Full Judgment Text
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ST
DATED THIS THE 21 DAY OF OCTOBER, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 6058 OF 2020 (EDN-RES)
C/W
WRIT PETITION NO.9554 OF 2020 (END-RES)
IN W.P.NO.6058/2020:
BETWEEN:
R
NEXGEN EDUCATION TRUST(REGD.)
HAVING OFFICE AT NO.320, AYAPPA SOCIETY,
MADHAPUR, HYDERABAD – 81.
MANAGING SRI CHAITANYA TECHNO SCHOOL,
PRESENT PROPERTY ID.NO.103145, 102186
(FORMER SURVEY NO.340/1 OF TUMKUR)
HORPETTE EXTENSION,
BEHIND SHIVA SHANKARI FUELS,
NH-4, KOTHI THOPU,
TUMKUR – 572 102.
REP. BY ITS AUTHORIZED REPRESENTATIVE/
SECRETARY SRI. RAMA RAO PANTHINA.
…PETITIONER
(BY SRI. P.D. SURANA, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY FOR EDUCATION,
DR. AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
PUBLIC EDUCATION DEPARTMENT,
TUMKUR – 572 103.
2
3. DEPUTY SECRETARY,
DEPARTMENT OF EDUCATION,
(PRIMARY & SECONDARY)
DR.AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
…RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, AGA FOR R1 – R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 31.05.2019 ISSUED
BY THE R-2 (DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS), TUMKUR PRODUCED HEREWITH AS
ANNEXURE-G AND REVISION PETITION NO.174/2019
ORDER DATED 03.02.2020 PRODUCED AT ANNEXURE-H
AND MADE BY THE R-3 AND THE DEPUTY SECRETARY,
DEPARTMENT OF EDUCATION (PRIMARY AND SECONDARY)
AS APPELLATE PARTY IN REVISION PETITION NO.174/2019.
IN W.P.NO.9554/2020:
BETWEEN:
NEXGEN EDUCATION TRUST(REGD.)
HAVING OFFICE AT NO.320, AYAPPA SOCIETY,
MADHAPUR, HYDERABAD – 81.
MANAGING SRI CHAITANYA TECHNO SCHOOL,
PRESENT PROPERTY ID.NO.103145, 102186
(FORMER SURVEY NO.340/1 OF TUMKUR)
HORPETTE EXTENSION,
BEHIND SHIVA SHANKARI FUELS,
NH-4, KOTHI THOPU,
TUMKUR – 572 102.
REP. BY ITS AUTHORIZED REPRESENTATIVE/
SECRETARY SRI. RAMA RAO PANTHINA.
…PETITIONER
(BY SRI. P D SURANA, ADVOCATE)
3
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY FOR EDUCATION,
DR. AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
PUBLIC EDUCATION DEPARTMENT,
TUMKUR – 572 103.
…RESPONDENTS
(BY SRI. PRAMODHINI KISHAN, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 26.05.2020 ISSUED
BY THE R-2 (DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS), TUMKUR, PRODUCED HEREWITH AS
ANNEXURE-S.
THESE WRIT PETITIONS COMING ON FOR FINAL
DISPOSAL THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner a registered Educational Trust which at the
very first para of the Writ Petition assures “ to provide
educational facilities to all sections of societies on no profit and
no loss basis” is knocking at the doors of Writ Court
essentially grieving against the denial of permission for
4
establishing a School for imparting education at the level of
st th
1 to 8 Std in English medium, vide Endorsement dated
nd
31.05.2019 issued by the 2 respondent-DDPI at Annexure-
G, it’s Revision Petition No.174/2019 challenging the same
having been negatived by the Government vide order dated
3.2.2020 at Annexure-H.
2. After service of notice, the respondents have
entered appearance through the learned Additional
Government Advocate who having filed the Statement of
Objections on 29.9.2020, resists the Writ Petitions making
submission in justification of the impugned orders and the
reasons on which they have been structured.
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant indulgence in the matter for the following reasons:
(a) The substantive ground for denying permission for
establishing the school is that, the petitioner-Trust has not
produced the conversion order of the land in question to
non-agricultural purpose; in other words, the land continues
to be agricultural in nature; this is apparently wrong; this
land having been converted to non-agricultural user
5
(industrial) by the Tumkur District Deputy Commissioner’s
order dated 23.5.1986, now figures in Yellow Zone in the
statutory Revised Master Plan [2031], formulated under the
provisions of Sections 9 & 14 of the Karnataka Town and
Country Planning Act, 1961, a copy of the CDP is at
Annexure-W; in view of a Division Bench decision of this
Court in Special Deputy Commissioner Vs. Bhargavi
Madhavan, ILR 1987 KAR 1260 , there is no requirement of
one more formal conversion order that otherwise was
warranted in terms of Section 95 of the Karnataka Land
Revenue Act, 1964; the same ratio is reiterated by another
Division Bench in W.A.No.100124/2018 between Hubli
Dharwad Urban Development Authority Vs. State and
another, decided on 22.10.2018; therefore, there is a grave
error of law apparent on the face of the impugned orders that
have occasioned a great injustice to the petitioner.
