Karnataka High Court
Shanthi Institute Of Commerce vs The State Of Karnataka And Ors. on 16 August, 1988
Equivalent citations: AIR1989KANT325
ORDER
1. The petitioner who is the proprietrix of a Commerce Institute now represented by her Legal Representatives has again approached this Court in the 5th round of litigation challenging the orders of the authorities cancelling the recognition granted to her for running a Commerce Institute.
2. The petitioner had made an application on 3-10-1970 for locating a Commerce Institute. That application was considered by the authorities in the year 1970 and by letter dt. 17-12-1970 the Director of Public Instruction informed the petitioner that permission was granted to start the Commerce Institute subject to the following conditions :
1. She should secure atleast three well ventilated and spacious rooms in good locality.
2. She should provide Brand New Typewriters and new furnitures.
3. Appoint qualified and experienced Fulltime teacher.
Petitioner complied with these conditions and accordingly she was granted the recognition sought for. Petitioner was running the institute at the place where it was originally located. But, some time in the year 1972 the petitioner shifted the Institute from the original place to a place close to another Commerce Institute which was being run by the 5th respondent. It is common ground that the distance between the Institute of the 5th respondent and the Institute of the petitioner at the new location is about half a kilometre. Shifting of the Institute to the present location was intimated by the petitioner to the Assistant Director of Public Instruction, Bangalore, on 3-1-1972. The petitioner brought to his notice that the building in which her Institute was earlier located was a tenanted premises and she had occupied that premises on the clear understanding with the owner that she would vacate the same on securing an alternative accommodation; that the owner of the building was persistingly insisting her to vacate the premises as he required the same for his personal occupation and hence she was on the lookout for a suitable accommodation; that as there are only a few number of private buildings on the H.A.L. Main Road, as soon as a building was located, she occupied the same for the Institute; that she very much regretted for having shifted the Institute without prior intimation to him and accordingly she requested his permission to ratify the action taken by her.
This representation of the petitioner which is produced as Annexure B in the writ petition was favourably considered by the Joint Director of Public Instruction, Bangalore, who is the 4th respondent herein and by his letter dt. 25-4-1972 the petitioner was intimated that temporary recognition was granted for the year 1972-73 subject to the usual conditions. It was also mentioned therein that the petitioner should apply for renewal of recognition on or before 2nd Jan., 1973. By this letter of the Joint Director, one thing is clear that the shifting of the premises by the petitioner was not held against her for granting temporary recognition for the year 1972-73. However, it transpires that the 5th respondent who, as noticed earlier, was running a Commerce Institute in the very same locality, complained to the authorities concerned about the shifting of the Institute by the petitioner from its original location to the present place. Presumably on this complaint the Joint Director issued the notice to the petitioner under Annexure D in the writ petition calling upon her to shift the Institute back to its original place or in the alternative to close down the Institute and issue transfer certificates to the concerned students and report the matter to his office on or before 26-3-1973. To this letter of the Joint Director, the petitioner submitted a detailed representation by her letter dt. 21-3-1973 after referring to her earlier letters dt. 1-2-1972 and 3-1-1972.
