 [DD-20.6.2012] wherein it is observed thus:
7. In response thereto, the Additional Advocate General relied on Rule 4(5) of the Act, which casts An obligation on the State to make suitable arrangements for free transportation of students wherever the private school is located beyond the prescribed distance. Sub-rule (3) also makes it an optional duty on the State Government to merge existing schools with Classes I to V including Classes VI to VIII also. Similarly in respect of schools which start from Class VI onwards, the State Government is empowered to add Class I to V, wherever required.
8. Learned Addl. Advocate General gives us a solemn undertaking that free transportation shall be made available to every student who has to travel beyond the aforementioned prescribed distances after the merger of the Schools.
9. We accept this undertaking and make it the foundation of our decision. Accordingly, if it is brought to the notice of the Court that Government schools have been closed down and merged with other schools without providing free transportation facilities, it would invite judicial action under the Contempt of Courts Act, wherever neighbouring Schools within the said distance is not available.
28. It is significant to note that the petitioner No.1 has made a self declaration before the Mysore Municipal Corporation, Mysore claiming granted land as 46,659 sq. feet. The learned Senior Counsel placing reliance on the schedule to the property as per the property transfer document submitted that the boundaries prevail over, as such, the total measurement of the property transferred is 46,659 sq. feet. It would be difficult to accept the said argument of the learned Senior Counsel in the context of the grant order mentioning the total area as 36,591.66 sq. feet. This is the disputed question of fact. Handing over of the land to what extent and the possession of the petitioners in the said lands requires to be established before the Civil Court as the State Government is disputing of handing over possession of the land, more particularly, to the extent of 46,659 sq. feet.
29. Be that as it may, the State Government by way of memo dated 16.03.2016 submitted the proposal to resolve the issue amicably which reads thus:
"9. The Government proposes to revise the grant order, use about 100 ft x 80 ft area on the South-East side of the school plot to re-construct the building and to provide area for morning assembly, and grant rest of the area for establishing the Memorial. Out of this are of 8000 sq.ft. school building can be re-constructed on a plinth area of about 2700 sq.ft. and area of about 4500 sq.ft. can be kept for the assembly or play area while the rest can be for the required set-off. The school building can have Ground plus 2 Floors (G+2) with total 8 classrooms, 1 dining hall, kitchen-cum-store, toilets, etc with total constructed area of about sq.ft. in all 3 floors. Copies of the layout and design of the possible re-constructed school are attached as Annexure-D and Annexure-E.
10. Out of total area of about 43357 sq.ft. available between Krishna Vilas Road on the North, Narayana Shastri Road on the East, Marimallappa College on the South and Sheshadri Bhawan compound (Commercial Tax Offices) on the West, an area of around 4900 sq.ft. covers parking sheds and open land of Commercial Taxes Department. Those parking sheds are in the possession and use of the department from more than 26 years. The request letter dated 8.10.2012 of the Mission, which formed the basis for the government order dated 9.1.2013, had not even asked for grant of the open land of about 3400 sq.ft. in possession of Commercial Taxes Department within this total area. The mission now however wants to use the land as well. A copy of the request letter dated 8.10.2012 is attached as Annexure-A.
11. Out of the total area about 43357 sq.ft. the land granted to the Mission is 36591 sq.ft. only for establishing the Memorial. Even though a large part of the total area has not been granted, the Mission has been claiming the entire area and has made an incorrect declaration to Mysore Municipal Corporation claiming the granted land to be 46659 sq.ft. A copy of the self-declaration made by the Mission to the Corporation making this excess claim is attached as Annexure-F.
12. After taking an area of 8000 sq.ft. on the south-east side for the school to be reconstructed, the balance area would still be fairly large at around 35357 sq.ft. (including the area presently having Viveka Smaraka and Temple) for construction of the Memorial. Though this alternative will require redesign of the Memorial plans, the redesign seems inevitable considering the strong resistance against closure of the school.