(b) The above apart, the Tumkur Urban Development
Authority constituted under the provisions of the Karnataka
Urban Development Authorities Act, 1987, vide letter dated
20.7.2018 has specifically stated that the land in question
can be used for educational purpose in view of it’s inclusion
in the Approved Comprehensive Development Plan (Revised-
6
II)-2031; the content portion of the said letter, a copy whereof
is at Annexure-D, reads as under:
“
«µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, G¯ÉèÃTvÀ ¤ªÀÄä ªÀÄ£À«AiÀÄ°è vÀĪÀÄPÀÆgÀÄ
vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, vÀĪÀÄPÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§gï 340/1
gÀ eÁVAiÀÄÄ ¨sÀÆ G¥ÀAiÉÆÃUÀªÀ£ÀÄß ºÁUÀÆ ªÀ¸Àw ªÀ®AiÀÄzÀ°è ±ÉÊPÀëtÂPÀ
±Á¯Á GzÉÝñÀPÉÌ CªÀPÁ±À«gÀĪÀ §UÉÎ w½¸ÀĪÀAvÉ PÉÆÃjgÀÄwÛÃj.
¥Àj²Ã°¸À¯ÁV, ¸À°è¹gÀĪÀ ¸ÀªÉð £ÀPÉëAiÀÄ£ÀéAiÀÄ vÀĪÀÄPÀÆgÀÄ
vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, vÀĪÀÄPÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§gï 340/1
gÀ eÁUÉAiÀÄÄ vÀĪÀÄPÀÆgÀÄ £ÀUÀgÀzÀ ¸ÀܽÃAiÀÄ AiÉÆÃd£Á ¥ÀæzÉñÀzÀ
C£ÀĪÉÆâvÀ ªÀĺÁAiÉÆÃd£ÉAiÀÄ (¥ÀjµÀÌøvÀ-11) -2031 gÀAvÉ ªÀ¸Àw
ªÀÄvÀÄÛ PÉgÉ §¥sÀgï GzÉÝñÀPÉÌ PÁ¬ÄÝj¸À¯ÁUÀÄvÀÛzÉ. ªÀ®AiÀÄ
¤AiÀĪÀiÁªÀ½UÀ¼À£ÀéAiÀÄ ªÀ¸Àw ªÀ®AiÀÄzÀ°è ¥Áæ¢üPÁgÀ¢AzÀ «±ÉõÀ
¸ÀAzÀ¨sÀðzÀ°è C£ÀĪÀÄw¸À§ºÀÄzÁzÀ ±ÉÊPÀëtÂPÀ GzÉÝñÀPÉÌ (¥ÉæöʪÀÄj
±Á¯ÉªÀgÉUÉ) CªÀPÁ±À«gÀÄvÀÛzÉ JA§ «µÀAiÀĪÀ£ÀÄß vÀªÀÄUÉ F ªÀÄÆ®PÀ
w½¸À¯ÁVzÉ.”
The interpretation placed by the learned AGA on the text of
this letter that it only indicates conversion potential of the
land and not the conversion as such to educational purpose,
is bit difficult to countenance; the words used in official
correspondence cannot be interpreted by employing the rules
applicable to statutory construction; even otherwise, it was
open to the answering respondent to solicit from the
concerned authority any clarification in this regard; however,
such a positive approach was not adopted and nowadays
same cannot be expected from the officialdom, is the heart
burn of the citizens.
