JAGALUR NAYAKARA SANGHA v. GOVERNMENT OF KARNATAKA
1986-11-11
MURALIDHARA RAO
body1986
DigiLaw.ai
MURLIDHER RAO, J. ( 1 ) IF pursuit of knowledge and eradication of mass illiteracy is the motto of establishing a school in a developing nation, like ours, this petition must fail. ( 2 ) PETITIONER is a registered society formed by members of scheduled tribe, called 'nayaka'. After persuasion and concerted efforts, which included filing of W. P. 17969 of 1980 it succeeded in securing a permission to start a High School in Hiremallanahole ; this is evidenced by government Order dated 31-7-1984 (Annexure-D ). It appears Government had decided to establish a Government High School in the same place, Hiremallanahole. However, on 2-8-1984, the authorities revoked their decision and accordingly Annexure 'e' was issued on that date. Consequential orders were issued as per Annexures 'f' and 'g'. It appears notwithstanding the decision of cancellation, the authorities had started the High School section and students were admitted. Therefore by Annexure 'g', instructions were issued to close down these classes and got these students admitted to Government schools in the neighbouring areas. By Annexure 'h', the officers were directed to give compliance report. Thereafter on 22-1-1986, on a telegraphic communication dated 20-1-1986, and phone message, orders were issued to re-start the government High School. This order is the subject-matter of attack, in this petition. ( 3 ) AS on to-day, both the schools are running. The petitioner's grievance, as explained by him, is as follows : ". . . . . . . . . . . . The students prefer Government High School in place of non-Government High School. The villagers are suspecting the genuineness of the Non-Government High School, whether it can permanently cater to the needs of the students from village surrounding Hiremallanahole. Government cannot Claim exemption from liability and repudiate its own decision to the disadvantage of the school started by the petitioner. They are estopped from resiling from the stand taken and assurance given to the petitioner-society to start their own High School. " ( 4 ) MR. Ullal, Learned Counsel for the petitioner urged the following : 1. Government, having given an assurance, cannot start their own school on competitive basis, so as to affect the school started by society; 2. The action to restart the Government School is arbitrary and on the principle of promissory estoppel, Government should be restrained from running the Government school.
Ullal, Learned Counsel for the petitioner urged the following : 1. Government, having given an assurance, cannot start their own school on competitive basis, so as to affect the school started by society; 2. The action to restart the Government School is arbitrary and on the principle of promissory estoppel, Government should be restrained from running the Government school. ( 5 ) PETITIONER has not alleged any malafides. So the only question that arises for consideration is the alleged "assurance" and the application of the principle of promissory estoppel. ( 6 ) ARTICLE 45 of the Constitution of India requires the State to provide free and compulsory education for all children, until they complete the age of fourteen years. Similarly, Article 41 requires the State to make effective provision for education. So the primary responsibility to provide facilities for education is on the State. Therefore if any action is taken to start a government School, it cannot be termed as arbitrary or illegal. As it is a duty cast on the State, it cannot be characterised as having been done on competitive spirit. Indeed if the private institution intends to prosper and attract students, it has to work hard, increase its efficiency, maintain high standard, employ trained teachers and create confidence in the public. ( 7 ) IN this background, I proceed to examine the contentions urged by Mr. Ullal. The first question is whether there is any "assurance" given to the petitioner-society that no Government school will be started ? Admittedly no such assurance is found in the Annexures filed by the petitioner. It was stressed by Mr. Ullal that such an assurance has to be implied from the conduct of the respondents and the other circumstances. The fact that Government had decided to close the High School section in the village, at one point of time, does not mean that for all times to come, it had held out an assurance that it will never start a school. This is a matter of policy, in the discharge of one of the essential functions of the State. Under the Directive Principles of the constitution, it is the primary duty of the State, hence, it could not abdicate or surrender the same in favour of the society. Illiteracy being rampant, in rural areas, no such assurance could be given. On facts there is no material to. infer such an assurance.
Under the Directive Principles of the constitution, it is the primary duty of the State, hence, it could not abdicate or surrender the same in favour of the society. Illiteracy being rampant, in rural areas, no such assurance could be given. On facts there is no material to. infer such an assurance. ( 8 ) MR. Ullal, however, invited my attention to the decision of the Supreme Court in M. P. Sugar mills v. State of UP, AIR1979 SC 621 , [1979 ]118 ITR326 (SC ), (1979 )2 SCC409 , [1979 ]2 SCR641 , [1979 ]44 STC42 (SC ), to contend that by its act and deeds, State is estopped from re-starting a Government High School. The argument is at once fallacious. The principle of promissory estoppel has no application, even remotely. As explained by their Lordships, it is an equitable doctrine, evolved by Courts, to, do justice. It is neither in the realm of contract nor in the realm of estoppel. Reiterating the above decision, the Supreme court held thus in Union of India v. Godfrey Philips India Ltd, AIR1986 SC 806 , (1986 )1 Complj46 (SC ), 1985 (22 )ELT306 (SC ), [1986 ]158 ITR574 (SC ), 1985 (2 )SCALE619 , (1985 )4 SCC369 ; " We have carefully considered both the decisions of Motilal Sugar Mills case and Jeet Ram's case and we are clearly of the view that what has been laid down in Motilal Sugar Mills case reprsents 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 propositions of law laid down in that case. Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case (AIR 1978 SC 621) (Supra), that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition.
Of course we must make it clear, and that is also laid down in Motilal Sugar Mills case (AIR 1978 SC 621) (Supra), that there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the Officer of the Government or of the public authority to make. We may also point out that the doctrine of estoppel being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the Government or public authority 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 person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case (supra) and we find ourselves wholly in agreement with what has been said in that decision on this point. " Being a policy decision dealing with education of illiterate masses in rural areas, it cannot be weighed in terms of commercial equations. These is no merit in this petition; it is accordingly rejected.