Gujarat High Court
Jay Education Trust (Through Its ... vs State Of Gujarat & on 28 July, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/1369/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1369 of 2017
[On note for speaking to minutes of order dated 23/06/2017 in
C/SCA/1369/2017 ]
With
SPECIAL CIVIL APPLICATION NO. 1370 of 2017
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JAY EDUCATION TRUST (THROUGH ITS MANAGING
TRUSTEE)....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MS MAMTA R VYAS, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 1 - 2
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR AD OZA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 28/07/2017
ORAL ORDER
Heard learned advocate Ms. Mamta Vyas for the petitioner. It seems that there are clerical errors in paragraphs 3 and 16 in order dated 23.06.2017 . Therefore, said clerical errors are required to be corrected as mentioned in such note; whereby, the words "standard 12" is to be read as "standard 11" and "standard 9 to 12" is to be read as "standard 9 to 11".
Page 1 of 2HC-NIC Page 1 of 21 Created On Sun Aug 13 05:25:46 IST 2017 1 of 21 C/SCA/1369/2017 ORDER The note for speaking to minutes is allowed and disposed of.
(S.G. SHAH, J.) VARSHA Page 2 of 2 HC-NIC Page 2 of 21 Created On Sun Aug 13 05:25:46 IST 2017 2 of 21 C/SCA/1369/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1369 of 2017 With SPECIAL CIVIL APPLICATION NO. 1370 of 2017 ================================================================ JAY EDUCATION TRUST (THROUGH ITS MANAGING TRUSTEE)....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MS MAMTA R VYAS, ADVOCATE for the Petitioner(s) No. 1 MR AD OZA, ADVOCATE for the Respondent(s) No. 2 MR ROHAN YAGNIK, AGP FOR THE Respondent(S) NO. 1 IN SPECIAL CIVIL APPLICATION NO.1369 OF 2017 and MS ASMITA PATEL, AGP FOR THE Respondent(S) NO. 1 IN SPECIAL CIVIL APPLICATION NO.1370 OF 2017 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 23/06/2017 COMMON ORAL ORDER
1. Both these petitions are between the same parties and for almost similar relief and raising similar issue and, therefore, they are heard together and, therefore, this common order is passed for both the cases though reliefs claimed are different to some extent.
2. Heard learned advocate Ms.Mamta R. Vyas for the Petitioners in both the petitions whereas learned AGP Mr.Rohan Yagnik for the Respondent - State in Special Civil Page 1 of 19 HC-NIC Page 3 of 21 Created On Sun Aug 13 05:25:46 IST 2017 3 of 21 C/SCA/1369/2017 ORDER Application No.1369 of 2017 and learned AGP Ms.Asmita Patel for the Respondent - State in Special Civil Application No.1370 of 2017 and learned advocate Mr.A.D. Oza for Respondent No.2. Perused the record.
3. The Petitioner is a trust which was running a grantinaid School but since its recognition was cancelled by the Respondents, they have applied for grant of recognition as non granted School and when Respondents have refused to grant such recognition, Petitioner has no option but to challenge such decision in these petitions in Special Civil Application No.1369 of 2017, the prayer is for a direction to the Respondents to grant recognition to the Petitioner to open and start class of standard 12 pursuant to the application made by the Petitioner for starting such School with standard 11 from June, 2016; whereas in Special Civil Application No.1370 of 2017, similar relief is prayed for opening a School starting from class of standard 9. Since both such requests have been rejected by the Respondents by their orders dated 14.6.2016, Petitioner has also prayed to quash such orders with a prayer to allow interim relief by granting provisional recognition to the Petitioner -
Page 2 of 19HC-NIC Page 4 of 21 Created On Sun Aug 13 05:25:46 IST 2017 4 of 21 C/SCA/1369/2017 ORDER School for opening non granted Higher Secondary School for standard 9 to 12.