7
(c) The respondents in their Statement of Objections
seek to justify the impugned orders stating that there is non-
compliance of Rule 3(4) of the Karnataka Educational
Institutions (Classification, Regulation and Prescription of
Curricula etc) (Amendment) Rules, 2018; the said provision
reads as under:
“Every private body of persons desiring to establish
and maintain an educational institution imparting
pre-primary, secondary and higher secondary
education or any part thereof shall own or have on
lease for a minimum period of thirty years following
minimum contiguous extent of land for the building
and playground of the educational institution with
permission from relevant authorities to use for
educational purposes:”
The land in Sy.No.340/1 is taken by the petitioner-Trust on
lease basis for a period of thirty years vide registered Lease
Deeds both dated 23.8.2018 at Annexures – B & B1, is not in
dispute; the said land having been converted to industrial
purpose way back in May 1986 has no longer retained its
agricultural character; such a converted land can be put to
residential use because of inclusion per se in the
Comprehensive Development Plan; residential purpose
necessarily includes educational ones; it is profitable to
reproduce para 18 of the judgment in Hubli Dharward Urban
Development Authority Vs. State of Karnataka, supra:
8
“18. It is also not in dispute that the conversion
granted by the Deputy Commissioner as long back
as 2.7.1965 from agriculture to industrial purpose
on payment of Rs.500/- is not challenged by the
appellant. The said order passed by the Deputy
Commissioner has reached finality. It is also not in
dispute that the very appellant has permitted the
petitioner for the change of land use of 20 acres out
of 81.12 acres in Sy.No.88/P-1 from industrial to
residential purpose under the provisions of
Karnataka Town and Country Planning Act, 1961.
The said order has reached finality. It is also not in
dispute that the properties in question is within the
limits of Corporation, if that is so, in view of the
dictum of the co-ordinate bench of this Court stated
supra, there is no need to obtain permission from
the Deputy Commissioner, which was already
granted as long back as 2.5.1965. The
endorsement issued by the present appellant is
without any basis, as the learned Single judge has
rightly quashed the same…”
The reasoning in the impugned orders is repugnant to both
fact matrix & legal position applicable thereto; thus, they are
vulnerable for challenge.
4. The Tumkur City Corporation has issued an
approved building plan and the building licence dated
24.08.2018 at Annexures-E & F for the construction of a
huge four storey school building (G+3) with the floor area
totally measuring 4127.88 sq.mtrs.; the site on which it is
erected itself measures 6151.05 sq.mtrs.; accordingly a
magnificient building is constructed for the purpose of
9
housing the school only with investment of money running
into crores; the City Corporation has issued ‘Occupancy
Certificate’ dated 29.12.2018 at Annexure-S specifically
certifying that “…building which is constructed for
Educational purpose is certified as Fit for Occupancy”; the
Health Officer of City Corporation has issued ‘No Objection
Certificate’ dated 19.10.2019 at Annexure-R to the effect that
the building is perfectly in order with full facilities for
drinking water, toilets and that the same is fit for school; the
Karnataka State Pollution Control Board has issued a letter
dated 22.01.2020 at Annexure-T to the effect that no
clearance is required from its side.
5. The contention of the answering respondents that
in terms of infrastructure, the petitioner satisfies only 67% of
the requirement, is bit difficult to countenance in the absence
of the material particulars thereof being stated either in the
impugned orders or at least in the Statement of Objections; a
bare statement would not do; this apart, what is lacking in
terms of infrastructure whether touches the centrality of
requirement, is also not forthcoming; be that as it may;
common sense tells that, the available facilities in the school
building in question certainly do not fall short of those
10
obtaining in any Government schools in the locality, as rightly
contended by the learned counsel for the petitioner; after all,
what was lacking could have been pointed out to the
petitioner so that it would have made the same good in a time
bound way; that exercise strangely has not been undertaken;
this court gathers an impression that somehow the powers
that be, are working to ensure that this school shall not come
up, for an indefinite period of time and that the reasons for
the same remaining inscrutable, give scope for assuming
ulterior motives.
