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Judgment
V. Dhanapalan, J.—This writ petition has been filed by the Manager and Correspondent of an aided Middle School seeking a mandamus to
forbear the respondents 1 to 4 from allowing the 5th respondent to run Jayam Primary & High School at Sundaresapuram, Venmankondan Post,
Udayarpalayam Taluk, Perambalur District.
The case of the petitioner school, in brief, is as under:
The petitioner school has been functioning as an aided Middle School at Sundaresapuram Village, Venmankondan Post, Udayarpalayam Taluk,
Perambalur District since 1956 with 112 students on its rolls at present and there are also three Government High Schools and two Panchayat
Union Middle Schools within the radius of 2-3 kms and while this being the case, the fifth respondent has started a school from the academic year
2006-2007 even without recognition, thereby inducing the parents of the wards studying in the petitioner school to get Transfer Certificate and to
admit their wards in the fifth respondent school. In this regard, the petitioner school has made a representation dated 06.02.2006 raising its
objection to the first respondent; but, there has been no action from the respondent. In these circumstances, the petitioner has filed the present writ
petition.
On 22.06.2006, when this writ petition was taken up for admission, this Court had granted interim injunction and on 21.07.2006, notice had
been ordered to the fifth respondent.
Counter has not been filed by the respondents 1 to 4; but the fifth respondent school has filed its counter.
According to the fifth respondent school, since there are a number of boys and girls aspiring to receive quality education and the schools are
situated at far-off places at Udayarpalayam Taluk, it was thought fit to open a Primary and High School and hence, the fifth respondent created
necessary infrastructure including building with RCC roofing and with proper ventilation and lighting arrangements; it has been inspected by the
Deputy Director of Health Services, Perambalur and Fire Services and Rescue Operations Department has also given No Objection Certificate
and the Tahsildar too has given permission to accommodate the building for the purpose of conduct of classes; thus, making available all the
required infrastructure, it had applied to the respondents 1 to 4 seeking approval; since the petitioner has sent objections on the starting of the fifth
respondent school, the proposal is yet to be considered for approval and its application has been returned. The main contention of the petitioner
school is that it has every right to carry on business being a fundamental right conferred under Article 19(1)(g) of the Constitution of India and the
petitioner school has no locus standi to question establishment of the fifth respondent school.
Heard Mr. T. Sellapandian, learned Counsel for the petitioner, Mr. V. Vivekanandan, Additional Government Pleader for the respondents 1 to
4 and Mr. K. Alagirisamy, learned Senior Counsel appearing for the fifth respondent.
The learned Counsel for the petitioner has contended that:
a. the petitioner school was established in the year 1949 as an Elementary School and if the fifth respondent is allowed to be started, there will be a
disturbance to the petitioner school as the parents of its wards may be induced to admit their wards in the fifth respondent school;
b. as per Rule 4(b) of the Tamil Nadu Elementary Education Act and the Rules, 1920, (in short ""the Act and Rules""), no new school shall be
permitted to be opened by a private management in a locality which is adequately served by the schools already existing in the locality and thus,
without considering the relevant provision, the respondents 1 to 4 cannot approve the proposal sent by the fifth respondent and if at all the
proposal is approved by the respondents 1 to 4, the peaceful running of the petitioner school will be affected;
c. the petitioner school has submitted its objection to the respondents 1 to 4 with regard to giving approval to the fifth respondent school and the
same is under consideration by them.
The learned Additional Government Pleader for the respondents 1 to 4, on instructions, has submitted that the fifth respondent school is without
recognition as on date and it cannot be run without proper recognition and approval and the authorities have taken appropriate action in the light of
the Act and Rules.
On the other hand, the learned Senior Counsel appearing for the fifth respondent school has contended that only after complying with the
necessary formalities, the fifth respondent has sent a proposal to start a school to the respondents 1 to 4 as per the guidelines prescribed by the
Government and has sought approval but the same has been returned to the fifth respondent. He has further contended that while the petitioner is
an aided school, the matter of giving approval to start a new school is the concern of the respondents 1 to 4 and if at all the petitioner school is
aggrieved by the starting of the fifth respondent school, it can only raise its grievance only before the appropriate authorities and it cannot be by
way of filing a writ petition, particularly when there is no infringement of its fundamental right.
