Case Note & Summary
Background: The dispute arose from a writ petition filed by Public Education Society, a trust managing a secondary school in village Walwadi, Dhule district, challenging an order dated 1 August 2013 that permitted Rashtramata Jijau Sevabhavi Sanstha (respondent No. 4) to shift its school from Khedle, Nandurbar district, to Gautamnagar, Walwadi, Dhule district. Facts: Petitioner-society had been running a secondary school since 1982 and alleged that respondent No. 4 was not permitted to operate a school in the same area. Earlier, a writ petition (No. 6052/2012) was disposed of on 2 July 2013 after the Deputy Director of Education stated that an unauthorized school run by respondent No. 4 had been closed. However, on 1 August 2013, the State passed the impugned order permitting the transfer, which the petitioner claimed violated state policies (Government Resolutions dated 17 February 2009 and 9 June 2010) that discouraged unhealthy competition and required consideration of existing schools’ objections. Legal Issues: (i) Did the petitioner have locus standi to challenge the transfer as a competitor? (ii) Was the order passed in violation of natural justice? (iii) Was the transfer order arbitrary or contrary to policy? Arguments: Petitioner contended that education is not a business, that the transfer would harm academic interests, that the Deputy Director’s earlier affidavit indicated the transfer was impermissible, and that no hearing was afforded. Respondents argued that a competitor has no right to object under Article 19(1)(g), that there was sufficient scope for another school in a village of 45,000, and that no legal provision required hearing. Court’s Analysis: The Court, relying on Supreme Court precedents in Nagar Rice Mills v. Teekappa Gowda, Jasbhai Desai v. Roshan Kumar, and Mithilesh Garg v. Union of India, held that an existing institution cannot, as a mere competitor, obstruct the entry of another. It also referred to Indian Medical Association v. Union of India to clarify that education under Article 19(1)(g) is protected only if charitable, not as a trade or business. The Court found no violation of natural justice, as no statutory or policy provision mandated prior hearing of the petitioner. The petitioner’s allegations of arbitrariness were not sustained. Decision: The writ petition was dismissed, upholding the transfer order of 1 August 2013.
Headnote
A) Education Law - Right to Establish Educational Institutions - Article 19(1)(g), Constitution of India - Education can be an occupation under Article 19(1)(g) only when it is charitable in nature and not for profit. Held, the right to establish an educational institution is protected, but it does not grant a competitor the right to challenge the establishment or relocation of another institution. (Paras 6, 11)
B) Constitutional Law - Locus Standi of Competitor - Article 19(1)(g), Constitution of India - A person carrying on an occupation or business has no locus standi to object to the entry of another person in the same field by contending that it violates Article 19(1)(g). Held, following Nagar Rice Mills (AIR 1971 SC 246), Jasbhai Desai (AIR 1976 SC 578), Mithilesh Garg (AIR 1992 SC 443), the petitioner school society cannot object to the transfer of another school to the same village as a competitor. (Paras 9-10)
C) Administrative Law - Natural Justice - Government Resolutions dated 17.02.2009 and 09.06.2010 - No requirement exists under the relevant policy or law that an existing educational institution must be heard before transfer or relocation of another school to its area. Held, there is no violation of principles of natural justice. (Paras 9, 11)
Issue of Consideration
Whether an existing secondary school society has the right to object to the transfer of another secondary school to the same village under Article 19(1)(g) of the Constitution and whether the impugned transfer order violated principles of natural justice.
Final Decision
Writ petition dismissed. The Court held that the petitioner, as an existing school, cannot object to the transfer of another school as a competitor, and no violation of natural justice occurred. The impugned order dated 1 August 2013 was upheld.