6. Way back in 1930, in Interview with Izvestia,
Rabindranath Tagore , had powerfully diagnosed: ‘I n my view
the imposing tower of misery which today rests on the heart of
India has its sole foundation in the absence of education’;
Jean Dreze and Amartya Sen in their treatise “An Uncertain
Glory – INDIA AND ITS CONTRADICTIONS” in Chapter V at
pages 107 to 109 write as under:
“The role of basic education in the process of
development and social progress is very wide and critically
important. First, the capability to read and write and count has
powerful effects on our quality of life; education leads to an
informed life, to communicate with others, and to be generally
11
in touch with what is going on. In a society, particularly in the
modern world, where so much depends on the written medium,
being illiterate is like being imprisoned, and school education
opens a door through which people can escape
incarceration . Second, our economic opportunities and
employment prospects depend greatly on our educational
achievements… Third, illiteracy muffles the political voice of
people and thus contributes directly to their insecurity …
Fourth, basic education can play a major role in tackling public
health problems in general and public health in particular …
Fifth, educational development has often been the prime mover
in bringing about changes in public perceptions of the range
and reach of what can be called human rights … Sixth,
education can also make a difference to the understanding and
use of legal rights… When people are illiterate, their ability to
understand, invoke and use their legal rights can be very
limited… Lack of schooling can directly lead to insecurities…
Seventh,…the schooling of young women can substantially
enhance the voice and power of women in family decisions…
Eighth, even though education is no magic bullet against class
barriers, it can make a big contribution to reduce inequalities
related to the divisions of class and caste… Last but not least,
12
learning and studying can be immensely enjoyable … quite
apart from the long run benefits people receive from it…”
th
7. 86 Amendment to the Constitution has
introduced Article 21A with effect from 12.12.2002 which
reads “ The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such
manner as the State may, by law, determine. ” This provision
is strengthened by adding clause (k) to Article 51A which
enacts that it is a duty of a parent or guardian to provide
opportunities for education to his/her child or ward between
the age of six & fourteen years; the importance of these new
provisions can be understood by the observations of the Apex
Court to the effect that without Article 21A, the other
fundamental rights are rendered meaningless; without
education, a citizen may never come to know of his other
rights; since there is no corresponding constitutional right to
higher education, the fundamental stress has to be on
primary and elementary education, so that a proper
foundation for higher education can be effectively laid vide
BHARTIYA SEWA SAMAJ TRUST vs. YOGESHBHAI AMBALAL
PATEL, (2012) 9 SCC 310;
13
8. It needs to be noted that the Parliament has
enacted the Right to Education Act, 2009 and expanded its
scope by a few amendments inter alia imposing an obligation
even on private schools to admit students from the State
Government quota, subject to certain conditions; this is
because of the fact that the school education in the country
inter alia suffers from the limitation of coverage; there are no
enough number of government/public schools to cater to the
societal need; a corresponding statutory duty is cast on the
private schools to make the fundamental right to free
education at the primary level, meaningful; if the applications
for grant of permission to establish such schools are
mindlessly declined, that would muffle the inner voice of the
aforesaid constitutional amendments that are complimented
by legislative instruments; the first sentence in the first
paragraph of the Writ Petition, reads - “ That the petitioner
Trust has one of its object, is to establish educational
institution and provide educational facilities to all sections of
societies on no profit and no loss basis ”; this has not been
controverted by the respondents in their Statement of
Objections; there is some material on record to show that the
petitioner-Trust has been running several educational
14
institutions; the version of the answering respondents that
the petitioner-Trust is not adhering to Government Orders,
lacks material particulars, to say the least; the school
building in question is completely surrounded by a compound
wall; in cities like Bangalore, several schools and fuel stations
co-exist & function as peaceful neighbours; it is nobody’s case
that precautionary measures cannot be taken to avoid likely
accidents; therefore, the existence of a petrol pump beside it,
is only a feeble ground to deny permission;
9. The above aspects have not factored even in the
penumbra of impugned decision making at the hands of the
answering respondents; they have invoked the provisions of
Rule 4 of Karnataka Educational Institutions (Classification,
Regulation and Prescription of Curricula etc) Rules, 1995 as
amended vide notification dated 08.03.2018, in a pedantic
way like a village priest ritualistically murmuring the hymn
without knowing its inner meaning; the constitutional
guarantee of free-primary-education will not fructify in the
absence of enough number of schools and therefore, the State
action should be facilitative & complimentary to the
establishment of private schools; the authorities need to be
told that there exists a certain difference between a
15
requisition for the grant of permission for founding a school
and an application for the grant of excise license for opening
a wine shop, they being poles asunder; the impugned orders
lack elements of reason & justice; the process by which they
have been made falls short of “fair standards” which a Welfare
State should profess & practice.
In the above circumstances, these Writ Petitions
succeed; a Writ of Certiorari issues invalidating the impugned
nd
orders; the matter is remitted back to the 2 respondent-
DDPI for consideration afresh, in accordance with law and
after providing an opportunity of hearing to all the
stakeholders.
Time for compliance is eight weeks from the date a copy of
this order is produced, subject to the rider that delay if
brooked shall entail the concerned official personally with a
cost of Rs.10,000/- per week payable to the petitioner-Trust;
the time taken by the petitioner-Trust for production of
documents or the like, shall be excluded while computing the
said period of eight weeks.
16
All other contentions of the parties are kept open, the
costs having been reluctantly made easy for the present.
Sd/-
JUDGE
cbc
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ST
DATED THIS THE 21 DAY OF OCTOBER, 2020
BEFORE
THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO. 6058 OF 2020 (EDN-RES)
C/W
WRIT PETITION NO.9554 OF 2020 (END-RES)
IN W.P.NO.6058/2020:
BETWEEN:
R
NEXGEN EDUCATION TRUST(REGD.)
