Delhi High Court
Parents Of Mirambika Free ... vs Govt. Of Nct Of Delhi & Ors on 7 July, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th July, 2016
+ W.P.(C) No.4535/2015 & CMs No.8221/2015 (for stay), 9003/2015
(u/O 39 R-4 CPC), 9089/2015 (for directions), 9773/2015 &
9774/2015 (both u/O I R-10 CPC), 12876/2015 (for intervention) &
CM No.15848/2015 (for directions)
SURAJIT NUNDY & ORS. ..... Petitioners
Through: Mr. Gopal Sankaranarayanan, Mr.
Satyajit Sarna and Mr. Anirudh Soman,
Advs.
Versus
MANAGEMENT OF MIRAMBIKA FREE PROGRESS SCHOOL
& ORS. ..... Respondents
Through: Mr. Sunil Gupta, Sr. Adv. with Mr.
Sushil Dutt Salwan, Adv. for R-1, 2 &
Mr. Peeyoosh Kalra, ASC for
GNCTD/DoE.
Mr. Amit Bhargava applicant in person
in CM No.12876/2015.
AND
+ W.P.(C) No.6790/2015 & CM No.12390/2015 (for stay)
PARENTS OF MIRAMBIKA FREE PROGRESS SCHOOL
& ORS. ..... Petitioners
Through: Ms. Kanika Agnihotri and Ms. Juhi
Chawla, Advs.
Versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Sunil Gupta, Sr. Adv. with Mr.
Sushil Dutt Salwan, Adv. for R-4&5.
Mr. Peeyoosh Kalra, ASC for
GNCTD/DoE.
Mr. Anil Soni and Mr. Naginder
Benipal, Advs. for AICTE.
AND
+ W.P.(C) No.7405/2015 & CM No.13654/2015 (for stay)
SARVODAYA CO-OPERATIVE HOUSING
SOCIETY LTD. & ORS ..... Petitioners
Through: None.
Versus
SOUTH DELHI MUNICIPAL CORPORATION
& ORS .... Respondents
Through: Mr. Sushil Dutt Salwan and Mr.
Tanmaya Mehta, Advs. for School.
Ms. Neha Rastogi, Adv. for R-3,5&6.
Mr. Anil Soni and Mr. Naginder
Benipal, Advs. for AICTE.
Mr. Sanjeev Sabharwal, Adv. for
DDA.
Mr. Shakti Singh, Pairvi Officer,
Traffic Hqrs.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 3rd July, 2015, after commencing hearing in W.P.(C) No.4535/2015
which alone was before this Court till then, the following order was passed:-
"1. The nine petitioners are the parents of seven
children out of the total of 149 studying in respondent
no.2 The Mirambika Free Progress School at Sri
Aurobindo Ashram, Sri Aurobindo Marg, New Delhi
established by the respondent no.4 Sri Aurobindo
Education Society. They have filed this petition seeking
quashing of the decision of the respondent no.1
Management of the said school and the respondents
no.2&4, of shifting of the said school from where it has
existed for 25 years. Order, prohibiting the school from
so shifting and prohibiting the use of the property where
the school was earlier functioning for establishing a
college, is also sought.
2. Notice of the petition was issued and vide order
dated 6th May, 2015, ex parte so far as the respondents
no.1,2&4 are concerned, inspection by the respondent
no.3 Directorate of Education (DoE) of the premises to
which the school was shifted was directed and status
quo was directed to be maintained.
3. The counsel for the petitioners has today stated
that the school has since been shifted to yet another
location and the inspection carried out by the
respondent no.3 DoE in pursuance to order dated 6 th
May, 2015 was of the premises where the school was
earlier shifted.
4. The premises in which the school earlier existed,
the premises to which the school was first shifted as well
as the premises to which the school has now been shifted
are all within the campus of what is generally known as
Aurobindo Ashram at Aurobindo Marg. The counsels,
have shown the three premises on Google Map.
5. Though the senior counsel for the school has
raised preliminary objection qua the maintainability
of the writ petition but all the counsels have been
advised that the matter should be dealt with in a non-
confrontationist manner, with the sole objective of the
welfare of the children studying in the school.
6. After some hearing, what has emerged is that
under the provisions of the Delhi School Education Act,
1973 (School Act) and the Delhi School Education
Rules, neither any permission is required by a school as
long as it shifts its premises within the same locality nor
can anyone be said to have any right, enforceable in
writ jurisdiction, to stop the school from so shifting. The
counsel for the petitioners has of course sought to raise
the ground of „promissory estoppel‟ but upon enquiry
whether the same can be invoked against a school or a
society, no clarity has emerged. Moreover, in the
absence of any statutory bar to shifting within the
locality, the contractual or promissory estoppel rights
even if any of parents of the children studying in the
school, against the school, cannot be the subject of writ
jurisdiction and have to be enforced in a suit. At least
the High Court of Bombay in Sheela Sachidananda
Damle Vs. Dy. Director of Education
MANU/MH/0535/1981 and the Orissa High Court in
Basudev Sarangi Vs. Inspector of Schools
MANU/OR/0075/1971 and certain observations of the
Supreme Court in Kulchinder Singh Vs. Hardayal
Singh Brar (1976) 3 SCC 680 suggest so. The said
question is however kept open, lest this litigation is not
resolved in the manner intended by this Court.
7. What has further emerged is that the only anxiety
which the petitioners can have is of the premises in
which the school is now shifted, satisfying the conditions
of recognition laid down in the School Act and in the
Schedule to the Right of Children to Free and
Compulsory Education Act, 2009.
8. In this regard, rather than going by the rival
contentions, it is deemed appropriate to have the said
premises inspected by the respondent no.3 DoE.
9. There is no site plan on record demarcating the
premises in which the school is now housed from the
remaining campus. The senior counsel for the school
states that a site plan shall be so handed over to the
counsel for the respondent no.3 DoE by 5th July, 2015. It
is clarified that the said site plan should demarcate the
entry point to the school from the public street as well as
the passage within the campus leading up to the school
as well as the portions of the campus to which the
children studying in the school would have access.
Copies of the site plan be also brought to the Court on
the next date of hearing.
10. The said inspection be positively carried out on
or before 10th July, 2015.
11. The counsel for the respondent no.3 DoE has
informed that after earlier order dated 6th May, 2015
was passed, the petitioners no.1&8 had reached the
office of the Deputy Director (Education) South and
meted out various threats. He has further informed that
when the inspecting team visited the premises, about 50
persons from the neighbouring locality collected at site
and were wanting to interfere with the inspection.
12. The counsel for the petitioners though does not
dispute that the petitioners no.1&8 had indeed visited
the office of the Deputy Director but denies the conduct
attributed by the respondent no.3 DoE to them. He also
denies that at the time of inspection any persons
collected were at the behest of any of the petitioners.
13. In this regard it may be noticed that CM
No.9773/2015 has been filed by the 58 parents of 76
other children studying in the school, supporting the
school. The counsel for the petitioners interjects at this
stage and states that of the 58 parents 08 parents have
withdrawn from the application. The counsel for the
applicants confirms receipt of letters from 08 parents.
14. It is directed that neither the petitioners, nor the
school or any other person shall interfere with the
performance by the respondent no.3 DoE and its
officials of their functions or in the inspection to be
carried out by them and strict action shall be taken
against anyone reported to have acted otherwise.
15. At the instance of the counsel for the petitioners it
is further directed that the respondent no.3 DoE in its
Report of the inspection should specifically cover the
aspect of the existence of a Bank, Kitchen, Maitri Store
alleged to be existing in the same premises as well as
the fire safety issues in the building from where the
school is now being run.
16. The report be placed before this Court on or
before 17th July, 2015 with copies to all the counsels.
17. List on 17th July, 2015."
2. Thereafter W.P.(C) No.6790/2015 was filed by 36 persons also
claiming to be parents of the children studying in the subject school (i)
claiming the relief of restoration of the school to its old building with all the
facilities and ecosystem - as were prevailing on 13th April, 2015; (ii)
impugning the approval granted vide letter dated 30th April, 2015 by All India
Council for Technical Education (AICTE) (impleaded as respondent no.3 in
the said petition) for opening an engineering college at the place where the
school earlier existed; and, (iii) seeking an inquiry into the circumstances
which led to the said approval. The said petition came up before this Court
first on 17th July, 2015 and whereafter common orders have been passed in
both petitions.