For the purpose of this case it is sufficient to note the contentions taken by her in her representation dt. 21-3-1973. She submitted, among other grounds, that the Institute was not originally located either at Kodihally or near Aero Engine Factory, but it was located in the H.A.L. Township area (near St. Thomas Church); that the original premises was leased to her by the landlord on the clear understanding that she would vacate the same shortly on securing a suitable accommodation; that the building in which the Institute was located originally was outside the H.A.L. Township boundary and as such it was not a very convenient place for locating the institute especially for female students who were requesting her to find out a better place, as their parents were declining to send children to a lonely dark place; that she could not then secure proper accommodation as the present building was then under construction; that she had also apprised the officers who had come to inspect the premises and had conveyed to them her intention to shift the Institute to a suitable place in due course; that the monthly rent of the present building is Rs. 60/- more than what was paid for the original building and, therefore, it was needless to mention that in the normal course she would not have wished to effect a change in the accommodation and it was only when things went beyond her control, she was compelled to shift the Institute to the present building; that as a result of the shifting the Institute to the present place, the distance between her Institute and the Institute of the 5th respondent is about 2 furlongs and there are some Institutes in the City, viz., Rajan Institute and Jyoti Institute at Ulsoor and Rajan Institute, Model Institute and Regal Institute in the Cantonment area, etc. which are located very close to one another; that she is not indulging in any unhealthy competition and the competition she has entered into is to ensure that her Institute produces better results in the examinations and such being the case it is not proper to call it 'an unhealthy competition', but it is a fair competition and bona fide competition; that as a matter of fact, during that year only six students had sought admission to her Institute on the ground that the Institute of the 5th respondent could not accommodate them for want of seats; that immediately after shifting to the present place she had requested the Joint Director to ratify the action taken by her and that had also been done by the Joint Director under his letter produced as Annexure-C in the writ petition. So, this detailed representation was before the Joint Director when he issued the show cause notice dt. 16-1-1974 which is produced as Annexure-F in the writ petition. The Joint Director in his show cause notice dt. 16-1-1974 (Annexure-F) observed:
"The shifting of the institute to the new premises viz.. Konena Agrahara very close to Shri Institute of Commerce has led to unhealthy competition and has caused lot of inconvenience to the other institutes, Shree Institute of Commerce."
And he further observed :
"He was further, informed in this office memos under reference above, to close the institute or shift back to its original place without entering into any further correspondence. But it is seen that he is still running the institute of Konena Agrahara ignoring and violating the departmental instructions."
(The word 'he' refers to the Power of Attorney Holder of the petitioner).
3. On these grounds, the Joint Director directed the petitioner to show cause as to why the Institute should not be de-recognised as per R. 7 of the Rules for Commerce Education and Examination for committing the, above irregularities. The petitioner submitted another detailed representation to this show cause notice under Annexure-G dt. 29-1-1974. She once again reiterated all the contentions and the explanation given by her under the earlier representation dt. 21-3-1973 (Annexure-E). She also raised the following additional grounds against the proposed action by the authorities under the show cause notice (Annexure-F) :
"1) The Institute was originally located in a residential building and our desire to shift the same was intimated to the Inspecting Officer, at the time of inspection itself.
2) When a suitable alternative accommodation was available the Institute was shifted to the present place which is not far away from the original location.
3) The matter was referred to the department requesting for approval to run the Institute in the new premises.
4) The proposal was not considered for approval initially and recognition of the Institute was withheld. Subsequent reminders were issued from our side requesting for renewal of recognition and then, the Asst. Director -of your Department inspected the new premises. Thereafter we were able to convince the authorities that the shifting was effected only on justifiable grounds. Thus, renewal of recognition was accorded by the department thereby, overruling objections originally placed.
There is absolutely no room for any unhealthy competition on our side with the other Institute viz., Sree Institute of Commerce, as alleged in your show cause notice and instances are not wanting where students have sought admission in our institute at times when they could not secure admission in Sree Institute of Commerce.
If it could be proved that our Institute is causing any unhealthy competition with Sree Institute of Commerce, we submit that our Institute will be closed down right at the moment when it is proved without even reserving the right to go in appeal against your orders.
Even after shifting the Institute about 2 years back to the new place within a stone thr6w distance from the original place and a reasonable distance is maintained from Sree Institute of Commerce.
As could be seen from the results of the previous examinations, our institute tops the other Institutes in this rural area and we are quite certain that it is this reason which has prompted the complainant to lodge a complaint against me."
On this representation, the Joint Director made the following order under Annexure H. It reads as under:
"The replies furnished by the Proprietor, Shanthi Institute of Commerce, Vimanapura Post to the show cause notice issued to him in this office No. A9. Com. Rec. 194/71-72 dt. 16-1-1974 are not convincing. Therefore the recognition granted to Shanthi Institute of Commerce, Vimanapura Post, Bangalore is withdrawn from the next academic year."