HAVING OFFICE AT NO.320, AYAPPA SOCIETY,
MADHAPUR, HYDERABAD – 81.
MANAGING SRI CHAITANYA TECHNO SCHOOL,
PRESENT PROPERTY ID.NO.103145, 102186
(FORMER SURVEY NO.340/1 OF TUMKUR)
HORPETTE EXTENSION,
BEHIND SHIVA SHANKARI FUELS,
NH-4, KOTHI THOPU,
TUMKUR – 572 102.
REP. BY ITS AUTHORIZED REPRESENTATIVE/
SECRETARY SRI. RAMA RAO PANTHINA.
…PETITIONER
(BY SRI. P.D. SURANA, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY FOR EDUCATION,
DR. AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
PUBLIC EDUCATION DEPARTMENT,
TUMKUR – 572 103.
2
3. DEPUTY SECRETARY,
DEPARTMENT OF EDUCATION,
(PRIMARY & SECONDARY)
DR.AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
…RESPONDENTS
(BY SMT. PRAMODHINI KISHAN, AGA FOR R1 – R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 31.05.2019 ISSUED
BY THE R-2 (DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS), TUMKUR PRODUCED HEREWITH AS
ANNEXURE-G AND REVISION PETITION NO.174/2019
ORDER DATED 03.02.2020 PRODUCED AT ANNEXURE-H
AND MADE BY THE R-3 AND THE DEPUTY SECRETARY,
DEPARTMENT OF EDUCATION (PRIMARY AND SECONDARY)
AS APPELLATE PARTY IN REVISION PETITION NO.174/2019.
IN W.P.NO.9554/2020:
BETWEEN:
NEXGEN EDUCATION TRUST(REGD.)
HAVING OFFICE AT NO.320, AYAPPA SOCIETY,
MADHAPUR, HYDERABAD – 81.
MANAGING SRI CHAITANYA TECHNO SCHOOL,
PRESENT PROPERTY ID.NO.103145, 102186
(FORMER SURVEY NO.340/1 OF TUMKUR)
HORPETTE EXTENSION,
BEHIND SHIVA SHANKARI FUELS,
NH-4, KOTHI THOPU,
TUMKUR – 572 102.
REP. BY ITS AUTHORIZED REPRESENTATIVE/
SECRETARY SRI. RAMA RAO PANTHINA.
…PETITIONER
(BY SRI. P D SURANA, ADVOCATE)
3
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY
PRINCIPAL SECRETARY FOR EDUCATION,
DR. AMBEDKAR VEEDHI,
MULTI-STORIED BUILDING,
BENGALURU – 560 001.
2. DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS,
PUBLIC EDUCATION DEPARTMENT,
TUMKUR – 572 103.
…RESPONDENTS
(BY SRI. PRAMODHINI KISHAN, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT DATED 26.05.2020 ISSUED
BY THE R-2 (DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS), TUMKUR, PRODUCED HEREWITH AS
ANNEXURE-S.
THESE WRIT PETITIONS COMING ON FOR FINAL
DISPOSAL THIS DAY THROUGH VIDEO CONFERENCE, THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner a registered Educational Trust which at the
very first para of the Writ Petition assures “ to provide
educational facilities to all sections of societies on no profit and
no loss basis” is knocking at the doors of Writ Court
essentially grieving against the denial of permission for
4
establishing a School for imparting education at the level of
st th
1 to 8 Std in English medium, vide Endorsement dated
nd
31.05.2019 issued by the 2 respondent-DDPI at Annexure-
G, it’s Revision Petition No.174/2019 challenging the same
having been negatived by the Government vide order dated
3.2.2020 at Annexure-H.
2. After service of notice, the respondents have
entered appearance through the learned Additional
Government Advocate who having filed the Statement of
Objections on 29.9.2020, resists the Writ Petitions making
submission in justification of the impugned orders and the
reasons on which they have been structured.