3. Yet another petition, being W.P.(C) No.7405/2015 has been filed by
Sarvodaya Co-operative Housing Society Ltd. which had developed the
residential colony of Sarvodaya Enclave and by the Sarvodaya Enclave
Residents Welfare Association (Regd.) (i) also impugning the approval
granted by AICTE for opening an engineering college in the premises of Sri
Aurobindo Education Society (SAES); (ii) seeking to prohibit Delhi
Development Authority (DDA) from granting any permission to the SAES for
opening of an engineering college; and, (iii) to stop all commercial activities
in the Ashram premises and certain ancillary reliefs and which petition came
up before this Court first on 5th August, 2015 and w.e.f. 25th August, 2015 is
being taken up along with the two aforesaid petitions but has no relevance to
the extent to which this judgment is confined and is hence not being dealt
with in this judgment.
4. The Directorate of Education (DoE), in pursuance to the order dated 3rd
July, 2015 supra, submitted a report and with respect whereto, on 17 th July,
2015, the following order was passed:-
"1. The respondent no.3 Directorate of Education
(DoE) in W.P.(C) No.4535/2015 has filed the Report of
Inspection ordered on the previous date. The counsel for
the respondent no.3 DoE states that in the inspection,
the building to which the school has been shifted has
been found to be largely compliant of the requirements
save for, (i) the existence of the Bank - it is stated that
though a Bank can exist but only with the permission of
the respondent no.3 DoE and with the activity only of
collection of fee and disbursement of salaries of the
employees; (ii) the Kitchen is not permissible - however
it is the stand of the School that the Kitchen is not used
during school hours and the said objection is being
considered; and, (iii) the Maitri Store also cannot exist.
2. The senior counsel for the School states that the
School will immediately interact with the respondent
no.3 DoE with respect to the aforesaid three objections.
3. The Report in that regard be produced on the
next date of hearing.
4. The counsel for the petitioner has argued that the
report of the respondent no.3 DoE is biased. He is at
liberty to file objections thereto with the respondent no.3
DoE so that the response of respondent no.3 DoE
thereto can be before the Court on the next date.
However, the counsel for the petitioner insists that he
will file objections before this Court. As and when the
same is filed, the response of the respondent no.3 DoE
thereto will be sought."
5. On 30th July, 2015 the counsel for the DoE clarified that the stand of
the School was that the kitchen, to which objection was taken, was a
temporary one as a new kitchen was to be constructed after permission from
the concerned municipality.
6. The counsels for the petitioners in the two petitions were heard on 30th
July, 2015, 3rd August, 2015, 25th August, 2015, 3rd September, 2015, 10th
September, 2015 and 17th September, 2015. Thereafter the senior counsel for
the School was heard on 6th October, 2015, 13th October, 2015 and 4th
November, 2015. At that stage CM No.27382/2015 in W.P.(C) No.4535/2015
was filed claiming, besides the same relief as claimed in the application
already under consideration, also a direction to the School to invite
applications for the new Academic Session 2016-17. The said application
came up before this Court on 20th November, 2015 when being of the view
that the School is bound to make admissions and if does not, becomes liable
for action, it was enquired whether the School has given a notice of closure to
the DoE. Recording the statement of the School and DoE that no such notice
of closure had been given, the application was disposed of. The senior counsel
for the School resumed his arguments on 1st December, 2015 and which
continued on 2nd December, 2015. On 21st December, 2015, it was informed
that the School though had earlier kept the admission of fresh batch of
students for the ensuing year in abeyance but had on re-consideration decided
to go ahead with the admission. On 5th January, 2016, besides the senior
counsel for the School, the counsel for DoE was also heard and in the order of
that date the following was recorded:-
"4. During the arguments of the senior counsel for
the respondent School, the meaning of the word
„locality‟ in Rule 55 of the Delhi School Education
Rules, 1973 was enquired. It is enquired, whether
„locality‟ means the situs of the school or the
area/colony/district in which the school is located. It is
inter alia his contention that the counsels for the
petitioners during their arguments, have proceeded on
the premise that „locality‟ means the area/colony/district
and have not argued that shifting of the school to
adjacent premises attracts Rule 55; they have rather
argued that since there is no provision in the Rules for
shifting within the locality, the Court should fill the
vacuum and make provision therefor. He has otherwise
addressed on the merits of the said aspect.
5. It has also been enquired from counsel for
GNCTD whether he has in the affidavit filed, put forth
the stand of GNCTD on this aspect. He also states that
since the petitioners have not raised the said aspect, the
occasion therefor did not arise. The counsel for the
petitioners in W.P.(C) No.6790/2015 controverts and
states that there is a pleading to the said effect.
6. Be that as it may, it is the case of the counsel for
the respondent GNCTD that the word „locality‟ does not
refer to situs of the school but to a larger area within
which the school is situated and the term „locality‟ has
to be interpreted as an area, change within which does
not affect the children studying in the school or the
education in the school."
The counsels for the petitioners were heard in rejoinder on 13th January,
2016. Thereafter on 20th January, 2016 and 2nd February, 2016, the intervener
Mr. Amit Bhargava who has filed CM No.12876/2015 and the counsels for
the petitioners and the counsels for the School were heard further and
judgment reserved.
7. Though the controversy subject matter of the petition is evident from
the orders re-produced hereinabove but still for the sake of clarity, the facts
and grounds on which the petitioners have approached this Court may be set-
out hereinbelow:-
(i) that the subject School is an ‗alternate school' which prepares the
younger generation for a higher spiritual and harmonious life
through the guidance of the enlightened and gentle teachers who
are called ‗Diyas';
(ii) SAES, the management and principal of the School and the DoE
are discharging public function;
(iii) Mirambika Research Centre for Integral Education and Human
Values (Centre) is a centre focusing on Integral Education based
on philosophy of Sri Aurobindo and the Mother; the said Centre
has a children's wing in the form of subject School which is a
Free Progress School recognised by DoE having classes for
children from age group 4 to 15 years;
(iv) that the subject School was set-up in the year 1981 and was
located in a landmark building on grounds adjacent to the
Aurobindo Ashram and Mothers International School;
(v) the National Focus Group On Teacher Education For Curriculum
Renewal by NCERT has reported that Mirambika Teacher
Training Program is one of the six innovations in Indian school
education system post independence;
(vi) SAES on 18th February, 1965 applied to the DDA for allotment
of land at concessional rates for establishing Aurobindo College;
(vii) the Deputy Housing Commissioner, Delhi Administration vide
letter dated 8th March, 1967 approved allotment of land
measuring 9.40 acres near the existing Aurobindo Ashram for
construction of a college building, hostel building and staff
quarters;
(viii) SAES clarified to DDA that the 9.84 acres of land ultimately
allotted was meant for the Centre and there was no proposal for
construction of a regular traditional college but to construct a
building for a Research Wing, Teachers Training Wing, Children
Wing (Nursery Section), Library and Auditorium;
(ix) DDA vide office note dated 28th August, 1984 observed that in
case any action was required for the change of lease, the same
may be taken;
(x) ultimately a perpetual lease dated 9th November,1984 for five
acres of land was granted to the Society and Clause 4 thereof
specifies the use of the land for college purpose; the lease of the
balance 4.84 acre of land was granted on 13th November, 1984;
(xi) since the completion of the building in the year 1991, the School
has been functioning continuously from the premises and was ‗in
the meantime' recognised by DoE;
(xii) that the management and Principal of the School, on the pretext
of taking the students for an annual picnic on 20th March, 2015,
shifted the School from where it was earlier housed to a
makeshift premises severely jeopardising their safety, health,
hygiene and the security of the School and in violation of the
Delhi School Education Act, 1973 (School Act) and the Delhi
School Education Rules, 1973 (School Rules);
(xiii) that the School could not have been so shifted without the
permission of DoE;
(xiv) that the motive in shifting the School is commercial exploitation
of the land for establishing an engineering college;
(xv) that the School is not an ordinary school but an extraordinary
concept;
(xvi) the School is an autonomous School under Rule 17 of the School
Rules; and,
(xvii) that the open spaces were an integral part of the School and the
premises of the School offered a unique learning experience to
the children.
