Karnataka High Court
Moulana Hussain Ahmed Madani ... vs State Of Karnataka on 22 March, 2017
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.102026 OF 2017 (EDN, RES)
AND
WRIT PETITION NO.102027, 102028, 102029 AND
102421 OF 2017
WRIT PETITION NO.102026 OF 2017
BETWEEN:
Moulana Hussain Ahmed Madani
Educational and Welfare Trust
A Trust having its office at
Plot No.1, Sayed Fateshawali Nagar
Anand Nagar,
Hubli 580 024
Dharwad District
Represented by its Chairman
Chamanssa Bilepasar
S/o Jabbar Saheb S S
Aged aged 70 years
...Petitioner
WRIT PETITION NO.102027 OF 2017
Renuka Educational Trust
Dr.R.M Lohiya Nagara
Gokul Road,
Hubli-580030
Dharwad district
2
represented by its Secretary
Sannayallappa Dollin
S/o Dyamanna Dollin,
Aged about 36 years
...Petitioner
WRIT PETITION NO.102028 OF 2017
Devaki Udyoga Kendra
Behind Sri Sai Temple
Vinay Colony (near Paraswadi 2nd Stage)
Hubli 580 030
Dharwad District
Represented by its Chairman
Sunil Tikandar
S/o Raghunath Sa
Aged aged 60 years
...Petitioner
WRIT PETITION NO.102029 OF 2017
Apna Education Society
opp. ESI Hospital
Aravind Nagar,
Karwar Road,
Hubli-580030
Dharwad District,
represented by its Chairman
Mr.Gouse Mohaddin Badbade
s/o Ibahasahib B. Badbade,
age:46 years
... Petitioner
WRIT PETITION NO 102421 OF 2017
Shri. Balaji Education Society,
a Registered society having office at
Shri Ganga Nilaya,
opp Modern Theatre,
3
P.B. Road
Dharwad-580001
represented herein by its President
Deepak S Gaonkar
s/o Shrikanth Gaonkar
a/o 50 years
... Petitioner
AND:
1. State of Karnataka
Represented by Principal Secretary
Department of Education
(Primary and Secondary Education)
Vidhana Soudha, Bengaluru
2. Commissioner of Public Instructions
Department of Education
(Primary and Secondary Education)
Nrupathunga Road, Bengaluru 560 001
3. Deputy Director of Public Instructions
Department of Education
(Primary and Secondary Education)
Dharwad
4. Block Education Officer
Hubli Taluk
Dharwad Zilla, Dharwad
... common respondents
in all petitions
(by Smt. K. Vidyavathi, AGA)
These Writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to direct the respondents to
consider the application dated 08.02.2017 of the petitioner at
Annexure-L; direct the respondents to register as English
Medium School for Standards I to V; and etc.
4
These Writ petitions coming on for Preliminary hearing in
'B' group, this day, the court made the following:
ORDER
The common challenge by the petitioners in these petitions is to Memorandum dated 9th January 2017 which is produced as Annexure-K in Writ Petition No.102026 of 2017 whereunder the permission granted to petitioner-Institution to run the School came to be cancelled.
2. The brief facts of the case are that the Petitioners are the educational institutions which were granted permission to run a School, in writ petition No.102026 the permission was granted by its order dated 27th May 2015. Since the said date, the Schools are being run by the petitioner-Institutions in compliance of Government Notification. As things stood thus, the respondents issued Memorandum Annexure-K dated 9th January 2017 cancelling the permission granted to run the school. The reasons assigned therein are that the petitioner- institutions have not complied with Government Orders dated 11th November 2014 and 5th September 2015 passed in GO 5 No.ED-359-PGC-2015 and ED-549-PGC-2015 respectively, which are referred to as Referrence No.1 and 2 in the Memorandum. As per reference 1 and 2, the petitioner-institutions should possess one acre of converted land in the name of the institution or half an acre of land, to run the school. Since the petitioner- institutions do not possess the land in its name, the Memorandum Annexure-K dated 09th January 2017, cancelling the permission granted to the petitioner-institution to run school came to be passed. The said order is challenged by the petitioner contending that the same is in violation of Section 105 of the Education Act. The above Section requires that for cancellation, of existing schools, one year's prior notice to be given. In the instant case, when the petitioner-institutions is running the school since 2015, one full academic year's time should have been granted to the petitioner before cancellation of permission granted to run the school; and further cancellation order has been made by referring to reference to item No.8 in the Memorandum Annexure-K dated 9th January 2017, whereas the total references made in the said Memorandum is only 1 to 7 and there is no reference No.8. On this ground, the learned 6 counsel appearing for the petitioners submits that the cancellation order is out of non-application of mind and is passed in a mechanical way. Hence, he submits to set aside the impugned order. He further submits that in similar circumstance, this Court in Writ Petitions No.55389-55405 of 2015 and connected matters disposed of on 2nd June, 2016 wherein similar relief has been granted in compliance of Section 105 of the Education Act.
