Shekhar Institute of Commerce Vs. the Commissioner of Public Instruction and ors. - Court Judgment

Excerpt:
(a) grants-in-aid code for high schools, 1969 - part ii - section 3 -- sanction for establishing school, a commerce institute herein, is based on various factors under-no power to pemit shifting of school from one place to another, which, held, amounts to establishment of a new school. ; .....the framers of law and rule intended that a school established at one place and recognition granted to it at one place, after taking into consideration all the relevant matters in that context under the rule, when recognition has been granted, there is no question of its shifting and if the management wants to shift that school from one place to some other place, it must be taken to be establishment of a new school requiring fresh recognititon. ; (b) natural justice -- where original order granting permission for shifting a school was without jurisdiction, petitioner, held not entitled to notice when appellate authority reversed it -- no interference by the court called for. - section 8: [h.n. nagamohan das,j] general rules of succession in case of males -petitioners claim that they are surviving legal representatives of deceased 2nd plaintiff -2nd respondent died without leaving any relations specified in class of schedule to section 8 of the hindu succession act - petitioners come under class ii of schedule to section 8 of the act and want to come on record as surviving legal representative of deceased 2nd plaintiff trial court dismissed applications held, if all the persons mentioned in an entry are alive then the property of the deceased shall devolve on all of them in equal shares. admittedly, in the instant case the relatives specified in the first entry that is the father of deceased is not alive. therefore, the relatives specified in the second entry will succeed to the estate of deceased the first three persons specified in second entry are not alive. but the second plaintiff who is the sister of the deceased is alive and the property of the deceased shall devolve only on her. the petitioners are admittedly the sons and daughters of brothers of deceased and they come under fourth entry. when the relation specified in the second entry are alive, then they shall be preferred over the petitioners. therefore, the petitioners are not entitled to come on record as legal representatives of deceased second plaintiff. - the learned counsel failed to point me out that there is any provision empowering the authorities to permit shifting of the school.orderhari nath tilhari, j.1. this writ petition is filed under article 226 of the constitution of india, challenging the order dated 28.11.1987 passed by the commissioner, public instruction, karnataka, rejecting the appeal filed by the petitioner from order dated 11/20-6-1987 passed by the joint director, public instruction, by which order, the joint director, public instruction had cancelled/withdrawn the permission dated 20-8-1986, for shifting of the school.2. the facts of the case in brief are that the petitioner was granted permission to run the shekhar institute of commerce at no. 4(old) 4a(new), 2nd cross, 1st lane, kempapura agrahara, magadi road, corporation division 32, bangalore-23. thereafter on 17-2-1984, the petitioner moved an application for permission to shift that institute to the building no. 37, 'sreesadana', vinayaka layout, bangalore-79. according to the petitioner, by order dated 20-8-1986, the joint director of public instruction, bangalore, granted the permission for shifting of the institution as prayed in application dated 17-2-1984. later on, by order dated 11/20-6-87 the second respondent cancelled that permission vide order annexure-b. the petitioner preferred the appeal without mentioning any provision of law from the order of the joint director dated 11/20-6-87. but that appeal has been dismissed by the commissioner, vide the order annexure-c to the writ petition. the petitioner thereafter filed a review application, but review application had also been dismissed. now the petitioner has come up before this court under article 226 of the constitution of india, praying for the grant of writ of certiorari quashing the order contained in annexure-b and c to the writ petition, dated 11/20-6-1987 and 28-11-1987 respectively.3. no counter affidavit has been filed to this writ petition. the petition is itself of 1988. on behalf of the opposite parties, appearance has been made by the government pleader, smt. l.y. premavathi. she no doubt prayed that she may be given time to file counter affidavit and pointed out that the statement of objections drafted had been sent for approval. as the petition itself is of 1988, and the counter has not been filed so far, i thought it is no ground to adjourn the case and give further time.4. i have heard the learned counsel for the petitioner, sri n.g. kotre and smt. premavathi, learned government pleader.5. the learned counsel for the petitioner submitted before me that the order whereby the order granting permission for shifting had been recalled is illegal and it cannot be given effect as the petitioner's husband has already sold the old building in which the school did begin run. the learned counsel further submitted that the order recalling the permission for shifting had been passed without any notice to the petitioner and therefore he submitted that the order impugned deserves to be quashed. the learned counsel submitted that there is no bar to shifting.6. the learned government pleader submitted that as per instructions to the government pleader there have been more than two schools in the new area and recognition was granted to the petitioner to start the institution at