8. The counsels for the petitioners argued:-
(i) That Mr. Anil Kumar Sharma, Chief Legal Adviser of the DDA
in his file noting dated 4th June, 2015 has opined that the property
of the School goes with the School and that though the lease
granted of the land was for college purposes but running of the
School for more than two decades showed that the SAES always
intended to run the School from the present location and that the
proposed engineering college could not be set-up on the said
land; that thus SAES had no right to interfere with the property
of the School and that the reason, of School having been
removed from its earlier premises for the reason of the lease of
the land underneath being for college purpose, is not available to
SAES and/or the School;
(ii) DDA in fact has issued a notice dated 23rd July, 2015 to SAES to
show cause as to why the lease should not be determined for
having obtained approval of AICTE for setting of an unaided
private engineering college on the subject land;
(iii) that besides the aforesaid 9.84 acres of leasehold land, SAES has
its own land on over 9.28 acres of which Mothers International
School is being run and on the remaining 9.41 acres of which
Aurobindo Ashram is located;
(iv) that there is no visible demarcation of the leased land from own
land of SAES and the two are overlapping;
(v) that the School which was earlier located over leased land has
now been shifted to a building in the aforesaid 9.41 acres of land
of Aurobindo Ashram;
(vi) that as per Rule 50(vii) of the School Rules ―no private school
shall be recognised, or continued to be recognised.......
unless.....the building or other structure in which the school is
carried on, its surroundings, furniture and equipment are
adequate and suitable for an educational institution and, where
there is any business premises in any part of the building in
which such school is run, the portion in which the school is run is
adequately separated from such business premises‖ indicating
that the recognition by the DoE of a school is relatable to the
building, furniture and equipment and hence the question of
shifting of the School without the permission of DoE does not
arise; reliance was placed on Action Group Res. In Envrn. &
Education Development Society Vs. Sakky Bai (1998) 9 SCC
685 where, on an examination of the provisions of Andhra
Pradesh Education Act, 1982 and the Rules framed thereunder, it
was held that no school could be shifted from one building to the
other without the permission of the competent authority for such
shifting and a direction for the school to be continued to be
located in the original building until it was shifted in accordance
with law was issued.
(vii) attention was invited to the Rule 51 of the School Rules listing
the facilities to be provided by a school seeking recognition and
to Rule 55 providing as under:-
55. Lapse of recognition in other cases (1) If a
recognised school ceases to function or is
shifted to a different locality or is transferred to
a different trust, society, individual or a group
of individuals without the previous approval of
the appropriate authority, its recognition shall
lapse on such ceaser, shifting or transfer, as the
case may be, and it shall, for the purpose of
future recognition, be treated, as a new school.
(2) Where one or more of the conditions of
recognition, specified in sub-section (1) of
section 4 or in rule 50, are not complied with
by any recognised school, the appropriate
authority shall, by a written notice, draw the
attention of the school to such non-compliance;
and, if within sixty days from the date of service
of such notice, any such condition for the
recognition is not complied with, the
recognition granted to such school shall, on the
expiry of the said period of sixty days, stand
lapsed."
(viii) that the premises to which the School has now been shifted are
not at all up to the mark and nowhere as good as the premises in
which the School was earlier housed and the petitioners do not
want their children to study in the premises where the School has
now been housed; attention was also invited to Section 19 of the
Right of Children to Free and Compulsory Education Act, 2009
(RTE Act) providing the norms and standards for the School and
to the norms and standards laid down in Schedules thereto;
(ix) attention was invited to judgment dated 13th April, 2009 of the
Supreme Court in Avinash Mehrotra Vs. Union of India (2009)
6 SCC 398 being a Public Interest Litigation in the wake of a fire
at a Lord Krishna Middle School in District Kumbakonam in the
city of Madras, Tamil Nadu where directions were issued that
before grant of recognition, the authority should ensure that the
building is safe and secure;
(x) that the temporary kitchen reported by the DoE is a fire hazard;
(xi) that in the same premises where the School is now housed, the
office of Maitri and NGO and a Bank is also situated, again
jeopardising the safety of the children of the petitioners;
(xii) that the user prescribed of the land in the lease deed as a college
is to be read in the context of the representation aforesaid of
SAES and the response of DDA thereto;
(xiii) reliance was placed on paras 46, 48, 50 & 56 of Delhi
Development Authority Vs. Nehru Place Hotels Ltd AIR 1984
Delhi 61 to contend that the intention of DDA in granting the
lease and of SAES in taking the lease as to the purpose thereof is
to be gauged from the aforesaid antecedent documents and
surrounding circumstances; that the School was a part of the
Teachers Training wing of the Centre (however on enquiry
whether the said Teachers Training Wing was recognised under
the National Council for Teacher Education (NCTE) Act, 1993,
the answer was in the negative and it was informed that the
Teachers Training Wing was closed as far back as in the year
1998);
(xiv) that the ambiguity if any as to the purpose for grant of lease is to
be relieved in favour of the grantee because of the lease being a
standard form lease;
(attention of the counsel was however invited to clauses of the
perpetual lease deed of the land providing that the lessee i.e. the
SAES would construct thereon a ‗college building' and that
SAES shall not without written consent of the President of India
carry on or permit to be carried on such land or any building
constructed thereon any purpose other than of ‗college building'
and yet further providing that if SAES is desirous of using the
said land or building thereon for the purpose other than that of
‗college building' the President of India may allow such change
on such terms and conditions including payment of additional
premium and it was enquired that if the intention had been so,
would not the said clauses have been deleted in the perpetual
lease deed).
(xv) that the right of students and their parents to choose could not be
so defeated;
(xvi) Article 21 prevails over Article 19 of the Constitution of India;
(xvii) attention was invited to:-
(a) Tamil Nadu Tamil and English Schools Association Vs.
The State of Tamil Nadu MANU/TN/0128/2000 (FB)
where in the context of challenge to the orders of the
Government of the State of Tamil Nadu that all nursery
and elementary schools shall teach at least two of the three
subjects through the medium of Tamil apart from teaching
Tamil as a subject inter alia on the ground that the parents
have a right to choose the kind of education that will be
given to their children and right to education being a
fundamental right, it was observed/held (i) that though
reasonable or legitimate expectation of a citizen may not
by itself be a distinct and enforceable right but failure to
consider and give due weight to it may render the decision
arbitrary; (ii) a case of legitimate expectation would arise
when a body, by representation or by past practice,
aroused expectation which it would be within its power to
fulfill, the schools were justified in claiming that on the
principles of legitimate expectation, the impugned action
which was in any case irrational, arbitrary and
unreasonable, was liable to be quashed; (iii) that as per
Article 26(3), parents have a right to choose the kind of
education that shall be given to their children; and, (iv) the
Court is entitled to investigate the action of the local
authority with a view to seeing whether or not they have
taken into account matters which they ought not to have
taken into account, or they refused to take into account or
neglected to take into account matters which they ought to
have taken into account.
(b) extracts of the book titled ―Life at Mirambika - A Free
Progress School‖ by Anjum Sibia to demonstrate the kind
of infrastructure, facilities and amenities which were
available in the premises in which the School was earlier
housed; pictorial representations and bubble charts
showing the layout of the School were handed over;
(c) Anil Vs. The State of Maharashtra
MANU/MH/1069/2010 where in the context of a
challenge by the parents of the students studying in the
school to shifting of the school to another location in the
same district it was held that the State Government is
expected to keep in view the provisions of Articles 21-A
and 51-A of the Constitution of India besides of the RTE
Act while dealing with the proposal for
establishing/starting a new school or for shifting the
established school and the convenience and need of the
children for whom the school is being established/ shifted
should be paramount consideration while dealing with the
said proposals; and,
(d) Forum For Promotion of Quality Education for All Vs.
Lt. Governor of Delhi 216 (2015) DLT 80 where in the
context of challenge to the autonomy of a private unaided
school to admit students it was observed that the power to
choose a school has to primarily vest with the parents and
not in the administration and that children should have the
option to go to a neighbourhood school but their choice
cannot be restricted to a school situated in their locality
only.
