BAPUUNAGAR VIDYOTEJAK TRUST Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of 109 petitions, under Article 226 of the Constitution of India, common questions are involved against the common respondents, and therefore, upon joint request, the entire group is being disposed of by this common judgment. FACTUAL PROJECTION: The petitioners are registered education trusts under the Bombay Public Trusts Act, 1950. They run secondary and higher secondary schools, in different areas of State of Gujarat. Most of the schools of the petitioners are housed in rented premises. The house rent as well as property tax amounts are, also, forming part of the maintenance grant provided by the State Government. Respondent No.1, State of Gujarat, by its resolution No.BMS-1199-741(3)(G) and Resolution No.BMS-1199-741(4)(G), of July 2, 1999, has decided to give 65% for other expenses and 35% for house rent and maintenance of schools. The common grievance raised in this group of petitions is that 35 per cent of the total grant of the schools, towards maintenance is not sufficient for the house rent as well as property taxes. It may, also, be stated that by the said resolution, the petitioner-schools were given option for charging higher fees. The resolutions of the Government were required to be enforced from the academic year beginning from June 1999, though the resolution was issued on July 2,, 1999.

(2.) RIVAL SUBMISSIONS : The common contention of the petitioners has been that the financial year of the schools run by education trusts had, already, started from 1st April, 1999, whereas, academic year had started from 14th June, 1999. The petitioners-trusts, had, therefore, already provided for expenses which were to be incurred during that year, well in advance. It is, therefore, the case of the petitioners that any alteration or change in the policy or pattern of the grant after the commencement of the academic year would culminate into huge loss to the petitioner-trusts. The academic year 1999 had already been started from June 1999 and, therefore, admissions were, already, given to the students. Therefore, it has been the grievance of the petitioners that as per the changed resolutions dated 2.7.99, if the petitioners trusts-decide to raise fees and charge higher fees, there would be very much adverse impact and effects and there may be confrontation amongst and with the parents and students. The petitioners, have, therefore, invoked the constitutional remedy under Article 226 of the Constitution by filing this group of petitions. Since common questions are involved, individual case-wise facts would not be necessary to be mentioned. The petitioners have, therefore, sought two main reliefs that (1) to quash the Government Resolution No.BMS-1199-741(3)(G) and Resolution No.BMS-1199-741(4)(G), both dated July 2, 1999 and (2) to direct the respondent authorities not to implement the aforesaid two resolutions in any manner whatsoever in the current (1999-2000) academic year. The respondents have appeared and resisted the petitions by filing affidavits. Affidavit in reply on behalf of the respondents is filed by one Shri B.K.Bhatt, Under Secretary, Education Department, in the main matter and it is adopted in remaining petitions. The respondents have, inter alia, raised several contentions against the claims made in the petition. However, following important contentions against the petitions may be highlighted.

(3.) PROFILE OF RELEVANT CONSTITUTIONAL LAW: In this group of petitions, the petitioners have invoked the powers of this Court under Article 226 of the Constitution of India. Undoubtedly, in a most populous democratic set up like ours, the first promise of the Constitution is the rule of law. The concept and philosophy of rule of law has variety of shades. Any adverse effect on the efficient structure of rule of law, would, undoubtedly, result into the downfall of democracy. It is, therefore, rightly said that the rule of law is the lifeblood of throbbing democracy, more so in a democratic set up, which has a pluralistic society and federal structure of administration. Judicial review is implicit in the written constitution and unless expressly excluded by a provision of the Constitution, this power is available in respect of the exercise of powers under the provisions of the Constitution. Article 226, in our Constitution, undoubtedly, constitutes a very vital and vetripotent, promising and palliative legal missile in the armoury of judicial review. It confers extra-ordinary jurisdiction in exercise of its power of judicial review upon the High Court to quash or correct the tainted and polluted decision making process of the administration. Any decision or every action of the State or its instrumentality, which is in violation of the principles of natural justice or illegal or in contravention of the prescribed procedure, unreasonable, irrational or malafide is, always subject to judicial test and resultant review. Every executive or administrative action of the State or other statutory or public bodies, legally characterised to be an authority, which is violative of not only of fundamental rights, but of any statutory right or even in breach of principles of natural justice is, always, open to judicial review. The powers of the High Court are devised and designedly provided by the Parliament in Article 226 of the Constitution of India. Article 226 aims at providing justice in a given situation, in a given case. The main design and desideratum of this provision in the Constitution of India is to see that the flag of justice is kept at the full mast, whenever any action of the State brings down the flag of equality, justice or freedom granted under the Constitution and other enactments to the half-mast. It is necessary, in such a situation, to exercise the writ jurisdiction conferred under Article 226 to see that the lowered flag on the mast is put at the full height. Article 226 in our Constitution is couched in a widest possible terms. Unless there is clear ban or bar to its jurisdiction in the Constitution, its power under this Article can be exercised when there is any act which is against any provision of law or violative of the constitutional provision and when recourse cannot be had to the provisions of the Act for the necessary, appropriate redressel, relief and direction. Article 226, therefore, confers on all the High Courts very wide jurisdiction and powers in the matter of issuing writs. Of course, it must be noted, at this stage, that there are restrictions placed upon the exercise of such powers by the High Court under Article 226, viz. (1) that the power is to be exercised throughout the territories to which it exercises its jurisdiction, i.e. writ issued by the High Court cannot go beyond the territories subject to its jurisdiction and (2) that the persons or authority to whom the High Court is empowered to issue writ must be within those territories and those persons that must be amenable to the jurisdiction of the Court either by residence or location within those territories except where the cause of action arise or whole or in part within he territorial jurisdiction of that High Court. It must, also, be remembered that the exercise of power under Article 226 of the Constitution by the High Court, ordinarily, is not directed against the decision or the quality of the decision impugned before the Court, but it is, essentially, confined to its decision making process. The Court is obliged only to consider as to whether the Authority having taken the decision or the decision making process undertaken by such an authority is, in any way, coloured, influenced, or adversely affected on account of any one of the following concepts or aspects and if the answer is in the positive, the High Court would readily exercise its judicial review power invoking the provisions of Article 226.