13. When the land was granted on 9.1.2013, the assumption was that the public purpose being served by NTM School could be served by admitting the students to the nearly Devaraja School. However, that assumption has not turned out to true in view of local protests against closure of the school. In the changed circumstances, the Government proposes to reconstruct NTM School by utilizing about 8000 sq.ft. area on the south-east side of the total area in deference to the local public sentiments, and to revise the grant order to still provide fairly balance area of around 35357 sq.ft. (including the area presently having Viveka Smaraka and Temple) for establishing the Memorial."
However, the said proposal was not accepted by the petitioners. It appears, the petitioners are making attempts to claim larger extent of land than what is granted. Paying of taxes and cesses to the extent of land claimed by the petitioners would not legalize the grant to that extent claimed. As aforesaid, this issue requires to be adjudicated before the Civil Court.
30. As regards the binding nature of the grant order on the State Government, it is beneficial to refer to the Judgment of the Hon'ble Apex Court in the case of CENTURY SPINNING AND MANUFACTURING COMPANY LTD.,'s case [supra], wherein it is held thus:
"11. Public bodies are as much bound as private individuals to carry out representations of -facts and promises made by them, relying on which other persons have -altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise : when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in appropriate cases in equity. 'In Union of India and Ors. v. M/s. Indo-Afghan Agencies Ltd. this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions applied in India :
"The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action."
We are in this case not concerned to deal with the question whether Denning, L.J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd. v. Howel where he observed at p. 542 :
"Whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to mow, the limits of their authority, and he ought not to suffer if they exceed it." It may be sufficient to observe that in appeal from that judgment (Howell v. Falmouth Boat Construction do. Ltd.) (supra) Lord Simonds observed after referring to the observations of Denning, L.J.:
"The illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy.
The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly: No."
31. This view is reiterated in the Judgment of GODFREY PHILIPS INDIA LTD.,'s case [supra] which runs thus:
"12. There can therefore be no doubt that the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. We must concede that the subsequent decision of this Court in Jeet Ran v. State of Haryana [1980] 3 S.C.R. 689, takes a slightly different view and holds that the doctrine of promissory estoppel is not available against the exercise of executive functions of the State and the State cannot be prevented from exercising its functions under the law. This decision also expresses its disagreement with the observation made in Motilal Sugar Mills case that the doctrine of promissory estoppel cannot be defeated by invoking the defence of executive necessity, suggesting by necessary implication that the doctrine of executive necessity is available to the Government to escape its obligation under the doctrine of promissory estoppel. We find it difficult to understand how a Bench of two Judges in Jeet Ram's case could possibly overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills Case. If the Bench of two Judges in Jeet Ram's case found themselves unable to agree with the law laid down in Motilal Sugar Mills case, they could have referred Jeet Ram's case to a larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal sugar Mills case. We have carefully considered both the decision in Motilal Sugar Mills and Jeet Ram's case and we are clearly of the view that what has been laid down in Motilal sugar Mills case represents the correct law in regard to the doctrine of promissory estoppel and we express our disagreement with the observations in Jeet Ram's case to the extent that they conflict with the statement of the law in Motilal Sugar Mills case and introduce reservations cutting down the full width and amplitude of the prepositions of law laid down in that case."
32. In the case of M.P. MATHUR [supra], the Apex Court held thus:
"10. As stated above, two contentions have been raised on behalf of the plaintiffs. Firstly, the appellants contended that a legal right was created in their favour vide Resolution No.55/79 dated 18.4.1979 read with Resolution No.139/79 dated 31.8.1979 by itself. Secondly, they contended that even if there was no legal right, an estoppel was created in their favour by the conduct of DTC and, therefore, it was not open to DTC to resile from their earlier decision vide Resolution No.179/79 dated 3.12.1979.