(xviii) that the petitioners admitted their children to the subject School
on the basis of its premises, environment, facilities and amenities
provided and the School cannot unilaterally alter the same and
since there is no law, rule and regulation in this regard, the Court
should intervene;
(xix) that there was no discussion whatsoever to shift the School and
the school was shifted surreptitiously;
(xx) that the children studying in the School were taken for annual
picnic on 20th March, 2015 because of AICTE inspection of the
premises scheduled on that date;
(xxi) that from a reading of Clauses (ii), (vii), (viii) & (x) of Rule 50
of the School Rules it is clear that the building in which the
School is housed is a part of the School;
(xxii) attention was invited to the definition in Black's Law Dictionary,
1990 Edition of ―School‖ as an institution or place for instruction
or education and in P. Ramanatha Aiyar, The Law Lexicon, 3rd
Edition of ―Institution‖ as an establishment or a building in
which the business of the society is carried on and it was argued
that thus the place or the building where the School is housed is
an integral part of the School and since right to receive education
has been held to be a fundamental right, the said right has to be
in relation to a particular building;
(xxiii) photographs of the building where the School is now housed
were handed over and therefrom it was urged that the said
building does not fulfill the requirements of Rule 50 of the
School Rules and is very inferior to the building/premises in
which the School was earlier housed;
(xxiv) attention was invited to the download taken on 8 th November,
2015 from the DDA's website to contend that there is a
difference in allotment of land for engineering college/higher
professional institutes and for schools;
(xxv) attention was also invited to the report of the inspection carried
out by DoE to contend that the building in which the school is
now housed is not fit for a school;
(xxvi) attention was invited to the letter dated 7 th January, 1992 of the
DoE regarding upgradation of the School from Middle to
Secondary level and it was argued that the present building does
not fulfill the criterias as laid down therein;
(xxvii) reference was made to Ramesh Ahluwalia Vs. State of Punjab
(2012) 12 SCC 331 to contend that even a purely private body
over internal affairs whereof the State has no control would be
amenable to the jurisdiction of the High Court under Article 226
of the Constitution if such a body is performing public functions
and it was contended that since imparting of education which the
school is performing is a public function, this writ is
maintainable;
(xxviii) attention was invited to the judgment dated 21st July, 2015 of
the Division Bench of the High Court of Bombay in W.P.
no.5378/2013 titled Jayshree Vijay Mundaware Vs. The
Principle/Head Mistress of Ashoka Universal School,
Chandsi/Wadala, Nashik upholding the maintainability of a writ
petition impugning expulsion/debarment of students from the
school on the ground of misbehaviour/bad behaviour of the
parents of the said students;
(xxix) it was argued that the shifting of the School is in violation of the
principles of natural justice;
(xxx) that the surreptitious manner in which the School was shifted
itself requires this Court to interfere; the judgment of the
Supreme Court in Tata Cellular Vs. Union of India (1994) 6
SCC 651 was generally referred to in this regard;
(xxxi) attention was invited to Clauses 2.87, 3.6, 6.2.4.1, 6.7.2, 7.5.1,
7.6, 7.6.1, 7.6.2, of the Delhi Building Bye-laws, 1983 to
contend that the building where the schools now housed is unsafe
without any occupancy certificate and is incapable of occupation;
attention was also invited to Bye-law 2.54.2 with respect to
educational buildings;
(xxxii) attention was invited to:-
(a) letter dated 6th May, 2011 of the Directorate of Higher
Education, GNCTD to the Guru Gobind Singh
Indraprastha University on the matter of policy guidelines
for issue/revalidation of ‗No Objection Certificate' to
contend that in a school building or complex constructed
on at least 2.5 acres of land situated in a conforming area,
B.Ed courses are allowed to be run;
(b) Food Corporation of India Vs. M/s. Kamdhenu Cattle
Feed Industries (1993) 1 SCC 71 laying down that a bona
fide decision of the public authority reached in a fair
manner would satisfy the requirement of non-arbitrariness
and withstand judicial scrutiny and the doctrine of
legitimate expectation gets assimilated in the rule of law
and operates in our legal system in this manner and to this
extent; and,
(c) Avinash Mehrotra supra on the aspect of fire safety
measures in a school and it is contended that where there
is a mal-administration, there has to be a cure;
(d) Zee Telefilms Ltd. Vs. Union of India (2005) 4 SCC 649
to contend that an entity discharging public function is
amenable to writ jurisdiction;
(e) paras 20 to 30 of Board of Control for Cricket in India
Vs. Cricket Association of Bihar (2015) 3 SCC 251 to
contend that if the selection of teams in game of cricket is
a public function, School Management is certainly
amenable to writ jurisdiction;
(f) judgment dated 23rd July, 2015 of the Supreme Court in
W.P.(C) No.441/2015 titled D.M. Wayanad Institute of
Medical Sciences Vs. Union of India carving out the
difference between Article 32 and Article 226 of the
Constitution;
(g) Sahara India Real Estate Corporation Ltd. Vs. Securities
and Exchange Board of India (2012) 10 SCC 603 and to
Pramati Educational and Cultural Trust Vs. Union of
India (2014) 8 SCC 1 to contend that Article 21 is pre-
eminent in the Constitution and thus the right of the
Management is subordinate to the rights of the children;
(h) Action Group supra and it was contended that Rule 22 of
the Andhra Pradesh School Rules placed an absolute
embargo on shifting of a School;
(i) Delhi Development Authority Vs. Nehru Place Hotels
Ltd. supra to contend that the terms of the lease are not be
strictly construed.
(xxxiii) that providing opportunity of education to children has been
made a fundamental duty of a parent or guardian by addition
with effect from 1st April, 2010 of Clause (k) to under Article
51-A and due effect has to be given thereto;
(xxxiv) that Article 14 confers a right on the petitioners not to be
treated arbitrarily and legitimate expectations is a facet
thereof;
(xxxv) that right to chose, right to express and right to educate are all
facets of Article 19(1)(a);
(xxxvi) Unni Krishnan, J.P. Vs. State of Andhra Pradesh (1993) 1
SCC 645 was overruled in T.M.A. Pai Foundation Vs. State
of Karnataka (2002) 8 SCC 481;
(xxxvii) that Article 21 overrides fundamental rights; attention in this
regard was invited to In Re: Noise Pollution -
Implementation of the Laws for Restricting Use of
Loudspeakers and High Volume Producing Sound Systems
(2005) 5 SCC 733;
(xxxviii) that if a private person discharges public function he / she
must eschew right to business to right to public;
(xxxix) that the petitioners now represent as many as 60 children of
the School;
(xl) attention was invited to Rule 17(4) of the School Rules
providing for review of the work of every autonomous school
every five years and it was contended that if the location is
changed, there will be nothing left to inspect; it was argued
that an autonomous school is a school run by the Lt.
Governor of Delhi;
(xli) attention was invited to letter dated 30th August, 1988 of the
Centre to the DoE seeking recognition for the School and
describing the School as autonomous school and the noting
thereon of a case for establishing a school under Rule 17
having been made out;
(xlii) that the Lt. Governor was kept in dark about the shifting of
the School;
(xliii) that there is no clearance for the premises to which the
School has been shifted to;
(xliv) attention was again invited to the report of the joint
inspection on 17th April, 2015 and it was argued that the
School had been shifted twice in three months, despite the
fact that the land is for Ashram purpose only and no
documents of title thereof also were shown;
(xlv) that the teachers of the School who had joined the School on
the basis of the environment then existing are also
dissatisfied from the decision and action to shift; and,
(xlvi) that a case for taking over the management of the School is
made out.
9. Before the commencement of arguments on behalf of the School I
enquired, whether not the decision of the question, whether any permission
was required by the School from DoE for shifting, was dependent solely on
interpretation of Rule 55 of the School Rules and on the meaning to be given
to the word ―locality‖ therein i.e. whether it means ‗location' or the ‗situs' of
the school or ‗the colony' or ‗the zone' or ‗the area' or ‗the district' within
which the School is ‗located'. It was further enquired that there being a
specific provision in the School Rules qua shifting of the School from one
place to another, how were the other rights on which the counsels for
petitioners addressed relevant inasmuch as if the School was entitled under
the Rules to shift without seeking permission from DoE (which admittedly
has not been sought) then there could be no ‗public wrong' addressable in
jurisdiction under Article 226 and conversely if the School was not entitled
to so shift without prior approval of DoE, then there would definitely be a
statutory violation in such shifting and direction for restoration of the School
to the earlier situs could be issued; though the only consequence of shifting
provided in Rule 55 is, lapsing of recognition but since otherwise the School
Rules in Rule 46 thereof prohibit closing down of a school without prior
approval, shifting and consequent lapsing of recognition cannot be allowed
to be used to defeat Rule 46 prohibiting closure without approval.
