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2022 DIGILAW 1454 (KAR)

Manyta International School v. State of Karnataka

2022-11-10

E.S.INDIRESH

body2022
JUDGMENT 1. Heard Sri. D.R. Ravishankar, learned Senior Counsel for Sri. Saravana S., appearing for the petitioner; Smt. A.R. Sharadamba, learned Additional Government Advocate appearing for respondents 1 to 3; and Sri. M.R. Shylendra, learned counsel appearing for the respondent No.4. 2. In this petition, the petitioner-School has challenged the order dtd. 21/10/2022 passed by the respondent No.1 (Annexure-G) and also sought for writ in the nature of mandamus, directing the respondents to grant permission to commence classes for IX and X Standards in the petitionerSchool for the Academic year 2021-2022 in terms of the order passed by this Court in Writ Petition No.4594 of 2022 decided on 15/9/2022 (Annexure-F). 3. The careful examination of the writ papers would indicate that the petitioner-School has already approached this Court in respect of the very same relief in Writ Petition No.185 of 2022 and this Court, by order dtd. 7/1/2022, directed the respondent No.1 to consider the grievance of the petitioner-School. Pursuant to same, the respondentAuthorities have issued endorsement dtd. 17/2/2022. The said endorsement was challenged by the petitionerSchool in Writ Petition No.4594 of 2022. This Court, by order dtd. 15/9/2022, allowed the petition and as such, the endorsement dtd. 17/2/2022 impugned therein was quashed and thereby, this Court has directed the respondent-Authorities to reconsider the grievance of the petitioner-School at the earliest, in any event within a period of two weeks i.e., on or before 19/9/2022. Thereafter, the respondent-Authorities, pursuant to order passed by this Court, has issued endorsement dtd. 21/10/2022 (Annexure-G), directing the petitioner-School to get 'No Objection Certificate' from the Executive Engineer, Public Works Department, Kolar District. 4. Learned Senior Counsel Sri. D.R. Ravishankar, appearing for the petitioner-School, has made available the copy of the letter dtd. 8/11/2022 addressed to the Executive Engineer, Public Works Department, requesting for issuance of the fitness certificate of building. However, that was endorsed by the Executive Engineer that he would get report from the Assistant Executive Engineer, Bangarpet SubDivision. 5. On careful examination of the writ papers and taking into consideration the arguments advanced by the learned Additional Government Advocate, despite this Court having directed the learned Additional Government Advocate to get instructions in the matter, however, petitioner-School was directed to get 'No Objection Certificate' from the Executive Engineer in terms of the endorsement dtd. 21/10/2022, is not correct. 5. On careful examination of the writ papers and taking into consideration the arguments advanced by the learned Additional Government Advocate, despite this Court having directed the learned Additional Government Advocate to get instructions in the matter, however, petitioner-School was directed to get 'No Objection Certificate' from the Executive Engineer in terms of the endorsement dtd. 21/10/2022, is not correct. Accordingly, I am of the view that the writ petition deserves to be allowed by setting aside the endorsement dtd. 21/10/2022. Despite the petitionerSchool having approached this Court on earlier two occasions, and inspite of the direction of this Court, respondentAuthorities have not taken note of the grievance of the petitioner-School nor the observation made by this Court in Writ Petition No.4594 of 2022. At this juncture, it is relevant to deduce the law declared by the Hon'ble Apex Court in the case of COMPTROLLER AND AUDITOR GENERAL OF INDIA vs. K.S. JAGANNATHAN reported in (1986)2 SCC 679 . The relevant paragraphs are 18 to 20, which reads thus: "18. The first contention urged by learned Counsel for the Appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus. Was the relief prayed for by the Respondents in their writ petition. What the Division Bench did was to issue directions to the Appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath, Hindu Undivided Family v. Income-Tax Officer, Special Circle, Kanpur, and another, this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa and Ors., this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers. 19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago Martin, B., in Mayor of Rochester v. Regina said : But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute : Comyn's Digest, Mandamus (A) .......... Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable. The principle enunciated in the above case was approved and followed in The king v. The Revising Barrister for the Borough of Hanley. The principle enunciated in the above case was approved and followed in The king v. The Revising Barrister for the Borough of Hanley. In Hochtief Gammon's Case this Court pointed out (at page 675 of Reports : SCC p. 656) that the powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others, the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation, the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, Fourth Edition, Volume I, Paragraph 89, it is stated that the purpose of an order of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 6. Following the law declared by Hon'ble Apex Court in the above said case, whereby the respondent-Authorities have not construed and given effect to the observation made by this Court in Writ Petition No.4594 of 2022 dtd. 15/9/2022, it is expedient for this Court to interfere with in the matter. In that view of the matter, respondent No.2 is directed to grant permission to petitioner-School to commence classes for IX and X Standards for the Academic year 2021-2022. The said exercise shall be done within one week from the date of receipt of certified copy of this order, so that the petitioner-School shall take recourse to the respondent No.4 for commencement of the classes for the next Academic year. In view of allowing the writ petition by issuing the writ of mandamus to the respondent No.2 to grant permission as stated above, the respondent No.4 shall take decision in accordance with law. In the result, writ petition is allowed.