Gujarat High Court
Vishwa Bhasha Ane Sahitya Bhavan vs State Of Gujarat & on 28 September, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13962/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13962 of 2010
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VISHWA BHASHA ANE SAHITYA BHAVAN....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SHIRISH JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR. MANAN MEHTA, AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 28/09/2017
ORAL ORDER
Heard learned advocate Mr. Shirish Joshi for the petitioner and learned Assistant Government Pleader Mr. Manan Mehta for the respondents.
2. What is prayed by the petitioner by filling present petition under Article 226 of the Constitution is for issuance of direction to the respondents to allow the petitioner to transfer the school run by it from the place called Shreyas Shala Building, 150 ft. ring road, Near Raiya Telephone Exchange, Rajkot-5 to a new premises and address namely Madhuram Vidyalay, 2, Gandhigram, Near Nanavati Chowk, 150 ft. ring road, Rajkot-5. The other prayer was for declaring Regulation No. 10.1 sub-clause (3) sub-clause (2) of the Gujarat Secondary Education Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Oct 07 08:18:36 IST 2017 C/SCA/13962/2010 ORDER Regulations as ultra vires. Learned advocate for the petitioner drops the said second prayer.
3. The only prayer left is for grating permission to change the place of school. In this regard, the petitioner has prayed to set aside two orders. The first order is dated 09.02.2010 whereby the petitioner was refused permission to shift the location of the school on the ground that as per the Regulation, such permission could not be granted for more than two times. A further order came to be passed on 11.08.2010, in which the respondents changed their stand and different grounds were mentioned for refusal. In the said impugned order dated 11.08.2010, the application of the petitioner dated 18.02.2010 was not accepted on the ground firstly that building use permission from Rajkot Urban Development Authority was not obtained, secondly that rent agreement was for the period of 9 years only and thirdly that the petitioner was not able to show that it possessed a playground in the precincts.
4. The petition was contested by filling an affidavit-in-reply in which Regulation 9 of the Gujarat Secondary Education Regulations was relied on to submit that change could be permitted only on the ground of certain inevitable events, which may necessitate the management to change the location of the school and further that for such change of location, a prior permission of the Board was required to be taken.
Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Oct 07 08:18:36 IST 2017 C/SCA/13962/2010 ORDER 4.1 When learned advocate for the petitioner submitted that while rejecting the petitioner's application as per communication dated 11.08.2010, the petitioner was not heard, learned Assistant Government Pleader could not dispute the position. The grounds and the decision communicated in the aforesaid impugned order dated 11.08.2010 were without giving opportunity to the petitioner to meet with the same. Leaned advocate for the petitioner rightly submitted that before taking the adverse action, had the petitioner been given opportunity, he could have satisfied the authority and could have further convinced the authorities about the compliance of the grounds.
4.2 Learned advocate for the petitioner uncontrovedly submitted that though the ground in the first impugned order was about the Regulation not permitting the third change of location by the school, the earlier two shifting was prior to coming into force the Regulation and the Regulation in this regard, could not have been applied retrospectively to deny the permission to petitioner
5. In the aforesaid view, when the permission to shift the location of the school has been refused to the petitioner on the aforesaid grounds and for which the petitioner has not been granted opportunity of hearing and that it had no occasion to put forth his case in defence, the impugned Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Oct 07 08:18:36 IST 2017 C/SCA/13962/2010 ORDER decision of refusing the petitioner to shift school is required to be quashed on the said ground alone without going into any other aspect of the matter.
6. Accordingly, both the impugned orders dated 11.08.2010 and 09.02.2010 are quashed and set aside. The authorities shall consider the request of the petitioner after giving opportunity to the petitioner of hearing and shall pass a fresh order. This exercise shall be completed within a period of three months from the date of receipt of the order. 6.1 It is clarified that his court has not gone into the merits of the case of the either side. It is further clarified that the authorities shall decide the request of the petitioner without being influenced by the impugned orders and independently on its own merits. Further, while deciding the request of the petitioner afresh, the respondent shall give due consideration to the aforesaid aspect that the Regulation in question was brought into force with effect from 17.07.1999.
7. The petition is allowed Rule is made absolute. Direct service is permitted.
(N.V.ANJARIA, J.) cmjoshi Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Oct 07 08:18:36 IST 2017