BALAN v. STATE OF KERALA — 1981 DIGILAW 47 (KER)

Judgment :- 1. The petitioner applied for permission to open a High School at Kechery. Ext P-1 is the application made. The school was sanctioned to the 3rd respondent, a newly formed society. The society was not having any land of its own while the petitioner was having 3.30 acres of land set apart for the starting of a High School. Due to influence exerted by the 3rd respondent, the 3rd respondent was given the sanction to start the new school by the 1st respondent-State. It was under the above circumstances that the petitioner approached this Court with this original petition to quash the Notification sanctioning the opening of the new High School named Al-Ameen H. S., Kechery to the 3rd respondent. A relief by way of a writ of mandamus or other appropriate writ, order or direction directing respondents 1 and 2 to consider the petitioner's application in accordance with law is also prayed for in the original petition. 2. A counter-affidavit has been filed on behalf of the Ist respondent-State. In the counter-affidavit it is stated: The petitioner has no legal right or locus standi to challenge the final notification issued sanctioning new schools. The petitioner has not suffered any legal wrong or injury in the sense recognised by law so as to approach this Court under Art.226 of the Constitution. The 3rd respondent-society has produced necessary agreement for purchasing the required site for opening the school. The site proposed by the 3rd respondent is not near a cremation ground as alleged by the petitioner. The Government have issued directions to the effect that absolute ownership of the land need not be insisted at the time of applying for the school. The procedure prescribed in Chapter V of the Kerala Education Rules has been followed in this case. The 3rd respondent-society executed an agreement with the owner of the site for purchasing the land. The school will be allowed to be opened by the 3rd respondent only after duly complying with the further formalities for starting the school. 3. The 3rd respondent in the counter-affidavit has stated: The allegation that the school was sanctioned on the basis of influence exerted by the 3rd respondent is incorrect and totally false. The allegation that the sanction accorded to the 3rd respondent is in violation of the provisions contained in Chapter V of the K. E. R. is not correct. 3. The 3rd respondent in the counter-affidavit has stated: The allegation that the school was sanctioned on the basis of influence exerted by the 3rd respondent is incorrect and totally false. The allegation that the sanction accorded to the 3rd respondent is in violation of the provisions contained in Chapter V of the K. E. R. is not correct. The society had been in possession of the site proposed for the school from 1977 onwards. As per registered document dated 19-7-1979 of the SRO., Mundoor the owner had assigned the property to the society. The petitioner had no locus standi to file this original petition. The 3rd respondent also filed an additional counter-affidavit. In the additional counter-affidavit it is stated: The petitioner did not avail of the alternate remedy of filing a revision under R.12 Chapter V of the K.E.R. Hence the original petition is not maintainable. The agreement produced along with the application tor the sanctioning of the school signed by the Secretary was for and on behalf of the society. After the sanction of the school on 19-7-1979 the property was purchased by the society. The owner of the land, a committee member of the society from 1977, was in possession of 3 acres and 4 cents of property on behalf of the society. The respondent has made substantial constructions spending more than 21/2 lakhs for the school. Ext. R-1 produced along with the counter-affidavit is a rough sketch plan of the school and its compound. There is no merit in the contentions of the petitioner. 4. R.6(v) of Chapter V of the K.E.R, reads: "6. Documents etc. to accompany the application:- Every application shall be accompanied by: (i) ... ... (ii) ... (iii) ... (iv) ... ... (v) documentary evidence to show the applicant's absolute ownership or his right to be in exclusive possession for a period of not less than six years of the site and buildings (if any) of the proposed school; Rule 9 (i) of Chapter V of the K.E.R. reads: "9. Conditions for grant of permission to open new schools:- No permission to open a new school shall be granted (i) if the applicant does not possess absolute ownership or right to be in exclusive possession for a period of not less than six years over the site, buildings and other properties of the school;" In J. M. Desai v. Roshan Kumar (AIR. 1976 SC. 578) the Supreme Court said: "According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person' and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a 'stranger', that Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances The expression 'aggrieved person' denotes an elastic, and, to an extent an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him." (Para. 12) In the above decision the Supreme Court further said: "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) busy body of meddlesome interloper. Persons in the last category are distinguishable from those coming under the first two categories." (Para. 36). In Fertilizer Corporation Kamagar Union v. Union of India (AIR. 1981 SC. 344) it is said:, ' The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Art.226 or under Art.32 of the Constitution." (Para. 23) In the above decision it is further said: "We have no doubt that in competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenge of the times. 