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant indulgence in the matter for the following reasons:
(a) The substantive ground for denying permission for
establishing the school is that, the petitioner-Trust has not
produced the conversion order of the land in question to
non-agricultural purpose; in other words, the land continues
to be agricultural in nature; this is apparently wrong; this
land having been converted to non-agricultural user
5
(industrial) by the Tumkur District Deputy Commissioner’s
order dated 23.5.1986, now figures in Yellow Zone in the
statutory Revised Master Plan [2031], formulated under the
provisions of Sections 9 & 14 of the Karnataka Town and
Country Planning Act, 1961, a copy of the CDP is at
Annexure-W; in view of a Division Bench decision of this
Court in Special Deputy Commissioner Vs. Bhargavi
Madhavan, ILR 1987 KAR 1260 , there is no requirement of
one more formal conversion order that otherwise was
warranted in terms of Section 95 of the Karnataka Land
Revenue Act, 1964; the same ratio is reiterated by another
Division Bench in W.A.No.100124/2018 between Hubli
Dharwad Urban Development Authority Vs. State and
another, decided on 22.10.2018; therefore, there is a grave
error of law apparent on the face of the impugned orders that
have occasioned a great injustice to the petitioner.
(b) The above apart, the Tumkur Urban Development
Authority constituted under the provisions of the Karnataka
Urban Development Authorities Act, 1987, vide letter dated
20.7.2018 has specifically stated that the land in question
can be used for educational purpose in view of it’s inclusion
in the Approved Comprehensive Development Plan (Revised-
6
II)-2031; the content portion of the said letter, a copy whereof
is at Annexure-D, reads as under:
“
«µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, G¯ÉèÃTvÀ ¤ªÀÄä ªÀÄ£À«AiÀÄ°è vÀĪÀÄPÀÆgÀÄ
vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, vÀĪÀÄPÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§gï 340/1
gÀ eÁVAiÀÄÄ ¨sÀÆ G¥ÀAiÉÆÃUÀªÀ£ÀÄß ºÁUÀÆ ªÀ¸Àw ªÀ®AiÀÄzÀ°è ±ÉÊPÀëtÂPÀ
±Á¯Á GzÉÝñÀPÉÌ CªÀPÁ±À«gÀĪÀ §UÉÎ w½¸ÀĪÀAvÉ PÉÆÃjgÀÄwÛÃj.
¥Àj²Ã°¸À¯ÁV, ¸À°è¹gÀĪÀ ¸ÀªÉð £ÀPÉëAiÀÄ£ÀéAiÀÄ vÀĪÀÄPÀÆgÀÄ
vÁ®ÆèPÀÄ, PÀ¸À¨Á ºÉÆç½, vÀĪÀÄPÀÆgÀÄ UÁæªÀÄzÀ ¸ÀªÉð £ÀA§gï 340/1
gÀ eÁUÉAiÀÄÄ vÀĪÀÄPÀÆgÀÄ £ÀUÀgÀzÀ ¸ÀܽÃAiÀÄ AiÉÆÃd£Á ¥ÀæzÉñÀzÀ
C£ÀĪÉÆâvÀ ªÀĺÁAiÉÆÃd£ÉAiÀÄ (¥ÀjµÀÌøvÀ-11) -2031 gÀAvÉ ªÀ¸Àw
ªÀÄvÀÄÛ PÉgÉ §¥sÀgï GzÉÝñÀPÉÌ PÁ¬ÄÝj¸À¯ÁUÀÄvÀÛzÉ. ªÀ®AiÀÄ
¤AiÀĪÀiÁªÀ½UÀ¼À£ÀéAiÀÄ ªÀ¸Àw ªÀ®AiÀÄzÀ°è ¥Áæ¢üPÁgÀ¢AzÀ «±ÉõÀ
¸ÀAzÀ¨sÀðzÀ°è C£ÀĪÀÄw¸À§ºÀÄzÁzÀ ±ÉÊPÀëtÂPÀ GzÉÝñÀPÉÌ (¥ÉæöʪÀÄj
±Á¯ÉªÀgÉUÉ) CªÀPÁ±À«gÀÄvÀÛzÉ JA§ «µÀAiÀĪÀ£ÀÄß vÀªÀÄUÉ F ªÀÄÆ®PÀ
w½¸À¯ÁVzÉ.”
The interpretation placed by the learned AGA on the text of
this letter that it only indicates conversion potential of the
land and not the conversion as such to educational purpose,
is bit difficult to countenance; the words used in official
correspondence cannot be interpreted by employing the rules
applicable to statutory construction; even otherwise, it was
open to the answering respondent to solicit from the
concerned authority any clarification in this regard; however,
such a positive approach was not adopted and nowadays
same cannot be expected from the officialdom, is the heart
burn of the citizens.