4. The sum and substance of the petition is to the effect that Petitioner has made an online application for recognition and, thereby, to start Secondary and Higher Secondary School in the name of Tulsi Madhyamik and Ucchtar Kanya Vidhyalaya in the premises of Navrang High School which was in existence for couple of decades as aided School but its recognition was cancelled for some different reasons. Before further scrutiny, it may be recollected here that decision of such cancellation of recognition is subjudice before the Division Bench.
5. However, it seems that while passing the impugned order on 14.6.2016 though such facts are not disclosed in the impugned order, as submitted during oral argument and as disclosed and pleaded in affidavit in reply by Respondent No.2, the Respondent No.2 has relied upon such facts of cancellation of recognition of Navrang High School, a grant in aid Higher Secondary School run by the Petitioner - trust. Therefore, prima facie, it becomes clear that Respondent No.2 has prejudiced itself based upon the details of Page 3 of 19 HC-NIC Page 5 of 21 Created On Sun Aug 13 05:25:46 IST 2017 5 of 21 C/SCA/1369/2017 ORDER such Navrang High School, but in that case, without calling the Petitioner to explain that why registration should not be refused on the facts of Navrang High School also; refused the recognition to the Petitioner for its new nongranted School by impugned order. The perusal of impugned order simply confirms that the recognition is refused only on two grounds i.e. (1) the open ground and building shown by the Petitioner - trust to be utilized for the School is not owned by the Petitioner and rent deed in favour of the Petitioner is signed by only one of the owner amongst coowners and (2) the Petitioner does not have sufficient open land to be utilized as a play ground for the School when minimum requirement of play ground is 1200 square meters. Thereby, the Respondent No.2 has conveyed the Petitioner by impugned order that there is breach of both the conditions and, therefore Petitioner is not entitled to recognition and hence it is refused. Though it may be a technical ground, it can however not be ignored that none of the grounds for rejection as disclosed in impugned order is amounting to breach of any condition but practically at the most it can be said that the Petitioner does not fulfill the requisite criteria for granting recognition to any such Page 4 of 19 HC-NIC Page 6 of 21 Created On Sun Aug 13 05:25:46 IST 2017 6 of 21 C/SCA/1369/2017 ORDER School. There is reason to say so, because, breach of any condition has negative result whereas not fulfilling any condition does not amounts to any negativity but it may merely amount to lack or short fall for getting any result. There is reason to say so because pursuant to Government Resolution dated 4.8.2011 by the Education Department of the State Government; copy of which is produced at page Nos.21 to 23 on record, it becomes quite clear that the Committee of the Respondent No.2 has got power to extend relaxation of any criteria including requirement of area of play ground in addition to relaxation for several other criteria. Therefore, it cannot be said that there is breach of any conditions and, therefore, Petitioner is not entitled to the recognition at any cost but if there is any short coming or deficiency in fulfilling any of the requirement, then, whether or not to grant relaxation may be at the discretion of the Committee, but, when there is a provision to relax such requirement, then, such Committee has to act in accordance with Rules and without bias and in any case, their action should never have colour of arbitrariness discrimination or malafide in any manner whatsoever. The perusal of such Page 5 of 19 HC-NIC Page 7 of 21 Created On Sun Aug 13 05:25:46 IST 2017 7 of 21 C/SCA/1369/2017 ORDER Government Resolution dated 4.8.2011 makes it clear that amongst the requirement of requisite infrastructure of the new School, the Committee can relax the condition with reference to the area of the class, area of the School, number of students in class, number of total class rooms, facilities for hygienic conditions, fire safety and B.U. permission etc. Therefore, it becomes clear that the requirement confirmed by the Rules are flexible and at the discretion of the Committee of Respondent No.2 but in that case, such Committee has to act in accordance with law and without discriminating between different applicants before it. Thereby, if there is any discrimination, it would certainly result into arbitrariness so also reflect malafide intention of such Committee and, therefore, the act of refusing to grant permission would certainly be subject to scrutiny by the competent authority i.e. High Court because every citizen / person is entitled to have equal treatment by public authorities and if any of the right of such citizen is infringed in any manner whatsoever, then, certainly the High Court has got the jurisdiction to scrutinize and verify that whether or not action of the government or its body is arbitrary and Page 6 of 19 HC-NIC Page 8 of 21 Created On Sun Aug 13 05:25:46 IST 2017 8 of 21 C/SCA/1369/2017 ORDER discriminatory.