23) In the above decision it is further said: "We have no doubt that in competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenge of the times. Ubi jus ibi re-medium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its truine facets." (Para. 38) In para 48 of the above decision the Supreme Court further said: "48. If a citizen is ho more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door Of the court will not be ajar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told of at the gates, although whether the issue raised by him is justiciable may still remain to be considered." (Para. 48) 5. The petitioner in this original petition is not a busybody. He cannot be considered as a wayfarer also. He applied for sanction to open an aided school when, the 1st respondent issued a notification inviting applications for starting new aided schools. He applied in time. He fulfilled all the conditions insisted, Not only that, his application was rejected, but sanction was given to the 3rd respondent. The 3rd respondent had no title to the land on which the school has been started or had any right to be in exclusive possession for a period of not less than six years either at the time of the application or at the time of the sanction given to him to open the school. If the 3rd respondent was not legally entitled to get the sanction, naturally the sanction has to be given to an applicant who has satisfied all the conditions insisted by the rules. The petitioner cannot be said to be one whose legal rights are not infringed by the illegal sanction. All the expenditure tor running an aided school including salary for the teachers are met by the Government. The petitioner cannot be said to be one whose legal rights are not infringed by the illegal sanction. All the expenditure tor running an aided school including salary for the teachers are met by the Government. So, by a wrong and illegal sanction it cannot be said that there is no dissipation of public funds 6. A contention has been taken by the 1st respondent-State that the rules governing the sanction of new schools and upgradation of existing schools are only regulatory and hence the violation of any of those rules cannot vitiate the sanction. R.6 of Chapter V of the K.E.R begins with the words "Every application shall be accompanied by" One of the documents that should be submitted along with the application is that which shows the applicant's absolute ownership or his right to be in exclusive possession for a period of not less than six years of the site of the proposed school. It is further provided in R.9 of Chapter V that no permission to open a new school shall be granted if the applicant does not have the site. By no stretch of imagination it can be said that provisions of R.6 and 9 of Chapter V are only regulatory. R.6 and 9 are there for a specific purpose The purpose is that the new school sanctioned or existing school upgraded should have the minimum facilities that should be there for a school Can an applicant insist that he should get the sanction for a school without even the site for the same. Can a picture be drawn without the wall? The provisions of R.6 and 9 of Chapter V of the K.E.R. are mandatory and are meant to be complied with by the applicants. What is seen from this and the similar original petitions filed before this Court is that the conditions insisted by R.6 and 9 are observed more in their breach. There should be an end for this. The Government should consider only applications submitted in accordance with R.6 of Chapter V and give the sanction only strictly in accordance with R.9. What is seen from this and the similar original petitions filed before this Court is that the conditions insisted by R.6 and 9 are observed more in their breach. There should be an end for this. The Government should consider only applications submitted in accordance with R.6 of Chapter V and give the sanction only strictly in accordance with R.9. As long as R.6 and 9 are there, the Government have no power to consider an application which is not submitted in accordance with R.6 of Chapter V. The word 'regulate' that appears in S.3 of the Education Act, 1958 cannot and will not confer any such power on the Government. 7. In this case, permission to start a new school was given to the 3rd respondent who had no site even when the permission was given. The sanction is hit by R.9 of Chapter V of the K.E R and is liable to be interfered with by this Court But this Court has to take into account what happened after the sanction. The 3rd respondent opened the school and it is in existence for nearly two years. If this Court interferes with the sanction, untold miseries will be caused to the innocent pupils who are prosecuting their studies in this school. In view of this peculiar circumstance, this Court is not exercising the discretion under Art.226 of the Constitution for setting aside the impugned sanction. This does not mean that in future also such sanctions will be saved by this Court. In the result, the original petition is dismissed. No costs.