16. In the case of Sharma Transport v. Government of A.P. and others - (2002) 2 SCC 188, this Court speaking through one of us, Pasayat, J., vide para 23 observed as follows:
"If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. But the Government must be able to show that in view of the fact as has been transpired, public interest would not be prejudiced. Where the Government is required to carry out the promise the Court would have to balance the public interest in the Government's carrying out the promise made to the citizens, which helps citizens to act upon and alter their position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. It would not be enough just to say that the public interest requires that the Government would not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. In order to resist its liability the Government would disclose to the court the various events insisting its claim to be exempt from liability and it would be for the court to decide whether those events are such as to render it inequitable to enforce the liability against the Government."
17. Similarly, in the case of Bannari Amman Sugars Ltd. v. Commercial Tax Officer and others (2005) 1 SCC 625, the Division Bench of this Court speaking through one of us, Pasayat, J., vide paras 19 and 20 observed as follows:
"19. In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The Courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the Court."
33. Similarly, in ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION's case [supra], it is observed thus:
"40. In the matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of the "State", within the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary from the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power. "Political agenda of an individual or a political party should not be subversive of rule of law". The Government has to rise above the nexus of vested interest and nepotism etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must be legitimate.
45. Therefore, it is evident that the Court will not pass any order binding the Government by its promises unless it is so necessary to prevent manifest injustice or fraud, particularly, when government acts in its governmental, public or sovereign capacity. Estoppel does not operate against the government or its assignee while acting in such capacity.
46. The Government has inherent power to promote the general welfare of the people and in order to achieve the said goal, the State is free to exercise its sovereign powers of legislation to regulate the conduct of its citizens to the extent, that their rights shall not stand abridged."
34. Referring to these judgments, learned counsel for the parties argued extensively on the point of promissory estoppel. Addressing on the power of the Government to withdraw/modify the grant order or the applicability of promissory estoppel in the light of these judgments would not arise at this stage as no such order is passed withdrawing/modifying the grant order dated 09.01.2013. It is premature to address on these points.
35. As regards the second question, the 3rd respondent has directed the 4th respondent to continue to admit the students in the NTM school referring to the oral order of the Chief Minister dated 27.5.2014 based on the Govt. policy not to close Government schools. The power of the 3rd respondent to pass such an order requires to be examined, more particularly in the context of the subsistence of the grant order dated 09.01.2013. At this juncture, it would be profitable to refer to the judgment of the Hon'ble Apex Court in the case of T.S.R.Subramanian's case, supra, wherein the Hon'ble Apex Court observed thus:
"33. We are of the view that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. Further, civil servants shall also not have any vested interests. Resultantly, there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions he should record such directions in the file. If the civil servant is acting on oral directions or dictation of anybody, he will be taking a risk, because he cannot later take up the stand, the decision was in fact not his own. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity."
36. Issuance of grant order dated 9.1.2013 with the clause relating to merging of the NTM School with Devaraja Primary School which is situated 200 meters away is not in dispute. Now, the directions issued by the Respondent No.3 to continue the NTM School in the existing premises without assigning valid reasons, during the subsistence of the Government Order dated 09.01.2013, prima facie, appears to be in conflict with the said Government Order which has been upheld by the Division Bench of this Court in Writ Petition No.6626/2013. If the State Government intends to deviate from the said Government Order, the same has to be effected in accordance with law after hearing the petitioners. The Respondent No.3 being a civil servant cannot issue orders in conflict with the grant order which is in force, merely on the basis of oral or verbal instructions of the Political Executive unless the State Government annuls/modifies the grant order. Recording of instructions, directions of the Superior Officers/Political Executives is necessary as held by the Apex Court in T.S.R.Subramanian's case (supra). It is imperative that all orders from Superior Officers shall ordinarily be in writing. The Respondent No.3 exceeded his jurisdiction in passing the order dated 31.5.2014. Hence, the said order cannot be sustained. Accordingly, the order dated 31.05.2014 (Annexure-R) be quashed.
37. As aforesaid, neither the issue relating to the promissory estoppel, resjudicata, etc., nor the alternative prayer can be adjudicated at this stage.
The writ petitions stand disposed of in terms of the above.