Whereas in the show cause notice the Joint Director had asked the petitioner either to close down the Institute at the present location or to shift the same to the original location. But by the order under Annexure-H he had peremptorily withdrawn the recognition granted to her from the next academic year in question and did not give her any option to shift the premises to the original place. She filed an appeal against this order before the State Government as could be seen from Annexure-J filed in the writ petition and the State Government rejected her appeal by its order dt. 5-3-1975. Thus the petitioner made the first visit to this Court in Writ Petition No. 5014 of 1975.
4. I have narrated the facts in great detail up to the stage of filing of this petition since the orders of this Court in that writ petition and also in the subsequent proceedings resulting in an order of remand made by the Division Bench in Writ Appeal No. i002 of .1981 do not make a detailed reference to the facts which culminated in the filing of the first writ petition in Writ Petition No. 5014 of 1975. That writ petition came to be dismissed by a learned Judge of this Court by his order dt. 12-8-1977. It is unnecessary to go into the reasons given by the learned Judge since that order of the learned Judge was reversed 'in the writ appeal preferred by the petitioner in Writ Appeal No. 431 of 1977 disposed of on 7-5-1979 to which I was a party. The Division Bench, while setting aside the order of the learned Judge and dismissing the petition as having become infructuous by efflux of time, observed thus :
"We have no doubt that if the appellant petitioner institution makes an application for grant of recognition, the authorities will consider and dispose it of expeditiously."
5. Accordingly, the petitioner made a further representation to the authorities concerned for the grant of recognition to the Institute located at the new place. That was considered by the authorities by their order dt. 11-8-1980 produced as Annexure-L in the writ petition. The authorities considered the matter once again. The Joint Director by his order dt. 24-11-1979 rejected the request of the petitioner on the ground that there was no need for one more institute in the area in question as it would lead to unhealthy competition and 'accordingly rejected the prayer of the petitioner for grant of fresh recognition as the petitioner did not satisfy the conditions laid down in R. 3(A)(ii) of the Rules for Commerce Education, That Rule reads as under :
"Any Commerce School/ Institute seeking recognition shall fulfil the following conditions : -
(ii) That there is no Commerce Institute/ School within a radius of 2 kilometers from the proposed institute in case -of rural areas, and I kilometer in the case of Cities and Municipal areas.
6. The petitioner filed an appeal against this order of the Joint Director before the Director of Public Instructions who by his order dt. 11-8-1980 allowed her appeal and granted the recognition as sought for. But though that order is not a speaking order, it shows that the Director of Public Instructions (SPL) had considered the correspondence between the parties right from the year 1970 up to the date of disposal of the writ appeal, i.e., Writ Appeal No. 431 of 1977. This order of the Director was challenged by the 5th respondent in Writ Petition No. 21018 of 1980. The learned Judge who heard this petition by his order dt. 2-7-1981 quashed -the order of the Director and remitted the matter to the authorities to consider the application of the petitioner for recognition if she undertook to run the Institute in accordance with the provisions of R. 3(A)(ii) of the Rules for Commerce Education. It is this order of the learned Judge which has further prolonged the litigation between the parties since an objection taken before the learned Judge about the locus standi of the 5th respondent to challenge the order in favour of the petitioner was overruled by the learned Judge. It was contended by the learned counsel for the petitioner that the 5th respondent is not in aggrieved party since it has no personal interest in the grant of recognition to the petitioner; that the rules framed by the Government for regulating the Commerce Institutes are not statutory rules but only administrative in character for the guidance of the authorities concerned and hence if there is any infraction of the said rule by the petitioner, it would not give a right to the 5th respondent to challenge the order of the authorities in favour of the petitioner. The learned Judge in his detailed order held that the 5th respondent was a person aggrieved and the interest of the 5th respondent is not a commercial interest but the interest of a rival Institute which had been carrying on the business and running the Commerce Institute since 1962.
It is unnecessary to go into the reasoning of the learned Judge, since that order of the learned Judge was reversed in appeal by-the Division Bench in Writ Appeal No. 1002 of 198 1. The Division Bench on the ground that the appellate order of the DPI was not a speaking order remitted the matter to the DPI with a direction to hear the appeal of the petitioner on merits taking into consideration the changed circumstances if any-The Division Bench made it clear that any observation made by the learned Judge in the writ petition should not influence or affect the decision of the DPI. The Division Bench also directed the DPI to consider the question of locus standi of the 5th respondent to be heard.or not to be heard.
