having public law element
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936
WP(C).No. 27162 of 2014 (U)
----------------------------
PETITIONER:
SIMI.A.C., AGED 26 YEARS, D/O.LATHA,
ANANYA BHAVAN, T C 20/265, CRA 216,
PATHIRAPPILLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENTS:
1. THE SECRETARY,GENERAL EDUCATION
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE DISTRICT COLLECTOR, COLLECTORATE,
CIVIL STATION, THIRUVANANTHAPURAM-695 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHY, THIRUVANANTHAPURAM.
4. DEPUTY DIRECTOR OF EDUCATION,
THIRUVANANTHAPURAM-695 001.
5. DISTRICT EDUCATIONAL OFFICER,
THIRUVANANTHAPURAM-695 001
6. ASSISTANT EDUCATIONAL OFFICER
THIRUVANANTHAPURAM(NORTH)-695 004.
7. THE PRINCIPAL, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY,KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
8. THE MANAGER, JAWAHAR ENGLISH MEDIUM SCHOOL,
PATHIRAPPALLY, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM-695 043.
ADDL. RESPONDENTS 9 AND 10 ARE IMPLEADED
9. SHIHI A.G.NAIR, TEACHER, JAWAHAR ENGLISH MEDIUM
SCHOOL, KUDAPPANAKKUNNU VILLAGE, PATHIRAPPALLY,
MUKKOLA P.O., TRIVANDRUM-5 RESIDING AT KUZHIVILA
PUTHEN VEEDU, NETTAYAM, MANIKANTESWARAM P.O.,
THIRUVANANTHAPURAM-13.
Impleaded as per order dated 23.10.2014 in IA 14366/2014
10. THULASI.S., AKASH BHAVAN, TGRA-58
PATHIRAPPALLY, KUDAPPANAKKUNNU,
PRESIDENT, PTA, JAWAHAR ENGLISH
MEDIUM SCHOOL, PATHIRAPPALLY.
Impleaded as per order dated 30.10.2014 in IA 14558/2014
R1 TO R6 BY SPL.GOVT. PLEADER SRI.T.T.MUHAMOOD
R7&R8 BY ADVS. SRI.M.P.ASHOK KUMAR
SMT.BINDU SREEDHAR
SMT.R.S.MANJULA
ADDL.R9 BY ADV. SRI.THOMAS ABRAHAM
SMT.MERCIAMMA MATHEW
SRI.ASWIN.P.JOHN
SRI.T.S.PRASANNAKUMAR
ADDL.R10 BY ADV. SRI.S.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
LOCUS STANDI:
25. In public law remedy, the controversy surrounding the issue of locus standi refuses to die down. At the outset, it is to be observed that a constitutional remedy under Article 226 is less adversarial than the statutory remedies essentially falling under Section 9 of the Code of Civil Procedure (CPC). Most of the times, save issues pro bono publico, though individual rights are agitated, they invariably have a public law element ingrained in them. In the present instance, regarding the issue of running a school without the necessary statutory recognition, there are two sets of people who may have an element of interest: (1) those whose wards are studying or studied in the school, and (2) those who do not have anything to do with the school. The challenge of the first set of people can easily be repelled on the ground that they admitted their wards into school with their eyes wide open and that they could as well withdraw their wards from the school, as it is the option always available for them. In fact, in the present instance, it is the precise contention of the learned counsel for respondents 7 and 8 that the petitioner already withdrew her children from the school, thus rendering herself a stranger to it. A challenge by the second set of people can be repelled on the ground that they have not suffered any loss in this regard or that they are busybodies.
26. In fact, a similar dichotomy of reasoning was disapproved by the Supreme Court in J. Mohapatra & Co. v. State of Orissa, ((1984) 4 SCC 103), wherein the rejection of the writ petition by the High Court on the ground of locus standi was found fault with in the following words:
"7. We are unable to follow the reasoning behind the first ground upon which the High Court rested its decision. It appears to us paradoxical that when a person has submitted books for selection, it is to be said that he has waived the objection which he had to the constitution of the Sub-Committee and that when a person had not submitted any books for selection it is to be said that he is not a "person aggrieved". To say so would be a contradiction in terms. If the reasoning of the High Court were correct, the sequitur would be that nobody would be able to challenge any selection of books, for a person who challenges the selection must either be one who has submitted a book or books for selection or one who has not submitted any book for selection. In our opinion, the High Court was not right in the view it took. Merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books. Similarly, merely because a person does not submit any book for selection, it cannot be said that he is not a person aggrieved. Today, the law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter. It is unnecessary to refer to the decisions of this Court on the point or to dilate further upon it..."
27. At the earliest point of time, in Attorney General v. Independent Broadcasting Authority, popularly known as Mc Whirter case, ((1973) 1 All ER
689), Lord Denning has posed unto himself a similar question and answered it to the effect that the duty sought to be enforced against the broadcasting authority was towards the general public and not to any particular individual or class or group of persons. Later, in Regina v. Greater London Council Ex parte Blackburn and Another ((1976) 1 WLR 550), Lord Denning, relying on Mc Whirter case, held thus:
"5. Locus standi.-
It was suggested that Mr. Blackburn has no sufficient interest to bring these proceedings against the G.L.C. It is a point which was taken against him by the Commissioner of Police...On this point, I would ask: Who then can bring proceedings when a public authority is guilty of a misuse of power? Mr. Blackburn is a citizen of London. His wife is a ratepayer. He has children who may be harmed by the exhibition of pornographic films. If he has no sufficient interest, no other citizen has. I think he comes within the principle which I stated in McWhirter's case [1973] Q.B. 629, 649, which I would recast today so as to read:
"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate."
28. In M.S. Jayaraj v. Commr. of Excise ((2000) 7 SCC 552), the Hon'ble Supreme Court has held thus:
"14. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."
(emphasis added)
29. To the same effect is the observation of the Supreme Court in Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd. ((1983) 4 SCC 625):
"8. [T]o begin with, it can be said without fear of contradiction that anyone having a right that is a legally protected interest complains of its infringement and seeks relief through court must have an unhindered, uninterrupted access to law courts. The expression `court' here is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. Access to justice must not be hampered even at the hands of judiciary. Power to grant injunction vests in the court unless the legislature confers specifically such power on some other forum. Now access to court in search of justice according to law is the right of a person who complains of infringement of his legally protected interest and a fortiori therefore, no other court can by its action impede access to justice. This principle is deducible from the Constitution which seeks to set up a society governed by ride of law."
30. I cannot, at any rate, term the petitioner a wayfarer or officious intervenor. In the light of the well-
established legal position on the issue of standing, I hold that the petitioner does have the necessary locus standi.