7
(c) The respondents in their Statement of Objections
seek to justify the impugned orders stating that there is non-
compliance of Rule 3(4) of the Karnataka Educational
Institutions (Classification, Regulation and Prescription of
Curricula etc) (Amendment) Rules, 2018; the said provision
reads as under:
“Every private body of persons desiring to establish
and maintain an educational institution imparting
pre-primary, secondary and higher secondary
education or any part thereof shall own or have on
lease for a minimum period of thirty years following
minimum contiguous extent of land for the building
and playground of the educational institution with
permission from relevant authorities to use for
educational purposes:”
The land in Sy.No.340/1 is taken by the petitioner-Trust on
lease basis for a period of thirty years vide registered Lease
Deeds both dated 23.8.2018 at Annexures – B & B1, is not in
dispute; the said land having been converted to industrial
purpose way back in May 1986 has no longer retained its
agricultural character; such a converted land can be put to
residential use because of inclusion per se in the
Comprehensive Development Plan; residential purpose
necessarily includes educational ones; it is profitable to
reproduce para 18 of the judgment in Hubli Dharward Urban
Development Authority Vs. State of Karnataka, supra:
8
“18. It is also not in dispute that the conversion
granted by the Deputy Commissioner as long back
as 2.7.1965 from agriculture to industrial purpose
on payment of Rs.500/- is not challenged by the
appellant. The said order passed by the Deputy
Commissioner has reached finality. It is also not in
dispute that the very appellant has permitted the
petitioner for the change of land use of 20 acres out
of 81.12 acres in Sy.No.88/P-1 from industrial to
residential purpose under the provisions of
Karnataka Town and Country Planning Act, 1961.
The said order has reached finality. It is also not in
dispute that the properties in question is within the
limits of Corporation, if that is so, in view of the
dictum of the co-ordinate bench of this Court stated
supra, there is no need to obtain permission from
the Deputy Commissioner, which was already
granted as long back as 2.5.1965. The
endorsement issued by the present appellant is
without any basis, as the learned Single judge has
rightly quashed the same…”
The reasoning in the impugned orders is repugnant to both
fact matrix & legal position applicable thereto; thus, they are
vulnerable for challenge.
4. The Tumkur City Corporation has issued an
approved building plan and the building licence dated
24.08.2018 at Annexures-E & F for the construction of a
huge four storey school building (G+3) with the floor area
totally measuring 4127.88 sq.mtrs.; the site on which it is
erected itself measures 6151.05 sq.mtrs.; accordingly a
magnificient building is constructed for the purpose of
9
housing the school only with investment of money running
into crores; the City Corporation has issued ‘Occupancy
Certificate’ dated 29.12.2018 at Annexure-S specifically
certifying that “…building which is constructed for
Educational purpose is certified as Fit for Occupancy”; the
Health Officer of City Corporation has issued ‘No Objection
Certificate’ dated 19.10.2019 at Annexure-R to the effect that
the building is perfectly in order with full facilities for
drinking water, toilets and that the same is fit for school; the
Karnataka State Pollution Control Board has issued a letter
dated 22.01.2020 at Annexure-T to the effect that no
clearance is required from its side.
5. The contention of the answering respondents that
in terms of infrastructure, the petitioner satisfies only 67% of
the requirement, is bit difficult to countenance in the absence
of the material particulars thereof being stated either in the
impugned orders or at least in the Statement of Objections; a
bare statement would not do; this apart, what is lacking in
terms of infrastructure whether touches the centrality of
requirement, is also not forthcoming; be that as it may;
common sense tells that, the available facilities in the school
building in question certainly do not fall short of those
10
obtaining in any Government schools in the locality, as rightly
contended by the learned counsel for the petitioner; after all,
what was lacking could have been pointed out to the
petitioner so that it would have made the same good in a time
bound way; that exercise strangely has not been undertaken;
this court gathers an impression that somehow the powers
that be, are working to ensure that this school shall not come
up, for an indefinite period of time and that the reasons for
the same remaining inscrutable, give scope for assuming
ulterior motives.