The Division Bench made a further direction that till the matter was finally disposed of by the DPI, the Institute of the petitioner should be allowed to run at the place where it was being run now. So, once again the matter was taken up by the DPI and he made the impugned order at Annexure P dt. 17-7-1987 rejecting the request of the petitioner to grant recognition and thereby he affirmed the order made against her by the Joint Director under Annexure 0. The reasons given by the Director are -
(i) On the question of locus standi to quote his own words:
"It is established beyond any shadow of doubt that Sri Institute of Commerce which was established during 1962 much earlier to the establishment of Shanthi Institute of Commerce in HAL area, has locus standi to be heard for the reason that the formers interest have been affected by the action of Shanthi Institute of Commerce."
ii) On the question of shifting of the premises contrary to the relevant rules, he observed :
"Shanthi Institute of Commerce Vimanapura Bangalore-17 was granted permission to start a Commerce Institute at Near St. Thomas Church, HAL Post, Bangalore-17 on the basis of an undertaking given by them to abide by the rules of the Department in all respects. In spite of the fact that a notice issued by the Department restraining it from shifting the institute from the present location to Konenna Agrahara at a distance of half a furlong from Sri. Institute of Commerce, Shanthi Institute of commerce shifted its institute without permission from the department and this has resulted in unhealthy competition in the locality. Under the circumstances detailed above, the appeal of Shanthi Institute of Commerce Vimanapuram, Bangalore-17, praying for according recognition is rejected in the interest of smooth functioning of Commerce institutes already existing in the said locality."
So, on these 2 grounds, the appeal of the petitioner was rejected and that is how this matter has come up before this Court in the 5th round of litigation between the parties.
7. Before proceeding further, it would be convenient and is necessary to decide the question of locus standi of the 5th respondent to challenge the order made in favour of the petitioner by the Director of Public Instructions under Annexure M. In one of the earliest decisions of this Court in Writ Petition No. 9849 of 1980 on the effect of the rules framed under the Commerce Education, Swami, J. had ruled that the aggrieved party cannot maintain a petition under Art. 226 of the Constitution as no legal right of the aggrieved party is infringed and that the interest if any of that party is only a commercial interest and that cannot be held to be sufficient to maintain the writ petition. Accordingly, that writ petition -filed by the rival aggrieved party against the order of granting recognition to another institute was dismissed at the stage of preliminary hearing. But this decision was not brought to the notice of the learned Judge who disposed of the 2nd writ petition filed by the 5th respondent against the petitioner in W.P. No. 21018 of 18. Though the learned Judge in that writ petition held that the 5th respondent has locus standi to challenge the order made in favour of the petitioner, in the subsequent decision rendered by the very same Judge on similar facts in Writ Petitions Nos., 1859 to 1861 of 1984 (reported in (1986) 2 Cur CC 600) he held thus:
"There is one more reason which does not support the case put forward by the petitioners that they are aggrieved by the unhealthy competition created by the fourth institution in Kanakapura. The Rules earlier mentioned are executive Rules not having the force of law but creating mere relationship between the institute and-the Department of Public Instruction, in regard to their running of the Commerce Institute relying on the education policy of the State. It is not a statutory rule having the force of law. In such cases, the third parties do not acquire any legal right which they can enforce against either the Department or the State Government as if a legal right is infringed. See Kumari Regina v. St. Aloysius Higher Ele. School, and G. J. Fernandes v. State of Mysore, ."
The learned Judge dismissed the petitions filed by some Institutes of Commerce who had challenged the recognition granted to a rival Institute. So, the legal position as far as this High Court is concerned as held by two learned Judges of this Court is that the rules framed for regulating Commerce Education are wholly administrative in ' character and directory and breach of those rules will not confer any right on one Institute to challenge the recognition granted to the rival Institute.