3. The learned Additional Government Advocate submits to dismiss the petition on the ground that this petition is filed in contravention of High Court Rules of Practice. She submits that it is impermissible to maintain dual proceedings, i.e. one before this Court and another before the Competent Authority. To substantiate the same, the learned counsel referred to the appeals filed by some of the petitioners under Section 130 of the Education Act. When a statutory appeal is pending, and that when it is posted for orders, these petitions have been filed by virtue of granting interim relief and final order has not been passed by the Respondents. Further, it is submitted that the 7 petitioner-Institutions have approached this Court with unclean hands. In order to open an educational institution, any aspirant institution should comply with reference No.1 and 2 of the Memorandum Annexure-K dated 9th January 2017 and should have expected extent of land for the purpose of running educational institution. Basically, the petitioner-institutions have not come forward and stated that the said institution has got the expected extent of land for the purpose of running the school. When such is the case, her submission is that the petitioner- institutions have approached this Court with unclean hands.
4. Nextly, the learned Additional Government Advocate submits that the Office also, while granting permission on 27th May, 2015, has not examined and satisfied itself as to whether the petitioner-institutions have complied with reference No.1 and 2 of Memorandum Annexure-K dated 9th January 2017. She further submits that as regards to compliance of provisions of Section 105 of the Education Act, the same has to be complied with by issuing notice, which has been denied by the petitioners on the ground of its service. Further, it is also submitted that 8 similar action has been taken with regard to as many as 23 institutions in respect of Dharwad District only and most of the institutions have preferred appeal; and if any relaxation is shown to the petitioner-institutions herein, the authority would find it difficult in passing appropriate orders for non compliance of reference No.1 and 2 of the Memorandum Annexure-K dated 9th January 2017.
5. Heard the learned counsel appearing for the petitioners and the learned Additional Government Advocate. Providing education to children is the fundamental duty of the State. Article 21A of the Constitution has been amended in order to provide compulsory education to the requisite population. Providing education means, not just imparting education to the children. It shall be done in a particular manner; and in that regard, the requirement as referred in reference No.1 and 2 of the Memorandum Annexure-K dated 9th January 2017 has to be adhered to. Students should have sufficient space to play and express their talent. This is the era where the State, National and International sports gain a momentum. Most of the Indian 9 students lack in that field because of want of sufficient space to play and express their talent. Education does not mean that it is only imparting academic education to the children in captivity. Physical education is also a part of education. The young generation has to represent themselves in many walks of life. Not just leading their life, but have to be in the forefront in many fields like participating in Sports events at National and International levels bringing name and fame to the Country; to join Defence sectors; and other pivotal fields etc., which all come under fitness called physical education. The same cannot be imparted keeping the children in a small building and naming it as a school. Keeping the said intention in mind, the Government has decided to implement such condition based on the recommendations made by various agencies that any institution intending to start educational institution should possess sufficient extent of land in its name in the interest of public as also the children, the same cannot be said to be as something which is not important. When such notification is issued for general public, more particularly, to the institutions, Trusts, Soceities, which seek opening of educational institutions, the 10 same should be complied by the aspirant institutions. Education is the sector, which is not to be established to make money. Infrastructure is the main thing for the educational institution, since the same is dealing with the future generation of the Nation. While making application to the Government for granting permission to run school, the compliance of requirements as referred in reference No.1 and 2 of the Memorandum Annexure-K dated 9th January 2017 is a must and there cannot be any deviation from that. Petitioner has not complied with the said references. On the other hand, it is its case that it is accorded permission to open a school on 27th May 2015 and hence, it is a institution which is already running and the question of compliance of reference No.1 and 2 of Memorandum Annexure-K dated 9th January 2017 does not arise. The same cannot be accepted because the permission itself was accorded to the petitioner-institution making it clear about the possession of land in the name of the education institution within one year from the date of granting of permission and it is also made clear in the permission order that if the same is not complied with, the permission granted to run 11 the school would be cancelled. Further, it is also its case that as per Section 105 of the Education Act, one academic year's prior notice is to be given also cannot be accepted. When the petitioner-institution itself is at fault, not complying with reference No.1 and 2 of the Memorandum Annexure-K Dated 9th January 2017 while opening the institution and in order to prevent the same, the Memorandum Annexure-K issued is perfectly justifiable.