6. Way back in 1930, in Interview with Izvestia,
Rabindranath Tagore , had powerfully diagnosed: ‘I n my view
the imposing tower of misery which today rests on the heart of
India has its sole foundation in the absence of education’;
Jean Dreze and Amartya Sen in their treatise “An Uncertain
Glory – INDIA AND ITS CONTRADICTIONS” in Chapter V at
pages 107 to 109 write as under:
“The role of basic education in the process of
development and social progress is very wide and critically
important. First, the capability to read and write and count has
powerful effects on our quality of life; education leads to an
informed life, to communicate with others, and to be generally
11
in touch with what is going on. In a society, particularly in the
modern world, where so much depends on the written medium,
being illiterate is like being imprisoned, and school education
opens a door through which people can escape
incarceration . Second, our economic opportunities and
employment prospects depend greatly on our educational
achievements… Third, illiteracy muffles the political voice of
people and thus contributes directly to their insecurity …
Fourth, basic education can play a major role in tackling public
health problems in general and public health in particular …
Fifth, educational development has often been the prime mover
in bringing about changes in public perceptions of the range
and reach of what can be called human rights … Sixth,
education can also make a difference to the understanding and
use of legal rights… When people are illiterate, their ability to
understand, invoke and use their legal rights can be very
limited… Lack of schooling can directly lead to insecurities…
Seventh,…the schooling of young women can substantially
enhance the voice and power of women in family decisions…
Eighth, even though education is no magic bullet against class
barriers, it can make a big contribution to reduce inequalities
related to the divisions of class and caste… Last but not least,
12
learning and studying can be immensely enjoyable … quite
apart from the long run benefits people receive from it…”
th
7. 86 Amendment to the Constitution has
introduced Article 21A with effect from 12.12.2002 which
reads “ The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such
manner as the State may, by law, determine. ” This provision
is strengthened by adding clause (k) to Article 51A which
enacts that it is a duty of a parent or guardian to provide
opportunities for education to his/her child or ward between
the age of six & fourteen years; the importance of these new
provisions can be understood by the observations of the Apex
Court to the effect that without Article 21A, the other
fundamental rights are rendered meaningless; without
education, a citizen may never come to know of his other
rights; since there is no corresponding constitutional right to
higher education, the fundamental stress has to be on
primary and elementary education, so that a proper
foundation for higher education can be effectively laid vide
BHARTIYA SEWA SAMAJ TRUST vs. YOGESHBHAI AMBALAL
PATEL, (2012) 9 SCC 310;
13
8. It needs to be noted that the Parliament has
enacted the Right to Education Act, 2009 and expanded its
scope by a few amendments inter alia imposing an obligation
even on private schools to admit students from the State
Government quota, subject to certain conditions; this is
because of the fact that the school education in the country
inter alia suffers from the limitation of coverage; there are no
enough number of government/public schools to cater to the
societal need; a corresponding statutory duty is cast on the
private schools to make the fundamental right to free
education at the primary level, meaningful; if the applications
for grant of permission to establish such schools are
mindlessly declined, that would muffle the inner voice of the
aforesaid constitutional amendments that are complimented
by legislative instruments; the first sentence in the first
paragraph of the Writ Petition, reads - “ That the petitioner
Trust has one of its object, is to establish educational
institution and provide educational facilities to all sections of
societies on no profit and no loss basis ”; this has not been
controverted by the respondents in their Statement of
Objections; there is some material on record to show that the
petitioner-Trust has been running several educational
14
institutions; the version of the answering respondents that
the petitioner-Trust is not adhering to Government Orders,
lacks material particulars, to say the least; the school
building in question is completely surrounded by a compound
wall; in cities like Bangalore, several schools and fuel stations
co-exist & function as peaceful neighbours; it is nobody’s case
that precautionary measures cannot be taken to avoid likely
accidents; therefore, the existence of a petrol pump beside it,
is only a feeble ground to deny permission;
9. The above aspects have not factored even in the
penumbra of impugned decision making at the hands of the
answering respondents; they have invoked the provisions of
Rule 4 of Karnataka Educational Institutions (Classification,
Regulation and Prescription of Curricula etc) Rules, 1995 as
amended vide notification dated 08.03.2018, in a pedantic
way like a village priest ritualistically murmuring the hymn
without knowing its inner meaning; the constitutional
guarantee of free-primary-education will not fructify in the
absence of enough number of schools and therefore, the State
action should be facilitative & complimentary to the
establishment of private schools; the authorities need to be
told that there exists a certain difference between a
15
requisition for the grant of permission for founding a school
and an application for the grant of excise license for opening
a wine shop, they being poles asunder; the impugned orders
lack elements of reason & justice; the process by which they
have been made falls short of “fair standards” which a Welfare
State should profess & practice.
In the above circumstances, these Writ Petitions
succeed; a Writ of Certiorari issues invalidating the impugned
nd
orders; the matter is remitted back to the 2 respondent-
DDPI for consideration afresh, in accordance with law and
after providing an opportunity of hearing to all the
stakeholders.
Time for compliance is eight weeks from the date a copy of
this order is produced, subject to the rider that delay if
brooked shall entail the concerned official personally with a
cost of Rs.10,000/- per week payable to the petitioner-Trust;
the time taken by the petitioner-Trust for production of
documents or the like, shall be excluded while computing the
said period of eight weeks.
16
All other contentions of the parties are kept open, the
costs having been reluctantly made easy for the present.
Sd/-
JUDGE
cbc