Gujarat High Court
Podar International School vs State Of Gujarat on 21 June, 2019
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/SCA/10183/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10183 of 2019
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PODAR INTERNATIONAL SCHOOL
Versus
STATE OF GUJARAT
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Appearance:
MR SN SHELAT, SENIOR ADVOCATE with MS DISHA N NANAVATY(2957)
for the Petitioner(s) No. 1,2,3
MR CHINTAN DAVE, Assistant Government Pleader for the Respondent(s)
No. 1,2
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 21/06/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. The petitioner trust has been established with the object of establishing and managing public institutions. Desirous of establishing a school at Himmatnagar, Dist. Sabarkantha, the petitioner school entered into a Memorandum of Understanding with a land owner on 28.03.2016 by which the land owner was required to construct school building and thereafter lease out the premises to the petitioner for a period of 30 years. Accordingly, lease deed dated 12.04.2018 was executed for the purposes of giving on lease the school premises to the petitioners.
2. The petitioners thereafter applied for permission to start an unaided private primary school from classes 1 to 5 and 6 to
8. Initially, permission was refused. However, when an Page 1 of 5 Downloaded on : Wed Jul 03 10:47:43 IST 2019 C/SCA/10183/2019 ORDER appeal was filed, by an order dated 20.04.2018, permission to start classes 1 to 5 for the academic year 2018-19 was granted. It is the case of the petitioners that they were enrolling students in classes 1 to 5. Thereafter, since no decision was taken on the appeal with regard to classes 6 to 8, a fresh application was made for starting classes 6 to 8 from March 2019, March 2020 and March 2021 respectively. The Director of Primary Education issued an advertisement inviting proposals for commencement of new and non-granted primary schools on 28.02.2019 for the academic year 2019. It was in this context that the petitioner applied for grant of permission for class 6 in June 2019.
3. In exercise of powers under sub sections (1) & (2) of Section 63 of the Gujarat Primary Education Act, 1947, the Government of Gujarat made rules to amend The Bombay Primary Education Rules, 1949. Rule 106(7)(iv) reads as under:
"Any management board of primary school which proposes to open a new school within urban area (including municipal limits, municipal corporation, Urban Development Authority area, Area Development Authority limits, Notified Area, etc.) shall own and possess in their name at least 1200 square meters of open space for the purpose of playgrounds excluding the area required for construction of school premises; whereas in case of rural areas (Village/Panchayat area) they must own and possess at least 2000 square meters of open space for the purpose of playground excluding the area required for construction of school premises. The land for playground and school building must be of ownership of school management and same must be in the same complex adjoining the school building. The area so earmarked for playground shall not include the area to be reserved for roads Page 2 of 5 Downloaded on : Wed Jul 03 10:47:43 IST 2019 C/SCA/10183/2019 ORDER or parking under the provisions of Gujarat Comprehensive Development Control Regulations, 2017.
The school having minimum required area of playground as stipulated above shall not give admission to more than 500 students. However, for any further admission in excess of 500 students, additional area of land at the rate of 5(five) square meters per additional student shall be made available.
No construction shall be erected on the land earmarked for playground and same shall remain vacant forever.
The school management shall make available parking area as stipulated in paragraph No. 8.6 of Gujarat Comprehensive Development Control Regulations, 2017 in respect of parking space required for educational institutions. Even for rural areas, the school management shall make necessary parking arrangement as provided under these rules.
Provided that the authority so empowered to grant permission for private primary school, in special circumstances of a case, grant relaxations in fulfilment of requirements of provisions under this clause."
4. The application for permission to commence standard 6 was refused by the impugned order dated 01.06.2019. The District Education Officer refused permission to commence classes 6 to 8 relying on sub rule (iv) of Rule 106(7) inter alia on the ground that the rule specifically provided that a management which proposed to open a new school within the urban area shall own and possess in their name at least 1200 sq.mt of open space for the purpose of playground and such playground and the school building must be of the ownership of the school management.
5. Mr. S.N. Shelat, learned Senior Counsel appearing for Page 3 of 5 Downloaded on : Wed Jul 03 10:47:43 IST 2019 C/SCA/10183/2019 ORDER the petitioner referring to the impugned notification dated 22.02.2019 contended that in case of petitioner classes 1 to 5 had already commenced pursuant to permission granted on 20.04.2018. Denial of permission for classes 6 to 8 was misconceived. Provision of Rule 106(iv) was only applicable in case of new schools. In case of petitioners, the school had already commenced academic session for the classes 1 to 5. What it wanted was a permission progressively meant for classes 6 to 8 in the existing school and therefore the decision was illegal.
6. As against the above, learned Assistant Government Pleader Mr. Chintan Dave supported the decision of the government for rejection of permission for classes 6 to 8 because in effect it would amount to starting a new school.
7. Having considered the submissions made by learned advocates appearing for the respective parties, reading of the rule indicates the stipulations thereunder need to be followed when a management proposes to open a new school in the urban area. The facts in the present case indicate that a permission to start standards 1 to 5 and 6 to 8 was already made by the management in the year 2018. Prior to the amendment of the rules and communication dated 22.02.2019 permission for classes 1 to 5 and 6 to 8 was refused. However, by a communication dated 28.04.2018 permission to start classes 1 to 5 was already granted. Appeal to start classes 6 to 8 was pending and what was essentially asked for was to progressively start classes 6 to 8 so that students who are studying in class 5 could gradually secure admissions to the successively higher standards. It was certainly not a case Page 4 of 5 Downloaded on : Wed Jul 03 10:47:43 IST 2019 C/SCA/10183/2019 ORDER where the notification dated 22.02.2019 applies in the case of the petitioner because it was an existing school and it was not opening a new school.
8. In the backdrop of such facts, Rule returnable on 22.08.2019. Interim relief in terms of para 9(D) is granted. The respondents are directed to permit the petitioners to impart education to the students of the school from classes 6 to 8 subject to the condition that the school otherwise fulfills the requisite criteria. Permission is granted to impart education to the students as aforesaid till the final disposal of this petition. To be listed for final hearing along with Special Civil Application No. 6168 of 2019.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 5 of 5 Downloaded on : Wed Jul 03 10:47:43 IST 2019