10. The response of counsels for petitioners was that the word ―locality‖
in Rule 55 has to be read as ‗location' or ‗situs' and that even if it is not to
be so read it meant that the School Rules are silent on shifting within the
locality and in which case the Court has to step in to fill the vacuum and the
other arguments urged are in support thereof. It was also contended that
Rule 55 has to be interpreted in consonance therewith.
11. The senior counsel for School contended that the entire argument of
petitioners is on the premise that no permission from DoE for the shifting
done was needed and the petitioners have not even urged that shifting is bad
for lack of approval of DoE.
12. The counsel for DoE also contended that since the petitioners have not
urged so, no stand in this regard was taken in the counter affidavit. He also
contended that DoE has never treated or interpreted Rule 55 as requiring
schools to obtain prior approval for shifting within the locality i.e. without
affecting or inconveniencing the children or education. After obtaining
specific instructions in this regard also, the same stand was maintained.
13. It was in the aforesaid context that the order dated 5 th January, 2016
reproduced above was made.
14. Per contra, the senior counsel for the School argued:
(a) that SAES is purely a private body and does not take any
government aid and enjoys absolute autonomy and the School does
not need any permission for shifting from one place to another within
the same locality and owes no public duty in that regard;
(b) that the children attending the School and their parents do not
have any locus standi and cannot be called aggrieved persons in the
matter between SAES and the DDA; reliance in this regard is placed
on Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani (1989) 2 SCC 691,
Federal Bank Ltd. Vs. Sagar Thomas (2003) 10 SCC 733, K.K.
Saksena Vs. International Commission on Irrigation and Drainage
(2015) 4 SCC 670, Joshi Technologies International Inc. Vs. Union
of India (2015) 7 SCC 728, Purushottam Lal Singhania Vs. Delhi
Public School AIR 2006 Calcutta 313 and Annamma T.V. Vs. State
MANU/KE/0730/1993;
(c) that while the Ashram land is freehold and in the ownership of
SAES, the land underneath Mother's International School and the land
on which the Centre was located are leasehold land;
(d) that the petitioners have misrepresented facts;
(e) that the School was granted a recognition at the time when it
was situated on the freehold land of Ashram;
(f) that though the lease of the land is for College but the Centre
and the School were running thereon;
(g) that this Court in exercise of writ jurisdiction cannot grant a
mandamus which would be contrary to the terms of lease and to the
law;
(h) that SAES is not bound by any statute or by any other
obligation to retain the School at the same site;
(i) attention was invited to Orissa Power Transmission
Corporation Limited Vs. Asian School of Business Management
Trust (2013) 8 SCC 738 to contend that the petitioners as third parties
have no locus with respect to the lease;
(j) reliance was placed on Ayaaubkhan Noorkhan Pathan Vs.
State of Maharashtra (2013) 4 SCC 465 to contend that the
petitioners are not persons aggrieved;
(k) it was strongly refuted that the parents were kept in dark about
the shifting of the School; it was argued that the petitioners were
parties to the meetings held in this regard;
(l) attention was invited to various emails to show that the parents
were fully in the know of the proposed shifting of the School and
were also communicating with each other then and had obtained legal
opinion also at that time and were advised that the School was free to
shift and have filed the present petitions falsely pretending to have
been shocked and / or the shifting has been surreptitious; reference is
made to Ayaaubkhan Noorkhan Pathan supra to contend that merely
by imagining an injury one does not become an aggrieved person;
(m) that all the contents of the petitions are emotional and
sentimental and without any basis in law; attention is invited to clause
(c) of the proviso to Section 4(1) of the School Act which requires a
school to have suitable or adequate accommodation and sanitary
facilities and it is contended that what the petitioners are wanting is
not suitable or adequate but a fancy accommodation;
(n) attention is also invited to Rule 50 and it is contended that the
present premises of the School have been found to be meeting all the
said criteria;
(o) attention was also invited to the letter dated 5th November, 1989
granting recognition to the School inter alia on the condition that the
enrolment in each section shall not exceed the number of students
calculated at 12 sq. feet per student for the available floor area of the
classroom and it is contended that the classroom in the present site
where the school is shifted to is also complying with the said criteria;
(p) that the building / premises to shift wherefrom grievance is
being raised in this petition is in fact not the building for which
recognition was granted to the School;
(q) that at the time when the School was shifted from the building /
premises of the Ashram in which it existed at the time of recognition
to the building / premises where the petitioners now want the School
to remain also no fresh permission was sought from the DoE;
(r) that the decision where the School should be located has to be
and ought to be left to the management of the School;
(s) that the opinion of the Chief Legal Advisor of the DDA on
which reliance was placed in the petition itself was motivated and in
any case has not prevailed and no credence can be given thereto;
(t) that the writ petition in fact has become infructuous, upon the
inspection by DoE having found the School in the new building /
premises to be compliant in all respects;
(u) reference is made to Maharashtra State Board of Secondary
and Higher Secondary Education Vs. Paritosh Bhupeshkumar
Sheth (1984) 4 SCC 27 to contend that there ought not to be any
interference by the Court in educational matters;
(v) that the only objections raised in the inspection have also since
been rectified and now the Bank and the Maitri Store are inaccessible
from the School;
(w) that the Fire Safety Clearance has also been received and
certificate in that regard was handed over;
(x) the argument, that the building where the School is now housed
is without the Occupancy Certificate is not based on any pleadings;
(y) that the invocation by the petitioners of Article 21 of the
Constitution is also misplaced inasmuch once the School Rules permit
shifting of the building within the same locality, there can be no
violation of Article 21 in such shifting;
(z) that the petitioners have no right to demand that the School
continues to run at the same place;
(aa) that the petitioners have no locus to seek annulment of
recognition by AICTE;
(bb) attention was invited to the definition of word ‗locality' as used
in Rule 55 in Black's Law Dictionary 1990 Edition as ―a definite
region in any part of space‖ or ―a geographical position‖ and in P.
Ramanatha Aiyar's The Law Lexicon 3rd Edition 2012 as ―a thing's
position, site or scene of something‖ or ―a district‖;
(cc) attention was invited to Rule 2(m) of the School Rules defining
the ‗Zone' and it was contended that since administrative control of
DoE over Schools is zone-wise, the word ‗locality' in Rule 55 would
mean a zone;
(dd) attention was invited to The Special Deputy Collector Vs. J.
Sivaprakasam AIR 2011 SC 922 where the word ‗locality' as existing
in Section 4(1) of the Land Acquisition Act, 1894 was interpreted as
area where the land is situated so that the persons interested to know
which land is being acquired and for what purpose are to be ordinarily
found and so as to give notice to them.
15. The counsel for the respondent DoE, on instructions, stated that the
School continues to be recognised at present location as it is found to meet
all the requisite criteria.
16. The senior counsel for the School with reference to Sections 18 & 19
of the RTE Act contended that now that a statute prescribes the norms and
standards for a School, Avinash Malhotra supra is not good law.
17. The counsel for the petitioner in W.P.(C) No.4535/2015 relied on Dr.
Janet Jeyapaul Vs. SRM University 2015 SCC OnLine SC 1321 holding a
writ petition to be maintainable against SRM University, a deemed
university, reasoning that since the University was engaged in imparting
education in higher studies to students at large, it was discharging public
function and was an authority within the meaning of Article 12 of the
Constitution of India. It was argued that the infrastructure and location of a
School concerns a public function. It was also refuted that at the time of
obtaining recognition, the School was situated on Ashram land. With
respect to Rule 55 it was contended that the word ‗locality' therein has to be
understood as premises and any change in premises of the school would
require permission of DoE. Reliance in this regard was placed on Ardeshir
H. Bhiwandiwala Vs. State of Bombay AIR 1962 SC 29 on the definition of
‗premises' as found in the Factories Act, 1948. It was yet further contended
that since there is no provision for shifting within the locality, it is deemed to
be prohibited. Reliance was placed on Ramchandra Ganpat Shinde Vs.
State of Maharashtra (1993) 4 SCC 216, Mahadevappa Lachappa Kinagi
Vs. State of Karnataka (2008) 12 SCC 418 and Indian Bank Vs. M/s.
Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 as to the powers of writ
Court on finding a fraud to have been committed.
18. The counsel for the petitioner in W.P.(C) No.6790/2015 also
contended that ‗locality' in Rule 55 means premises. Attention in this regard
was also invited to Section 2(e) of the School Act defining school ‗property'.
19. Mr. Amit Bhargava, life member of SAES intervened and urged that
SAES is misusing its land and the new location to which the School has
been shifted does not comply with the School Rules. It is stated that the
Bank continues to function from the same premises where it existed earlier
and the same is the position with respect to Maitri Store. It was contended
that the SAES be directed to call Extraordinary General Body Meeting to
resolve the issue.
20. The counsel for the School added that the reliance placed by the
petitioners on Dr. Janet Jeyapaul supra, a case of deemed university, is
misconceived. Else the matter is squarely covered by K.K. Saksena and
Joshi Technologies International Inc. supra.
21. The counsel for the petitioner in W.P.(C) No.4535/2015 handed over
a copy of letter dated 21st June, 1991 to contend that according to DDA also
the land is to be used for a School. The concept of promissory estoppel was
also sought to be invoked against the School.
22. I had, after such marathon hearing, suggested that the petitions
bearing W.P.(C) No.4535/2015 and W.P.(C) No.6790/2015 can be finally
disposed of vide the order / judgment in pursuance thereto. However the
counsels were not agreeable and stated that they had argued only on the
interim relief sought of restoration of the School to the same place and in the
same building from which it has been functioning for the last several years.
I therefore confine this order / judgment to the said aspect only.
23. Though the arguments were addressed for long but the short question
for adjudication is whether shifting of the School is contrary to law.
24. As far as the argument of maintainability of the writ petition under
Article 226 of the Constitution of India is concerned, I am of the view that if
as per law the School was not entitled to shift from its then existing location
to another location, even if within the same compound and / or in the
vicinity of the earlier location, and has so shifted in violation of law, a writ
would be maintainable inasmuch as in such a case, even if DOE has failed to
take action, the parents of the students studying in the School can certainly
maintain a writ petition seeking enforcement of law and impugning in-action
on the part of DoE.
25. The law governing the shifting of the School can either be the School
Act and the School Rules, having been enacted to provide for better
organization and development of school education in the Union Territory of
Delhi and for matters connected therewith or incidental thereto and / or the
contract between the School and the parents of the children studying therein
or any other law.
26. I am however of the opinion that if the School Act and the School
Rules are found to deal with the shifting of a School, then, the same being
law enacted on the subject and a complete Code, will prevail over any
general principles of law viz. promissory estoppel, legitimate expectation,
right of children to continue education in the same building and environment
etc. as argued. No contract has been pleaded or shown.
27. In this context, on the very first hearing it was enquired whether there
is any provision in the School Act and School Rules in this respect and on
Rule 55 supra being shown, questions as aforesaid with respect thereto
asked.
28. I, even now hold the same opinion i.e. that the outcome of the
question, whether the shifting of the subject School is contrary to law,
depends solely on the interpretation of Rule 55, being the law on the subject
and if the shifting impugned is in accordance therewith, the arguments of
petitioners of promissory estoppel, legitimate expectation and right of
children to study in same environment or building are of no avail because of
the same having the sanction of law.
29. I therefore proceed to adjudicate the meaning of the word ―locality‖ in
Rule 55 i.e. whether it means ‗location', or ‗situs' and in which case the
consequences provided in Rule 55 will follow the moment school is shifted,
even if to adjacent premises, or whether it means a larger area within which
the School is located and in case of shifting within which, consequences as
provided in Rule 55 will not be attracted.
30. To gauge the meaning to be given to the word ‗locality' in Rule 55,
the provisions of the School Act and School Rules are perused.
31. ‗School', in Section 2(u) of the School Act has been defined as an
institution which imparts education or training below the degree level. The
fact that the word ‗school' does not within its ambit take the building or the
property in which the school is situated becomes clear from Section 2(v) of
the School Act defining ‗school property' as movable and immovable
property belonging to or in the possession of the school including land,
building, playground, hostels etc. Thus the land and building in which the
school as an institution functions is not a school but the property of the
school.
32. Section 3 of the School Act empowers the Administrator i.e.
Lieutenant Governor, Delhi to regulate education in all schools in Delhi in
accordance with the School Act and School Rules and Section 4 of the
School Act provides for recognition of Schools. Such recognition, as
aforesaid, has to be of the School as an institution and not of the school
property which includes as aforesaid the land and building on which the
school exists. The prerequisites for a school to be recognised under Section 4
of the School Act however are, that it has a) adequate funds; b) a duly
approved scheme of management; c) suitable or adequate accommodation;
d) teachers with prescribed qualifications; e) prescribed facilities for
physical education, library service, laboratory work, workshop etc.; and, f) it
provides for approved courses of study and efficient instruction.
33. Distinction between school and its property becomes further clear
from Section 7 of the School Act which requires only schools receiving aid
to furnish particulars of their property and prohibits only schools receiving
aid from transferring, mortgaging or leasing their property without the
previous permission of the appropriate authority. If in the word ‗school', the
land and building on which it is situated were to be also included, the
question of the school transferring its property would not have arisen
inasmuch as by such transfer the school itself would have stood transferred.
In fact Supreme Court, in Municipal Corporation of Delhi Vs. Children
Book Trust (1992) 3 SCC 390 has held that the School Act does not create
school as a specific juristic entity and the school is part and parcel of the
society which has established it.
34. No other provision of the School Act is found to be relevant for
present purpose.
35. The School Rules, for the purpose of regulation of education, vide
Rule 3, divide Delhi into Educational Divisions to be called Districts and
Zones with every district consisting of two or more zones.
36. Chapter III of the School Rules provides for ‗Opening of New
Schools or Classes or Closure of Existing Schools or Classes' and vide Rule
44(1) requires intimation in writing to be given to the Administrator, Delhi
of intention to establish school and vide Rule 44(2) requires such intimation
to specify (a) the zone in which the new school is proposed to be established
and the approximate number of students likely to be inducted in such school;
b) the stage of education intended to be imparted in the new school; c) the
number of schools of the intended stage in existence in the zone where the
new school is proposed to be established and the population of that zone; d)
the alternative zone if any in which the proposer can establish the school; e)
the particulars including measurements of the building or other structure in
which the school is proposed to be run; f) the financial resources from which
the expenses for the establishment and running of the proposed school shall
be met etc. Rule 44(3) empowers the Administrator, Delhi to, if of the
opinion that the number of schools existing in the zone is sufficient to meet
the needs of the zone, to inform the person intending to establish the new
school that establishment of the school in such zone would be against the
public interest and to intimate to such person any other zone where the
school can be established. The said Rule not only demonstrates that the
intimation required to be given is not of the location of the proposed school
but only of the zone in which the school is proposed but also shows that the
emphasis in the Rules is on there not being more schools than needed in a
zone into which Union Territory of Delhi is divided for regulating school
education.
37. An application for recognition of the School, vide Rule 49 of the
School Rules has to be in accordance with Form I prescribed in the Rules
and a perusal of the said form shows that the school can either be in its own
building or can be housed in a rented building. Particulars of number of class
rooms with sitting capacity, area of the playground and other amenities
available are required to be given.
38. Rule 50, prescribing the conditions for recognition also does not
mandate that the school should be owning the land and building in which it
is housed and the conditions relevant for our purpose are; i) that the school
serves a real need of the ―locality‖ and is not likely to effect adversely the
enrolment in a nearby school which has already been recognised; ii) that the
building or other structure adequately meets the requirements of health and
hygiene; iii) that the accommodation is sufficient for the classes under
instruction in the school iv) that the sanitary arrangement at the school are
adequate and are kept in good order; v) that arrangements are made for
supply of drinking water. The same, also uses the word ‗locality' with
which we are concerned. However, the word ‗locality' is otherwise not
defined anywhere and no parameters thereof available. The only inkling of
the meaning thereof, available from Rule 50 is that it should not be a
location so close to an existing school so as to adversely affect enrolment
therein.
39. Rule 52 empowers the DoE to for good and sufficient reason exempt
provisionally any school seeking recognition from any of the requirements
of Rule 50.