7A. Mr. Subba Rao, learned counsel for the petitioner, has adopted the same argument in this case and submitted that the locus standi of the 5th respondent was wrongly decided by the Director of Public Instructions and that requires re-consideration by this Court.
8. Mr. Datar, learned counsel for the 5th respondent, submitted that the question of locus standi did not arise before the DPI though that was one of the questions, the Division Bench had observed, should be considered by the DPI, and the only point for consideration before the DPI was whether the 5th respondent had a right to be heard since it was a person who was aggrieved by the order of recognition in favour of the petitioner. He submitted that the question of conflicting interest between the petitioner/ Institute and the 5th respondent/ Institute did arise on the facts of this case since the petitioner had shifted her Institute very close to the Institute of the 5th respondent contrary to the relevant rules in question and, therefore, the 5th respondent had a right to be heard by the DPI though the 5th respondent had not claimed any relief for itself.
Hence the question of locus standi in the manner raised by the petitioner did not arise for consideration.
8A. I am of the view that this argument of Mr. Datar makes a fine distinction between the right of hearing and the right of claiming a relief. I do not think such a fine distinction can be permitted on the facts and in the circumstances of the case.
9. Records disclose that it is only on the complaint of the 5th respondent the authorities bestirred themselves and issued the notice to the petitioner to show cause why the recognition granted to her should not be cancelled. But for the representation of the 5th respondent, the authorities would not have interfered with the right of the petitioner to run her Institute at the new place. The authorities had also ratified the action taken by the petitioner in shifting her Institute, to the new premises for nearly 2 years. On the representation made by the petitioner and the authorities being satisfied that there was no wilful contravention of the rules, the authorities had permitted her to run the Institute at the new place. Therefore, but for the complaint of the 5th respondent, the petitioner would not have been put to this considerable trouble and agony of litigation for a period of nearly one and a half decades. Therefore, there was an issue before the DPI about the locus standi of the 5th respondent to challenge the recognition granted to the petitioner.
9A. That takes me to the question of locus standi of persons similarly positioned as the 5th respondent. This question is no more res integra in the light of the decision of the Supreme Court in The Nagar Rice And Flour Mills v. N. Teekappa Gowda And Bros., . That was a case which arose out of the Rice Milling Industry (Regulation) Act, 1958. The owner of certain rice mill shifted its existing location and obtained necessary permissions for change of location from the Director of Food & Civil Supplies. The owner of another rice mill challenged the order granting permission to shift the rice mill. That writ petition (W.P. No. 496 of 1969) was allowed by this Court. In reversal of the order of this Court the Supreme Court observed thus :
"...... The right to carry on business being a fundamental right under Art. 19(1)(g) of the Constitution, its exercise is subject only to the restriction imposed by law in the interests of the general public under Art. 19(6)(i).
Section 8(3)(c) is merely regulatory : if it is not complied with, the appellants may probably b exposed to a penalty, but a competitor in the business -cannot seek to prevent the appellants from exercising their" right to carry on business, because of the default, nor can the rice mill of the appellants be regarded as a new rice mill."
This case was again considered by the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, AIR 1976 SC 578. In that case it was ruled that the proprietor of a cinema theatre is not an aggrieved person and is not entitled to maintain a writ petition against the grant of licence to a rival operator on the ground that Z he is a person aggrieved and hence he has no locus standi to invoke the certiorari jurisdiction of this Court. The relevant portions of the discussion of the Constitution ,Bench of the Supreme Court are found in paras 36 to 38 of the judgment. They read as :
"It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories : (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do, not concern them They masquerade as crusaders for justice. They pretend to act in the name of Pro Bona Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they ate actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more. than spoking the wheels of administration: The High Court should do well to reject the applications of such busybodies at the threshold.
The distinction between the, first and second categories of applicants, though real, is not', always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous.. fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants, undoubtedly stand in the category of 'persons aggrieved. In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer-zone may not be 'persons aggrieved'.
To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are : Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered a legal' grievance, a person 'against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words 4 person aggrieved' is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute dealing with private rights of particular individuals?"