6. The petitioner-institutions have commenced educational activities with effect from 27th May, 2015; and though the same is a very limited extent, is to be treated as existing/running institutions. The existing institutions are the institutions that are commenced prior to the issuance of Memorandum Annexure-K Dated 9th January 2017 without compliance of reference No.1 and 2 of the Memorandum Annexure-K. This is a great irregularity committed both the petitioner-institutions as well as the respondents. These are the defects from the department. Naturally, it is their duty to issue such directions to the educational institutions like the petitioners cancelling permission 12 granted to run the school. At this juncture, the learned counsel for the petitioners by referring to Section 105 of the Education Act submit that before cancelling the permission granted, one academic year's prior notice shall given. It is only a time being approach. The person who approaches the Court, shall seek relief which is substantive in nature and not a procedural one. Procedural lacunae could be rectified both by this Court as well as by the Government by exercising their inherent powers. This Court has got such power to decide whether the petitioner- institutions are to be granted permission or not. But, when the interest of large number of students is involved, it is felt that the permission if granted to the petitioner, dispensing or exempting from complying with reference No.1 and 2 of Memorandum Annexure-K dated 9th January 2017, I find the same would be unconstitutional or arbitrary.
7. Some of the petitioner-Institutions have already approached the Appellate Authority under Section 130 of the Education Act and some of the similarly situated institutions have not approached. It is submitted by the learned Additional 13 Government Advocate; and if any relief granted to the petitioner-institutions dispensing or exempting the compliance of reference No.1 and 2 of Memorandum Annexure-K, it would have a serious effect. The dividend or relief could be granted to the person who approach the Court with equity and the same could be extended to him. The person who approaches the Court without complying with the provisions of law, is not entitled for seeking any equity. Equity always should follow law and not at the cost of law. Since this Court granted interim order to the petitioner staying the operation of cancellation order on 10th March, 2017 and the interim order is operating in favour of the petitioners, at this stage, what this court feels is to remand this matter to the appellate authority to pass such orders, or else, to direct the petitioner-institutions to comply with reference No.1 and 2 of the Memorandum Annexure-K dated 9th January 2017 within one year. While evaluating these two, what I feel is, it is most appropriate to direct the petitioners to comply with reference No.1 and 2 of Memorandum Annexure-K dated 9th January 2017 on the basis of which cancellation order has been passed, within a period of academic year 2017-2018, which is 14 ending on 31st March, 2018. In case if the petitioner-institutions fails to comply with reference No.1 and 2 as stated above by 31st March, 2018, it is made clear that no extension would be given at any circumstance. Petitioners shall comply with requirement of reference No.1 and 2 of Memorandum and submit required documents to the satisfaction of the respondent-Government. In case, if it is not complied with, Memorandum Annexure-K Dated 9th January 2017 cancelling the permission granted to the petitioners to run the school shall stand restored immediately after completion of one academic year, i.e. from 1st April, 2018. With these observations and directions, petition stand disposed of.
8. In the light of the above order, the appeals preferred by petitioners before the competent authority, does not survive for consideration. It is also made clear that in case of non- compliance of reference No.1 and 2 of the Memorandum Annexure-K, the petitioners are directed not to admit any student for the academic year commencing from 2018-2019 and the same shall be verified rigorously by the respondent- 15 Government. The action initiated against the Officer is to be proceeded with. It is also made clear that this order shall not be treated as a precedent.
Sd/-
JUDGE lnn