40. Chapter VI of the School Rules providing for ‗Grant-in-Aid' to
schools, in Rule 87 thereunder provides for building grant.
41. Chapter VII of the School Rules providing for ‗School Property',
again vide Rule 93 thereunder requires only aided schools to furnish
particulars of their movable and immovable property and vide Rule 94
provides for transfer of School Property acquired out of funds provides by
Administrator by way of aid, without approval of the DoE only if such
property has been declared by DoE to be obsolete, surplus or unserviceable.
This is again indicative of DoE being not concerned with the property of
unaided school and there being no restriction, as far as unaided school is
concerned, on disposal of its property.
42. The value of the land or building in which the school is housed is also
not prescribed under Rule 173 to be included in the school fund.
43. From the aforesaid, I conclude i) that definition of school as an
institution does not take within its ambit the property of the school or the
land or building in which the school is situated; ii) as far as unaided schools
are concerned, the DoE is not concerned with the school property or the land
or building in which the school is housed and no particulars thereof are even
required to be recorded with the DoE; iii) the land and building in which the
school can be housed can be either owned by the school or the school can be
set up in tenanted land or building also; iv) there is no restriction on the
unaided school disposing of school property; v) the concern of DoE with the
land and building in which unaided school is housed is to the extent that the
same satisfies the conditions of recognition and which are confined to
measurements and size; vi) however under the School Act and Rules,
recognition of school is not mandatory and if the land and building in which
the school is housed was not found to be meeting the parameters of
recognition, the only impact is that it will be denied recognition though
could continue to function; and, vii) the only concern School Act and the
School Rules, as far as location of the School is concerned is either with the
zone in which the School is located or with the locality within the zone in
which the School is located--so as to be not so close to another school so as
to adversely affect enrolment therein.
44. Though under the School Act and the School Rules recognition by
DoE was not mandatory and the School could function without recognition
also but as aforesaid, Rule 44(2) requires notice of intention to open new
school to be given. Rule 44(2) has thus to be understood as requiring a
notice to be given only when the proposed school is intended to be a
recognised school.
45. In my view, we have to understand the word ‗locality' in Rule 55 in
the light of the aforesaid provisions.
46. The analysis aforesaid of the School Rules would show that the
concern of DoE while granting recognition to a new school is that there
should be a need for a school in the zone in which it is proposed to be
established and that the new school is not in a locality within the zone so as
to be so close to another recognised school to adversely affect enrolment
therein. Establishment of a new school in a zone where recognised schools
sufficient to meet the needs of residents already exists has been declared to
be contrary to public interest. Else, there are no conditions specified as to
where within the zone the school can be situated/located. Once a need for a
school is found in a zone, it appears that the school can be located at any
place in the said zone and the said location can be changed from time to time
within the zone, so long as the location is not so close to an existing
recognised school to affect enrolment therein. Only if the location is
intended to be changed either to a different zone does the question, whether
the zone to which the school is intended to be shifted has a need for a school
or not, arises and for making which assessment prior approval of the DoE
vide Rule 55 is mandated or if the location is to be changed though within
the zone but so close to an existing school so as to adversely impact
enrolment therein does the question of obtaining the approval of DoE arises.
47. I have however wondered, whether a school, recognition to which is
granted after DoE has satisfied itself that the land and building in which the
school is housed fulfills the conditions of recognition, ought not to be
permitted to shift from that land and building to another land and building
which may not meet the criteria for recognition, resulting in the recognition
lapsing. Though recognition, as aforesaid, under the School Act is not
mandatory but is essential for the students studying therein as without the
school being recognised, the question of it being affiliated to any of the
Boards of Examination does not arise and without taking whose
examination, no qualification can be claimed. I have further wondered that
if a recognised school is so permitted to shift from land and building meeting
the approval of DoE and resulting in recognition, to another land and
building, without first having the same approved from DoE and running the
risk of lapsing of recognition compelling the students to leave and resultant
closure of the school which otherwise cannot be done under Rule 46 without
the approval of DoE, the same may be misused by unscrupulous persons to
close a recognised school defeating Rule 46.
48. In this regard I may also notice that though under the School Act and
Rules recognition was not mandatory and there could be an unrecognised
school also but this Court in Social Jurist Vs. Govt. of NCT of Delhi 2008
IV AD (Delhi) 108 directed survey of unrecognised schools, giving of
opportunity to them for recognition and closure of unrecognised schools.
While the said process was still on, the RTE Act, 2009 was enforced and
Section 18 whereof prohibits establishment and functioning of unrecognised
schools. Section 19 of the said Act also lays down norms and standards for
schools.
49. I have however on further consideration concluded that once the
provision of Rule 55 is clear and unambiguous and in the context of the
other provisions of the School Act and the School Rules, the possibility of
misuse thereof by unscrupulous elements to defeat Rule 46 should not affect
the interpretation and meaning thereof. It is felt that to hold so would also
be against the public interest. As aforesaid, there is no requirement that the
school should be housed in its own land and building--it can be in tenanted
land and building also. To say, that a recognised school in tenanted
premises cannot shift, will deter owners of land and building from letting out
for use as a school. Even otherwise, once the Legislature has not deemed it
necessary to impose any restriction on unaided schools from dealing with
their property, no such restriction in the guise of Rule 55 can be introduced.
Rather, Rule 55(2) provides for giving of notice of 60 days for complying
with a condition of recognition if the school (which has shifted) is found to
be non-compliant therewith at the shifted premises. Thus even if the new
land and building to which the school is shifted is found to be non-
compliant, the same can be made compliant within 60 days of it being so
pointed out. If any unscrupulous person misuses the provision, if will be
open to the authorities concerned to take appropriate action. It is settled
principle of law that mere possibility of abuse of a provision does not affect
its constitutionality or construction and abuse has to be checked by constant
vigilance and monitoring of individual cases including by screening of cases
by a suitable machinery at a high level (see Sanjay Dutt Vs. State (1994) 5
SCC 410). In Whirlpool of India Ltd. Vs. Employees' State Insurance
Corporation (2000) 3 SCC 185 it was held that definition of the word
―wages‖ in Section 2(22) of the Employees' State Insurance Act, 1948 could
not be rewritten by the Court even if there was a possibility of misuse by
employers. Recently, in Supreme Court Advocates-On-Record Association
Vs. Union of India (2016) 5 SCC 1 also the same sentiment was echoed by
observing that the possibility of abuse of the power is no ground for denying
the authority to confer such power and that ―mere possibility of abuse is not
a relevant test to determine the validity of the provision‖. It was further held
that ―in final analysis, all power could be misused including judicial power.
The remedy is not to deny grant of power.....‖.
50. I am also unable to agree with the contention of the counsels for the
petitioners that the School Rules only provide for shifting outside the
locality and not within the locality. Once the legislature is found to have
applied its mind to the aspect of shifting and having consciously prohibited
shifting outside locality without prior permission, it has but to be held that
there is no embargo on shifting within the locality.
51. Crawford's, Statutory Construction in Article 295 authors that as a
general rule, in the interpretation of statutes, the mention of one thing
implies the exclusion of another thing; it therefore logically follows that if a
statute enumerates the things upon which it is to operate, everything else
must necessarily, and by implication, be excluded from its operation and
effect. The doctrine of expression unius est exclusion alterius i.e. the express
mention of one person or thing implies the exclusion of other person or thing
can be invoked. The said passage was approved of by the Supreme Court in
Smt. Indira Nehru Gandhi Vs. Sh. Raj Narain 1974 (Supp) SCC 1.
52. Thus, I hold that
(A) the word ‗locality' in Rule 55 of the School Rules does not
mean ‗location' or ‗situs' or ‗building';
(B) as per Rule 55, no prior approval of DoE is required for shifting
of the school within the same zone (into which Delhi is divided under
Rule 3) and if the place to which the school shifts is not so close to
another recognised school so as to affect enrolment therein;
(C) only for shifting the school to a different zone or so close to
another school so as to affect enrolment therein is prior approval of
DoE required.
53. I find several High Courts also to have in relation to educational
statues interpreted the word ‗locality' similarly.