The Constitution Bench further observed in para 41 of the Judgment thus : -
"The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option, in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4 ......
In that case, though the rules in question were statutory rules called the Bombay Cinema Rules, 1954, the Supreme Court had ruled that a rival operator had no locus standi to challenge the licence granted to another operator under the aforesaid rules.
10. Mr. Datar, learned counsel for the 5th respondent, sought to distinguish this decision by relying on an unreported decision of the Supreme Court in Civil Appeal No. 4506 and 8257 of 1984. That was a decision rendered by a smaller bench of the Supreme Court. The very same point which came up before the Supreme Court in Jasbhai's case, AIR 1976 SC 578 arose for consideration in that Civil Appeal before the Supreme Court. The Supreme Court observed :
"The High Court in the judgment sought to be appealed against has taken the view that by reason of the decision of this Court in Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578, a rival cinema owner has no locus standi to challenge an order made by an authority granting licence to another person for putting up a cinema theatre. This view taken by, the High Court does not appear to be correct since Section 6 of the Karnataka Cinemas (Regulation) Act, 1964 specifically provides that the licensing authority shall, in deciding whether to grant or refuse licence, take into consideration inter alia any representations made by persons already giving Cinematograph exhibition in or near the proposed locality. If an existing Cinema owner has a right to make a representation to the licensing authority and the licensing authority is bound to take into consideration such representation before deciding whether to grant or refuse licence, a fortiorari the existing cinema owner making such representation would have a locus standi to challenge the rejection of his representation and the grant of licence."
In view of this ruling of the Supreme Court in the aforesaid Civil Appeal, Mr. Datar contended that it would be wrong to apply the ruling of the Supreme Court in Jasbhafs case, AIR 1976 SC 578 to the facts of this case.
11. It should be noticed that firstly the rules in question in our case are administrative rules and not statutory rules and secondly in the rules in question there is no provision similar to Section 6 of the Karnataka Cinema (Regulation) Act, 1964. Rule 3 or for that matter any other rule in the rules framed for commerce education does not provide that a rival institute carrying on the same business as that -of -the petitioner in this case should be heard before recognition is granted to the petitioner. As observed by this Court in Vani Institute of Commerce v. State of Karnataka, (W.P. Nos. 1859 to 1861 of 1984 disposed of on 27-6-1985) (reported in (1986) 2 Cur CC 600), the rules in question are rules of regulatory nature and the third party does not get any right to invoke the jurisdiction of this Court under Article, 226 of the Constitution in case any dispute arises between the person who applied for recognition and the authorities concerned for granting such recognition. The third party did not acquire a legal right against the Department or the State, and therefore, the decision of the Supreme Court on which Mr. Datar relied cannot be said to have laid down a different proposition of law which runs counter to the decision of the Constitution Bench of the Supreme Court reported in Jasbhai's case, AIR 1976 SC 578.
12. Mr. Datar also submitted that the rule of locus standi must be tested by the decision of the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, . Whether the principles laid down in Ramana's case are applicable to the facts of this case require consideration. In that case the rights of the parties under the provisions of Section 10 of the Contract Act arose for c6nsideration and also the right to be treated fairly and reasonably and not arbitrarily which is protected under Art. 14 of the Constitution. There were rival tenderers for running the 11 Class Restaurant and two Snack Bars at the Air Port in question. Tenders were called for because the said authority was unable to run the restaurant business at the air port in question by itself. So, when we have rival tenderers for bagging the same contract for a monetary consideration an element of largesse comes into play and that is how the Supreme Court laid down the law relying on Article 14 of the Constitution to the facts of the case. But here there is no question of granting largesse by the DPI and what is involved herein is a simple case of recognition to run the Institute under the relevant administrative rules framed by the State Government. Those rules are not statutory rules and recognition could be granted by the authorities if one complies with these rules.