6. In the present case, prima facie, it seems that Respondent No.2 has acted with bias and in discriminatory manner and, thereby, in arbitrary manner in refusing recognition to non granted School to be started by the Petitioner from the academic year 201617 which has just started and, therefore, if Petitioner is not permitted to start the School then the students of the area where such School is proposed to be started in the same premises where initially Navrang High School was running would certainly be difficult in getting an admission and, thereby, continuing their further studies in nearby School. Therefore, though granting interim relief in the form of direction to grant relief may result into allowing the petition, at such admission stage, there is no option or restriction in granting appropriate interim relief so as to see that students of the area and Navrang high School recognition of which has been cancelled may not have to suffer.
7. In view of such facts and circumstances, though it would not be appropriate to determine the issues raised in impugned order Page 7 of 19 HC-NIC Page 9 of 21 Created On Sun Aug 13 05:25:46 IST 2017 9 of 21 C/SCA/1369/2017 ORDER and in this petition finally at this stage of interim order, when Court is inclined to grant some interim relief in favour of the Petitioner, it would be appropriate to scrutinize and observe that the reasons for refusal of recognition are not well founded and on the contrary, it amounts to discriminating the Petitioner from other similarly situated School administration / Schools.
8. By impugned order, when Respondent No.2 has objected that property in which Petitioner wants to start the School is not owned by the Petitioner and that the rent deed in favour of the Petitioner is not signed by all the owners but signed by only one of the co owners, it becomes clear that Respondent No.2 has got such information from some source. In that case, an Institution like Respondent no.2 which is a public body, is supposed to call upon the Petitioner by disclosing the information received by them to explain that what is the correct position. Thereafter, if at all, it is found that the landlord who has entered into rent deed in favour of the Petitioner is not entitled to do so, then, in that case, Respondent No.2 can refuse the recognition as done by it, but not otherwise Page 8 of 19 HC-NIC Page 10 of 21 Created On Sun Aug 13 05:25:46 IST 2017 10 of 21 C/SCA/1369/2017 ORDER i.e. without inquiring the correctness of any such allegation made by some third party and without offering an opportunity to the Petitioner to explain the correct position. Thereupon, if Petitioner could not explain the correct position or the position that may be different from the position as presumed by the Respondent No.2, then, in that case, Respondent No.2 may refuse the recognition, but not otherwise. Both the Respondents have in their affidavit in reply contended that for the family dispute between the family members of the landlord of the School premises, a civil litigation is pending and, therefore, Respondents have presumed that landlord who has executed a rent deed in favour of the Petitioner does not have authority to do so and, thereby, it is to be presumed that Petitioner does not have the property in their control to run such School. Therefore, one thing is certain that there may be a dispute regarding ownership of any property but the at the same time, the fact remains that in passing of any prohibitory order by any competent Court if any person is holding the property as coowner and if he has agreed to hand over the possession to the Petitioner, then, 3rd party cannot say that the Petitioner does not have right to occupy Page 9 of 19 HC-NIC Page 11 of 21 Created On Sun Aug 13 05:25:46 IST 2017 11 of 21 C/SCA/1369/2017 ORDER and use the property. If at all, there is any prohibitory order of the Civil Court, then, Respondents should have come forward with such details but when they have simply disclosed the pendency of Civil Suit, pendency of Civil Suit alone can never be considered as a ground for refusing recognition of a School to the Petitioner considering the fact that Petitioner was running a grantinaid School in the same premises for number of decades. It can also not be ignored that for whatever reason though recognition of Navrang high School was cancelled, Navrang high School was getting grantinaid and allegation against that School is with reference to such grant whereas, at present, Petitioner, though it is the same trust, which was running Navrang high School has prayed for recognition of nongranted School and, therefore, there could not be any more control over such School by the Respondents or any authority except by exercising their powers under the Statute.