54. The High Court of Andhra Pradesh in Bharathi Degree College Vs.
State of Andhra Pradesh MANU/AP/3206/2013 was concerned with the
challenge to the grant of permission for shifting of a degree college. Rule
14(3) of the Andhra Pradesh Educational Institutions (Establishment,
Recognition, Administration and Control of Institutions of Higher
Education) Rules, 1987 prohibited grant of permission for shifting of an
educational institution from one locality to another. The word ‗locality' was
not defined thereunder as well. Relying upon the judgment of the Division
Bench of that Court in Sadasiva Sri Educational Society Vs. Gayathri
Degree College MANU/AP/1039/2012 it was held that the term locality
would mean a place with an area which is sufficiently small and compact.
Finding that the permission for shifting had been granted to a different
locality and without even assessing the need for an institution of higher
learning in that locality, the permission was quashed.
55. The question again arises before the High Court of Andhra Pradesh in
the context of re-location of un-disposed shops from an area under the
Andhra Pradesh Excise Act, 1968 in B. Venkateswarlu Vs. Government of
A.P. Revenue (Excise) Department MANU/AP/0079/2014, reference
therein made to Shaktikumar M. Sancheti Vs. State of Maharashtra (1995)
1 SCC 351 where the words ―local area‖ under the Motor Vehicles Taxation
Act were understood in the sense of an area administered by a local
authority.
56. The High Court of Gauhati also in Dharnad Brahmaputra Part 1 and
Satakuri Nodi Fishery Co-operative Society Ltd. Vs. State of Assam
MANU/GH/0458/2011, considering the meaning of the word
‗neighbourhood' in Rule 12 of the Assam Fishery Rules, 1953 held that in
common usage locality is synonyms in meaning with neighbourhood and
that the term neighbourhood does not express any idea of distance and
cannot be measured with mathematical precision and has to be interpreted so
as to define the object and purpose of the Rules.
57. A Division Bench of the High Court of Kerala in Amose D. Vs. C.
Selvaraj MANU/KE/1115/2009, in the context of Kerala Rationing Order,
1966, held that the term residence in the locality can only mean residents
within the area where the ration shop is sanctioned and cannot be given a
restricted scope.
58. Yet another Judge of the Kerala High Court in Kochummini Pillai
Thankappan Pillai Vs. Parukutty Amma Sukumari Amma
MANU/KE/0199/1985 in the context of the Kerala Buildings (Lease And
Rent Control) Act, 1965 held that the word locality has to be given the
meaning other than the city, town or village and in common parlance can
mean an area in a local body like municipality or even a street. The
argument that it means the particular site, was rejected observing that it has
to mean a compact or smaller area than the city, town or village but larger
than the vicinity of the building.
59. The Division Bench of the High Court of Madras also in The
Territory Manager - LPG, Chennai LPG Territory, Bharat Petroleum
Corporation Ltd. Vs. R.K. Pradeep Raj MANU/TN/3236/2015 in the
context of rejection of an application for appointment as an LPG dealer
observed that while the word locality means a neighbourhood or area or
location, the word location means a site or a position.
60. The Division Bench of the High Court of Patna in Baidhya Nath Mali
@ Baijnath Mali Vs. State of Bihar MANU/BH/0423/2003 held that the
expression ‗inhabitants of the locality' in Section 100(4) of the Code of
Criminal Procedure, 1973 cannot be too narrowly construed, to mean a pin
pointed locality just around the place where search is to be made. The
adjoining places may also be included in the term locality and a contiguous
village will also come within the meaning of locality.
61. The Division Bench of the High Court of Orissa in Liberation
Education and Action for Development Vs. State of Orissa
MANU/OR/0552/2002 in the context of the Bihar and Orissa Excise Act,
1915 reiterated that locality and local areas are relative terms distinguishing
places from other places but locality would implicitly mean a smaller
identified place than the local area which would include within itself the
locality and embrace more areas and would be identified as the local area in
distinction from still bigger area.
62. High Court of Madras in A. Sengayan Chettiar Vs. State of Tamil
Nadu by the Secretary to Government, Food Department MANU/TN/0287/
1970 in the context of grant of permit for establishment of a rice mill held
that the definition of the word locality had been avoided because to iron-
jacket the word by statutory definition would make it impossible sometime
to propagate the objects of the legislation and that the meaning has to be
ascribed to the word to subserve the purpose of the provisions.
63. Rule 42 of the Goa, Daman and Diu School Education Rules, 1986 is
found to be identical in this respect to Rule 55 supra. The Division Bench of
the High Court of Bombay in K.B. Naik Vs. State of Goa 1989 SCC OnLine
Bom 235, concerned with the shifting of some of the classes of the school to
another premises at a distance of about half a kilometer only but in a
different ward of the same village, held that it amounted to shifting of a
school in a different locality because of the new premises being situated in a
different ward.
64. The only judgment of this Court relating to Rule 55 is in Dashmesh
Education Society Vs. Director of Education 107 (2003) DLT 301 where a
school had been de-recognised for shifting from the site where it was
granted recognition. It was held that a school cannot ordinarily be allowed
to shift to a far removed locale since it is bound to be deleterious to the
convenience of the student. Also finding that the school had shifted by
approximately 100 mtrs. only from its earlier location, it was observed that it
was open to argument whether it has actually shifted to a different locality.
65. I may in this context record that Section 3 of the RTE Act vests in a
child a right to education in a ‗neighbourhood school'. The area or limits of
neighbourhood have been laid down in Rule 6 of the RTE Rules, 2010, in
respect of children in Classes from I to V as within a walking distance of 1
Km. and in respect of in Classes VI to VIII within a walking distance of 3
Kms. The said criteria has been relaxed from 1 to 6 Kms. as discussed in
Federation of Public Schools Vs. Government of NCT of Delhi ILR (2012)
III Delhi 490. May be, now, the word ‗locality' can be understood in
consonance therewith.
66. Once, it is found that there was no restriction on the subject School
under the School Act and the School Rules in so shifting, I am of the view
that all the other arguments are of no consequence. It then matters not, for the
purposes of the controversy at least subject matter of W.P.(C) Nos.4535/2015
& 6790/2015, for what purpose the lease of the land was granted and / or the
reasons for shifting of the School and / or the manner in which the School was
shifted. Rather, some merit is found in the contention of the senior counsel
for the School that the petitioners approached this Court with a case of the
School having surreptitiously shifted (as is evident from the first order in
W.P.(C) No.4535/2015) when there are documents to show that the parents
were aware of the proposal to shift and had been holding meetings in that
regard. There is also nothing to show that the School had, while admitting
any of the students, meted out any assurance of the School being continued to
be housed in the same premises and / or continuing to provide the same
environment seeing which the students or their parents may have opted for the
School. There was also no binding on the students to continue in the same
School and the students were also free to leave the same whenever they
desired. The parents of the students, if now are not satisfied with the School,
are still free to make their wards leave the School and again exercise the right
to chose qua which vehement arguments were made.
67. Even otherwise, argument of contract, promissory estoppel and
legitimate expectation and which are denied by the School raise factual
questions and which cannot be the subject matter of writ jurisdiction. If the
petitioners want to succeed on such grounds, they will have to lead evidence
to lay foundation for the same in a suit and not by way of these writ petitions.
68. I am similarly not able to find any case in favour of the petitioners on
the basis of the argument raised, of the subject School being an autonomous
School. Even if for argument sake, it is believed that the subject School is an
autonomous School, I fail to see as to what difference will the same make as
far as the position discussed hereinabove is concerned. Though Rule 17
provides for establishment of autonomous school but the remaining Rules do
not thereafter make any distinction vis.-a-vis. autonomous school and apply
equally thereto. The only difference as per Rule 17 between any other
recognised school and an autonomous school is that a school once declared by
the administrator as an autonomous school shall have the freedom to have its
syllabus and curriculum. Rather Rule 17(3) specifically provides that
autonomous school shall be subject to the provisions of the School Act and
the School Rules in respect of all matters.
69. The contentions of the intervener also at least at this stage have no
relevance. The intervener seems to have disputes with the Governing Body
of the Society which has established the School and appears to be using the
platform of these writ petitions to vent his said grievances and to make the
internal affairs of the said Society, subject matter of these writ petitions and
which cannot be permitted.
70. I, therefore, do not find any ground for grant of interim relief to be
made out.
The applications for interim relief are dismissed.
RAJIV SAHAI ENDLAW, J.
JULY 07, 2016
‗pp/bs/gsr' ..