The petitioner had shifted the Institute from its original place to a new place and that was considered favourably by the authorities concerned and therefore there is no good reason for the authorities to hold that the shifting of the Institute by the petitioner tantamounts to infraction of the rule in question. Further, that rule is not a statutory rule which is mandatory in its operation but it is only directory. The petitioner's case before the authorities is that the 5th respondent is not in any way prejudiced by the running of the institute at the new place of location. It is the petitioner who had repeatedly asserted that the students who could not be accommodated in the 5th respondent/ Institute had joined the petitioner's Institute and such admission has not in any way prejudiced the interest of the 5th respondent. In the circumstances,- the authorities were in error in taking into consideration certain extraneous factors, viz., prejudice that was caused to the 5th respondent and the unhealthy competition etc. due to the change of location of the petitioner's institution. Therefore, the impugned orders without taking into consideration the detailed representation made by the petitioner is vitiated by lack of application of mind to the relevant material on record. The two grounds made out by the Director of Public Instruction, viz., the 5th respondent had locus standi to challenge the order in favour of the petitioner is wholly untenable in law in the light of the decision of the Supreme Court in Jasbhai's case, AIR 1976 SC 578 and the 2nd ground that there was an unhealthy competition by the shifting of the premises to the new location is not borne out by any acceptable material on record and, therefore, the impugned orders are liable to be quashed. The are accordingly, quashed.
13. The next question is whether the matter has to go back to the Joint Director who is the original authority for tile consideration of the application of the petitioner for recognition. Having held that the 5th respondent has no locus standi to challenge the order of recognition in favour of the petitioner, it is unnecessary to remit the matter to the authorities concerned once again since the change of the location had already been ratified by the authorities under the order made under Annexure L. So the only question for consideration is regarding the unhealthy competition. The petitioner had specifically averred in her representation that the students who could be accommodated in the 5th respondent/ Institute had been admitted in her institute. Secondly, there is no denial of the fact that the petitioner's institute -has produced better results than the other institutes in the vicinity.
A sketch has been produced before me to show that since the litigation between the parties commenced in 1974, a number of Commerce Institutes have come up in the area in question. As of this day there Are 5 institutes operating in this area. There is no dispute that Sudheer Institute of Commerce which is about 3/4 kilometre away from Sophia Institute of Commerce is being run since 1987. the Christ Institute of Commerce and the Sudheer Institute of Commerce have no grievance about the location of the petitioner's institute. Sophia Institute of Commerce opened in June, 1987, has since been derecognised. These facts show that there is a need for Commerce Institute in the area in question presumably because of the vast development that has taken place in terms of population, business and the needs of business community in the HAL area since 1974. That is the reason the Division Bench of this Court in Writ Appeal No. 1002 of 1981 had made an observation that the authorities should take into consideration the changed circumstances. Hence it would be a futile exercise to remit the matter to the Joint -Director as this Court is satisfied that the interests. of justice do not require the prolongation of litigation between the parties and this Court should put an end to this litigation by issuing the necessary direction to the authorities concerned to grant recognition to the petitioner/ Institute. This Court has taken such decisions in several other writ petitions disposed of earlier following the decision of the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel. Tubes Mazdoor Sabha, .
14. Accordingly, this petition is allowed', and the impugned orders at Annexures 0 and P are quashed and there shall be a direction to the Joint Director of Public Instructions to grant recognition to the petitioner to run the institute at its new location without reference to the objections of the 5th respondent for the period commencing from 13th Mar. 1973 up to the end of this academic year. Since the petitioner has been running the Institute for the 17 years without any interruption, her case for permanent recognition shall be considered in the light of this order.
15. Though this writ petition was filed on 21-8-1987, the delay in the disposal of the writ petition has resulted in some adverse consequences to the students who were admitted to the petitioner/ Institute. The last date for payment of the prescribed fee for taking the examination in question is 10th of Aug., 1988 without penalty and now on account of the delay in the disposal of the writ petition the students should not be penalised for each day's delay by paying Rs. 10/- per day as penalty. The petitioner also cannot be taken to task for the delay in the disposal of the writ petition and hence the Director shall entertain the applications of the students for the Commerce examination to be held in Nov., 1988 without collecting the stipulated penalty for the delayed period.
Parties to bear their costs.
16. Petition allowed.