Law Points
- education is not a business
- right to establish educational institution under Article 19(1)(g) is for charitable purpose
- competitor cannot object to establishment or relocation of similar educational institution
- no requirement of hearing before transfer under relevant government resolutions
- policy decisions of state in education matters are not subject to interference unless arbitrary
Case Details
2014 LawText (BOM) (01) 16
Writ Petition No. 6697 of 2013
S.C. Dharmadhikari, Ravindra V. Ghuge
Mr. V.D. Hon holding for Mr. Ashwin V. Hon for petitioner, Mr. G.K. ThigleNaik, A.G.P. for respondents No. 1 to 3, Mr. V.D. Sapkal for respondent No. 4
Public Education Society, through its President Sahebrao s/o Vitthal Bhamre
1. The State of Maharashtra, through the Secretary for Education and Sports Department, Mantralaya, Mumbai. 2. The Deputy Director of Education, Nashik Division, Nashik. 3. The Education Officer (Secondary), Zilla Parishad, Dhule. 4. Rashtramata Jijau Sevabhavi Sanstha, Rami, Tq. Shindkheda, District Dhule, through its President Shri Sanjay Bhuwan Bhamre
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging an order permitting transfer of a secondary school from one district to another.
Remedy Sought
Quashing of the order dated 1 August 2013 passed by the State of Maharashtra permitting respondent No. 4 to shift its school to village Walwadi, Dhule.
Filing Reason
Allegation that transfer would create unhealthy competition, violated state policies requiring consideration of existing schools, and that the order was passed without hearing the petitioner.
Previous Decisions
Earlier writ petition No. 6052/2012 was disposed of on 2 July 2013 after the Deputy Director of Education stated that unauthorized school run by respondent No. 4 had been closed; the earlier permission for transfer was cancelled on 02.11.2012 due to oversight.
Issues
Whether the petitioner, an existing educational institution, has locus standi to challenge the transfer of another school to the same area as a competitor under Article 19(1)(g)?
Whether the impugned order of transfer violated principles of natural justice?
Whether the transfer order was arbitrary and contrary to the State's own policies and Government Resolutions?
Submissions/Arguments
Petitioner: Education is not a business; the transfer would harm academic atmosphere and create unhealthy competition; State policy required report and consideration of existing schools; no hearing was given; earlier Deputy Director's affidavit acknowledged unauthorized running; the order reeks of arbitrariness.
Respondents: A competitor has no right to object under Article 19(1)(g); no provision mandates hearing; the village population of 45,000 can support more than one secondary school; requisite procedure under Government Resolutions was followed; policy decisions are not subject to interference unless arbitrary.
Ratio Decidendi
An existing educational institution has no locus standi to object to the establishment or relocation of another educational institution in the same area, as a competitor cannot claim a violation of Article 19(1)(g). There is no requirement under the relevant Government Resolutions or principles of natural justice to hear the rival institution before granting permission for transfer. The right to establish educational institutions under Article 19(1)(g) is protected only when charitable and not as a trade or business.
Judgment Excerpts
He submits that the Hon'ble Supreme Court has time and again ruled that a competitor has no role to object to a business being set up by another individual when the State permits such a course. It does not violate the mandate of Article 19 (1) (g) of the Constitution of India.
In paragraph 91, of P.A. Inamdar, this Court enunciated one of the main holdings of TMA Pai as : "the right to establish an educational institution, for charity or for profit, being an occupation is protected by Article 19 (1) (g)". In this regard, inasmuch as the majority in the 11 Judge bench in TMA Pai, along with those who partly dissented and partly concurred, clearly held that education could be an occupation under Article 19 (1) (g) only when charitable in nature, we are of the opinion, and hold, that the observation in para 91 in P.A. Inamdar that education can be an occupation imbued with profit motive is not the ratio of the decision.
Procedural History
Petitioner earlier filed Writ Petition No. 6052/2012 challenging the same respondent No. 4's unauthorized school at Walwadi. That petition was disposed of on 2 July 2013 based on Deputy Director of Education's affidavit that the unauthorized school was closed and the earlier permission for transfer was cancelled on 02.11.2012 due to oversight. Subsequently, on 1 August 2013, the State permitted the transfer, which is the subject of the present petition.
Acts & Sections
- Constitution of India: Article 19(1)(g)
- Bombay Public Trusts Act, 1950:
- Societies Registration Act, 1860:
