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1996 DIGILAW 9 (KAR)

LAL BAHADUR MEMORIAL ENGLISH SCHOOL, BANGALORE v. STATE OF KARNATAKA

1996-01-03

H.N.TILHARI

body1996
H. N. TILHARI, J. ( 1 ) HEARD the learned counsel for the petitioner Sri Basavaraj V. Sabarad and Sri U. L. Narayana Rao assisted by Sri M. B. Prabhakar, counsel for respondent No. 5 as well as A. V. Sreenivasa Reddy, learned Addl. Government Advocate. ( 2 ) THE petitioner has filed this petition under Article 226 of the Constitution of India with a prayer to the effect that this Court may be pleased to issue a writ of certiorari or an order or direction in the nature of writ of certiorari quashing the impugned order bearing No. ED 273 PGC 89 dated 23-8-1991, copy of which is annexed as Annexure No. R to the writ petition. The petitioner has also prayed for issuance of writ of mandamus or order or direction in the nature of writ of mandamus directing the respondents to delete the word 'cholur Palya' from the Order No. 288 PGC 288 87 D/-28-9-1987, copy of which is Annexure 'b' to the writ petition. The petitioner's case is that the petitioner-institution is known as 'lal Bahadur Memorial English School' which is a primary school, is a minority educational institution with its address as No. 26/4, 5th Cross, Magadi Road, Bangalore'. According to petitioner's case, the institution was started and it was registered some times in the year 1981 and the Certificate of Registration was issued in favour of the institution by the office of the Registrar of Societies in Karnataka registering it w. e. f. 2nd February, 1981. The petitioner's further case is that the petitioner applied for recognition and for permission to run the English Medium School. His application for that purpose was considered and after due enquiry, according to the petitioner's case, the petitioner was granted permission by respondent No. 1 by his order dated 28-9-1987 bearing No. ED 288 PGC 87 and this permission was granted with retrospective effect, that is, w. e. f. 1981-82. The petitioner's further case is to the effect that in this order of permission and recognition, copy of which is Annexure 'b', a mistake was detected in the description of the address/location of the petitioner's institution and it was wrongly mentioned as 'cholur Palya, Bangalore' while mentioning the name of the petitioner's institution. The mistake on being detected, the petitioner moved the respondents to correct that address so that there may not be any confusion. The mistake on being detected, the petitioner moved the respondents to correct that address so that there may not be any confusion. The petitioner's case is that he made several representations in regard to the respondents, copies of which petitioner has annexed as Annexures 'c' 'd', 'e, 'f' and 'g', but to no effect. The petitioner's further case is that he had been running classes from 1st to 7th during this period and had been admitting the students in those classes with the permission. There were 7 teachers appointed in the school and 2 Ayas. The petitioner's case is that the officers of the Education Department during this period also made inspections and found the work to be satisfactory. The petitioner further alleges that in the year 1991, the petitioner received an order on 19-9-1991 bearing No. ED 273 PGC 89 dated 23-8-1991 from Asst. Educational Officer, South Range, to the effect that Government had passed an order directing the substitution of the name of 5th respondent-School in place of the petitioner in the order dated 28-9-1987, i. e. Annexure 'b' to the writ petition. The petitioner's case is that respondent No. 5 had never made any application in the year 1987 or earlier for the grant of recognition. ( 3 ) NOTICES have been issued to the respondents. Statement of objections supported by an affidavit has been filed on behalf of the respondent No. 5. No counter-affidavit or statement of objections have been filed on behalf of respondents 1 to 4. The petitioner has also filed an application for being permitted to take additional grounds supported by an affidavit which I may say as a rejoinder to that statement of objections. ( 4 ) ON behalf of the petitioner, learned counsel Sri Basavaraj V. Sabarad submitted before me that once permission has been granted in favour of the petitioner in 1987 with retrospective effect and the petitioner has been running the institution and imparting education from Class 1 to 7, a right had accrued in favour of the petitioner to continue the job of running the institution. The subsequent order passed by the opposite parties directing the substitution of name of 5th respondent in place of the petitioner was passed without any notice to the petitioner as well as without any opportunity being given to the petitioner to show cause or to have its say in opposite to the proposal. The order had been passed without giving any reasons by the opposite parties. The learned counsel submitted that as the recognition conferred a right on the petitioner to admit the students to the classes as the permission has been granted to the petitioner, its implied cancellation by substitution of the name of the respondent No. 5 had the effect of jeopardizing the rights of the petitioner-institution and this having been done in violation of principles of natural justice and that petitioner not being given opportunity of having his say, the order impugned is illegal and null and void and deserved to be quashed. The learned counsel also submitted that opposite parties may be directed to correct the address of the petitioner-institution in Annexure 'b'. ( 5 ) I have applied my mind to the contentions raised by the learned counsel for the petitioner and the respondents. There is no denial from any of the respondents as regards to the question whether the petitioner had been given an opportunity of hearing or having his say in the matter of substitution of the name of respondent No. 5 in place of the original name of the petitioner-institution mentioned therein. The order impugned appears to have been passed without giving any notice or opportunity of hearing to the present petitioner. Orders which have civil consequences and which affect the right of certain persons or which adversely affect the rights that have been vested in favour of certain persons should not be passed without to that person, who is going to be affected by the subsequent order which the authority intended to pass without giving that party an opportunity of hearing. It is the well settled principle of law that orders passed in violation of principles of natural justice and fair play are violated of the doctrine of the quality, enshrined in Art. 14 of the Constitution. It is the well settled principle of law that orders passed in violation of principles of natural justice and fair play are violated of the doctrine of the quality, enshrined in Art. 14 of the Constitution. An arbitrary action without following the due process of law and without following the principles of natural justice is really a negation of the rule of law and such an order can be said to be without jurisdiction as where the rule of law operates, the arbitrary action is not permissible. The violation of principles of natural justice in course of passing an order which have civil consequence and absence of reasons therefor renders the order to be illegal and null and void. In this view of the matter and in my opinion that the order contained in Annexure-R to the writ petition is illegal and null and void and it deserves to be quashed. ( 6 ) AS regards the second contention of the petitioner that the opposite party be directed to make the change in the address, in my opinion, that is a matter for the authorities to consider and as in my opinion the order impugned has got to be quashed, the only direction that has to be given to the opposite party is to reconsider the matter. If any application for substitution has been made by the respondent No. 5, that may be disposed of only after giving an opportunity of hearing to the petitioner and respondent No. 5 and in the same way, the matter of change of address also the opportunity to respondent be also given to show cause in the matter as respondent No. 5 may be interested in claiming the benefit of order dated 28-9-1987 and to claim and prove if it had been passed in its favour and not that of the petitioner and it is after the decision of the two claims suitable order may be passed by the authority i. e. respondent. ( 7 ) IN this view of the matter, the writ petition is allowed in part. The writ petition is as such hereby allowed. ( 7 ) IN this view of the matter, the writ petition is allowed in part. The writ petition is as such hereby allowed. The writ of certiorari or an order or direction in the nature of writ of certiorari is being issued and the order dated 23-8-1991, copy of which is the Annexure-R whereby it has been ordered that the name of respondent No. 5 be substituted in place of 'lal Bahadur Memorial English School (Petitioner's school) is hereby quashed. The further direction is issued to the respondents to consider and to decide the matter after giving due opportunity of hearing and of showing cause to the parties in writing as well as orally in the matter and till the decision is given by the authorities in the matter, the petitioner's institution's running may not be disturbed. It is further directed that the opposite parties will consider and dispose of this matter by a reasonable order and within a period of three months from the date of service of copy of this order. The writ petition is thus finally disposed of. No order as to costs. Petition partly allowed. --- *** --- .