a particular area. she submitted that order or permission for shifting had been obtained by petitioner on 17-2-1984 alleging falsely that the property has been sold. further, she invited my attention to the appellate order and submitted that the order has been passed after hearing the petitioner and on sufficient ground affirming the recall of permission for shifting. she further submitted that the petitioner has no right for shifting and when the petitioner has no right for shifting there is no question of petitioner submitting that the order is void on account of the fact that no hearing was given to the petitioner.7. i had applied my mind to the contentions raised by the learned counsel for the petitioner and the learned government pleader. under article 226 of the constitution it is the discretionary power of the court to grant the relief. in order to claim the relief under article 226 of the constitution, the petitioner must establish his right which he says has been adversely affected by the order. if no right exists in petitioner, then even if the order, in the present case withdrawing the permission for shifting has been passed without notice, that order will not require interference as no right of the petitions can be said to have been interfered. the question for consideration is whether the petitioner has got a right to shift the school which he had been permitted to run on magadi road. under karnataka education act, it is provided that no person can run a school without the permission of the government or the authorities thereunder. rules under grant-in-aid code relating to commerce education as per part-ii provide for recognition of commerce institute as schools and the necessary conditions in which the recognition may be granted, and all the conditions must be fulfilled before its recognition is granted, has been provided in rule 3 of grant-in-aid code part-ii. one of the conditions mentioned is the actual need of the commerce institute in the locality. the other condition is that there is no commerce institute or a school within the radius of two kilometers from the proposed institution in case of rural areas and one kilometer in the case of cities and municipal areas. there are other conditions also and it is provided that after taking into consideration the permission recognition may be granted. the power to refuse recognition is also there under rule 6 and thereafter rule 7 provides for withdrawal of recognition.8. i called upon the learned counsel for the petitioner to point out any rule under which the permission to shift the school from one place to other can be granted and to show in and under what conditions the shifting can be granted and if there is any rule under which the permission granted to shift can be cancelled and under what conditions can be cancelled. the learned counsel failed to point me out that there is any provision empowering the authorities to permit shifting of the school. i have also gone through the rules. i could not find any rule which may be said to empower the authorities to permit the shifting of the school established at one place to other place. when there is no such rule or rule empowering any authority to permit the shifting of school from one place to some other place, in my opinion, the framers of law and rule intended that a school established at one place and recognition granted to it at one place, after taking into consideration all the relevant matters in that context under the rule, when recognition has been granted, there is no question of its shifting and if the management wants to shift that school from one place to some other place, it must be taken to be establishment of a new school requiring fresh recognition. when i so hold, i also find support from rule 21 which is contained in part ii of the grant-in-aid code for commerce education. rule 21 deals with the change of management. it provides that if there is a change in the management and also the institution is shifted to a different place it shall be deemed as a new institution and the management shall seek fresh recognition as per rules. it means change in the management or there is change by shifting the institution from one place to another, rule-21 provides that the establishment is to be deemed to be new institution and that new institution will require to be recognised afresh. that being the position, in my opinion, the permission that had been granted for shifting was misconceived as he had no power to permit the shifting itself and that order permitting shifting was void and therefore did not confer any right on the petitioner. if such an order had been withdrawn, even if for a moment, if it is taken and no notice was given to the petitioner, that original order itself being without jurisdiction, it was rightly recalled and therefore, i am sure even if no notice given to the petitioner, that will not entitle or at least that will not make it necessary for this court to interfere with the order of recalling of the permission. in this view of the matter, in my opinion, there is no substance in this petition and the petition deserves to be dismissed. it is however open to the petitioner to apply afresh for recognition of the school at the new place, if the petitioner wants to establish or shift and i am sure the authorities concerned will consider the question of grant of recognition expeditiously.subject to the above observation, the writ petition is hereby dismissed and the petitioner may move for recognition of the institution at the new place and it is open to the authorities to consider his case and grant recognition expeditiously. no order as to costs.smt. premavathi, learned high court government pleader is permitted to file memo of appearance.