In support of his contentions, the learned Senior Counsel appearing for the fifth respondent has relief on:
a. a decision of this Court reported in 1986 LW401 in the case of State of Tamil Nadu v. Savari Cruz and the relevant para reads as under:
...from the mere fact that by opening of another school, some of the students of the writ petitioner''s school, may seek admission in the new
school, it cannot be said that any of the writ petitioner''s legal rights have been infringed. It would indeed be sordid to equate the management of an
educational institution with the conduct of a business or a commercial concern, though some Correspondents of private management schools seem
inclined to do so. Assuming that such an equation is permissible, the right to carry on business being a fundamental right under Article 19(1)(g) of
the Constitution, the exercise of that right is subject only to the restrictions imposed by law in the interest of the general public under Article 19(6)
(i).
b. another decision of this Court reported in Hindu Harijan Elementary School Vs. The Secretary to Government, Education, Science and
Technology Department and Others, , wherein it was held in paragraphs 9 and 11 as follows:
Section 8(3)(c) is merely regulatory; if it is not complied with, the appellants may probably be exposed to a penalty, but a competitor in the
business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the
appellants be regarded as a new rice mill competition in the trade or business may be subject to such restrictions as are permissible and are
imposed by the state by a law enacted in the interests of the general public under Article 19(c), but a person cannot claim independently of such
restriction that another person shall not carry on business or trade so as to affect his trade or business adversely.... Even assuming that no previous
permission was obtained the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the
respondents was infringed.
c. yet another recent decision of this Court reported in 2007 WLR 351 in the case of M. Andiappan v. State of Tamil Nadu, wherein it has been
held as follows:
Similar issue with regard to locus standi was considered by a Division Bench of this Court in the decision reported in Nataraja Agencies Vs. The
Secretary, Ministry of Petroleum and Natural Gas, Government of India and Others, and held that the rival businessman cannot file writ petition on
the ground that establishing rival business venture in his place violates provisions of law as there is no vested right in the applicant which can be
enforced in law.... Here in this case, the petitioner is running a rival school near the 7th Respondent School and as per the above pronouncements I
hold that the petitioner has no locus standi to file this writ petition.
I have given heedful consideration to the submissions made by the learned Counsel for the parties.
The main grievance of the petitioner is that if the fifth respondent is given approval to run the school, its functioning may be affected by
reduction in student as well as staff strength. But, one important aspect that needs to be looked into is that there are other schools in the locality
which are running peacefully and they have not approached this Court questioning the establishment of the fifth respondent school. Admittedly, in
connection with its grievance, the petitioner school has also raised an objection to granting of approval by the respondents 1 to 4 to the fifth
respondent school since the functioning of the latter within a radius of 2 kms. would affect its rights and this objection is pending consideration by
the respondents 1 to 4 and the same has to be considered by them in the light of the provisions of the Act and the Rules.
Even according to the petitioner, the proposal of the fifth respondent has been returned by the respondents 1 to 4 and the fundamental right of
the fifth respondent, i.e. to establish its school and run the same, has to be considered by the authorities concerned in the light of the provisions of
the Act and Rules. A competitor in the business cannot prevent the Correspondent of a particular school from exercising his right to carry on
business merely on the ground that there will be some likelihood of some disturbance to him. Even if the Government refuses to give recognition to
the institution, it is open to the Correspondent of the particular school to proceed further to redress his grievance before the appropriate forum or
the authorities concerned. Thus, when the fact remains that when the establishment of the fifth respondent school has not yet been approved by the
Government and the petitioner''s objection is also pending consideration before the respondents 1 to 4, it is not proper on the part of the petitioner
to approach this Court with the present writ petition. Thus, taking all these factors into consideration, I am of the considered view that based on a
mere apprehension that there will be reduction of student and staff strength in its school and without making a prima facie case and particularly
when no right vested in it has been infringed, the petitioner has approached this Court prematurely by way of this writ petition. Therefore, this writ
petition which is devoid of any merit is liable to be dismissed and it is accordingly dismissed. However, there shall be no order as to costs.
Consequently, connected Miscellaneous Petitions are closed.