Judgment:
ORDER

Hari Nath Tilhari, J.

1. This Writ Petition is filed under Article 226 of the Constitution of India, challenging the order dated 28.11.1987 passed by the Commissioner, Public Instruction, Karnataka, rejecting the Appeal filed by the petitioner from order dated 11/20-6-1987 passed by the Joint Director, Public Instruction, by which order, the Joint Director, Public Instruction had cancelled/withdrawn the permission dated 20-8-1986, for shifting of the School.

2. The facts of the case in brief are that the petitioner was granted permission to run the Shekhar Institute of Commerce at No. 4(old) 4A(new), 2nd Cross, 1st lane, Kempapura Agrahara, Magadi Road, Corporation Division 32, Bangalore-23. Thereafter on 17-2-1984, the petitioner moved an application for permission to shift that Institute to the building No. 37, 'Sreesadana', Vinayaka Layout, Bangalore-79. According to the petitioner, by order dated 20-8-1986, the Joint Director of Public Instruction, Bangalore, granted the permission for shifting of the Institution as prayed in application dated 17-2-1984. Later on, by order dated 11/20-6-87 the second respondent cancelled that permission vide order Annexure-B. The petitioner preferred the Appeal without mentioning any provision of law from the order of the Joint Director dated 11/20-6-87. But that Appeal has been dismissed by the Commissioner, vide the order Annexure-C to the Writ Petition. The petitioner thereafter filed a Review application, but Review application had also been dismissed. Now the petitioner has come up before this Court under Article 226 of the Constitution of India, praying for the grant of Writ of Certiorari quashing the order contained in Annexure-B and C to the Writ Petition, dated 11/20-6-1987 and 28-11-1987 respectively.

3. No counter affidavit has been filed to this Writ Petition. The Petition is itself of 1988. On behalf of the opposite parties, appearance has been made by the Government Pleader, Smt. L.Y. Premavathi. She no doubt prayed that she may be given time to file counter affidavit and pointed out that the statement of objections drafted had been sent for approval. As the petition itself is of 1988, and the Counter has not been filed so far, I thought it is no ground to adjourn the case and give further time.

4. I have heard the learned Counsel for the petitioner, Sri N.G. Kotre and Smt. Premavathi, learned Government Pleader.

5. The learned Counsel for the petitioner submitted before me that the order whereby the order granting permission for shifting had been recalled is illegal and it cannot be given effect as the petitioner's husband has already sold the old building in which the School did begin run. The learned Counsel further submitted that the order recalling the permission for shifting had been passed without any Notice to the petitioner and therefore he submitted that the order impugned deserves to be quashed. The learned Counsel submitted that there is no bar to shifting.

6. The learned Government Pleader submitted that as per instructions to the Government Pleader there have been more than two Schools in the new area and recognition was granted to the petitioner to start the Institution at a particular area. She submitted that order or permission for shifting had been obtained by petitioner on 17-2-1984 alleging falsely that the property has been sold. Further, she invited my attention to the Appellate order and submitted that the order has been passed after hearing the petitioner and on sufficient ground affirming the recall of permission for shifting. She further submitted that the petitioner has no right for shifting and when the petitioner has no right for shifting there is no question of petitioner submitting that the order is void on account of the fact that no hearing was given to the petitioner.

7. I had applied my mind to the contentions raised by the learned Counsel for the petitioner and the learned Government Pleader. Under Article 226 of the Constitution it is the discretionary power of the Court to grant the relief. In order to claim the relief under Article 226 of the Constitution, the petitioner must establish his right which he says has been adversely affected by the order. If no right exists in petitioner, then even if the order, in the present case withdrawing the permission for shifting has been passed without notice, that order will not require interference as no right of the petitions can be said to have been interfered. The question for consideration is whether the petitioner has got a right to shift the School which he had been permitted to run on Magadi Road. Under Karnataka Education Act, it is provided that no person can run a School without the permission of the Government or the Authorities thereunder. Rules under Grant-in-aid Code relating to Commerce education as per Part-II provide for recognition of Commerce Institute as Schools and the necessary conditions in which the recognition may be granted, and all the conditions must be fulfilled before its recognition is granted, has been provided in Rule 3 of Grant-in-aid Code Part-II. One of the conditions mentioned is the actual need of the Commerce Institute in the locality. The other condition is that there is no Commerce Institute or a School within the radius of two kilometers from the proposed Institution in case of rural areas and one kilometer in the case of Cities and Municipal areas. There are other conditions also and it is provided that after taking into consideration the permission recognition may be granted. The power to refuse recognition is also there under Rule 6 and thereafter Rule 7 provides for withdrawal of recognition.

8. I called upon the learned Counsel for the petitioner to point out any Rule under which the permission to shift the School from one place to other can be granted and to show in and under what conditions the shifting can be granted and if there is any Rule under which the permission granted to shift can be cancelled and under what conditions can be cancelled. The learned Counsel failed to point me out that there is any provision empowering the Authorities to permit shifting of the School. I have also gone through the Rules. I could not find any Rule which may be said to empower the Authorities to permit the shifting of the School established at one place to other place. When there is no such Rule or Rule empowering any authority to permit the shifting of School from one place to some other place, in my opinion, the framers of law and rule intended that a School established at one place and recognition granted to it at one place, after taking into consideration all the relevant matters in that context under the Rule, when recognition has been granted, there is no question of its shifting and if the Management wants to shift that School from one place to some other place, it must be taken to be establishment of a new School requiring fresh recognition. When I so hold, I also find support from Rule 21 which is contained in Part II of the Grant-in-aid Code for Commerce education. Rule 21 deals with the change of Management. It provides that if there is a change in the Management and also the Institution is shifted to a different place it shall be deemed as a new Institution and the Management shall seek fresh recognition as per Rules. It means change in the Management or there is change by shifting the Institution from one place to another, Rule-21 provides that the establishment is to be deemed to be new Institution and that new Institution will require to be recognised afresh. That being the position, in my opinion, the permission that had been granted for shifting was misconceived as he had no power to permit the shifting itself and that order permitting shifting was void and therefore did not confer any right on the petitioner. If such an order had been withdrawn, even if for a moment, if it is taken and no Notice was given to the petitioner, that original order itself being without jurisdiction, it was rightly recalled and therefore, I am sure even if no Notice given to the petitioner, that will not entitle or at least that will not make it necessary for this Court to interfere with the order of recalling of the permission. In this view of the matter, in my opinion, there is no substance in this Petition and the Petition deserves to be dismissed. It is however open to the petitioner to apply afresh for recognition of the School at the new place, if the petitioner wants to establish or shift and I am sure the Authorities concerned will consider the question of grant of recognition expeditiously.

Subject to the above observation, the Writ Petition is hereby dismissed and the petitioner may move for recognition of the Institution at the new place and it is open to the Authorities to consider his case and grant recognition expeditiously. No order as to costs.

Smt. Premavathi, learned High Court Government Pleader is permitted to file Memo of appearance.