9. Whereas, if we scrutinize the record, factually also, the contention of the Respondent is having no substance when Petitioner was able to confirm on record that Page 10 of 19 HC-NIC Page 12 of 21 Created On Sun Aug 13 05:25:46 IST 2017 12 of 21 C/SCA/1369/2017 ORDER infact the person who has entered into rent deed with the Petitioner is having legal rights to do so and, therefore, only because of his dispute with coowners, it cannot be said that Petitioner does not have the School premises for running the School. It cannot be ignored that a School was already running at the same premises and, thereby, there is no other issue except internal dispute of the coowners in getting their share. However, that would not debar the Petitioner from getting recognition in its favour which would be subject to other conditions and fulfillment of criteria of providing other requisite facilities.
10. Therefore, there is no substance in the first ground that Petitioner is not holding the building and land in question to run the School as such. However, this observation is tentative and it would be open for the Respondents to prove the fact on record so as to confirm that Petitioner does not have the requisite control over the building and the plot to be utilized as play ground. However, till then, it cannot be said that only on such ground, recognition can certainly be refused forever. It is necessary for the Respondents to invoke the provisions of Page 11 of 19 HC-NIC Page 13 of 21 Created On Sun Aug 13 05:25:46 IST 2017 13 of 21 C/SCA/1369/2017 ORDER Government Resolution dated 4.8.2011 for relaxation of any such technical condition and to take appropriate decision in accordance with law that why Petitioner is not entitled to relaxation on such ground. Absence of such decision would certainly result into discrimination and arbitrariness.
11. Similar is the situation so far as availability of requisite area of open land for playground is concerned. As already discussed hereinabove, at the stage of admission and considering the interim relief, discussing the available material evidence on record in detail, may result into prejudice to either side for final determination of the matter and, therefore, though minute details and all relevant reasons for determination may not be discussed and disclosed at this stage, it cannot be ignored that on such issue also, when Petitioner was able to point out the discrimination, Respondents have tried to hide and seek and to evade hearing of this matter at the earliest. Even after repeated request by the Petitioner and even after the application under RTI and even after order dated 28.4.2017 by this Court, calling upon the requisite information, Respondent No.2 has failed to disclose the Page 12 of 19 HC-NIC Page 14 of 21 Created On Sun Aug 13 05:25:46 IST 2017 14 of 21 C/SCA/1369/2017 ORDER requisite information so as to confirm that how several Schools with less areas of play ground are functioning in the same city and State. Thereby, it is quite clear and obvious that though Respondents were called upon to disclose all such facts supported by documentary evidence by order dated 28.4.2017, the Respondents have tried to hide the requisite information from this Court and they have not disclosed the details of the Schools to whom recognition is granted after the year 2011 and where relaxation was give pursuant to Government Resolution dated 4.8.2011.
12. Learned advocate Mr.A.D. Oza for Respondent No.2 has taken a stand that if at all there is no proper disclosure by them pursuant to an application under RTI, then, Petitioner may file an appeal under RTI Act challenging such nondisclosure but it cannot be considered as a ground to grant any interim relief or any other prayer in favour of the Petitioner. Thereby, practically, Respondent No.2 agrees that they may act as per their whims but nobody shall call for such information. If it is so, then, there is no option but to invoke the principle of adverse inference against Respondent No.2 because Page 13 of 19 HC-NIC Page 15 of 21 Created On Sun Aug 13 05:25:46 IST 2017 15 of 21 C/SCA/1369/2017 ORDER Respondent No.2 has failed to comply with the order dated 28.4.2017 in its true perspective. On the contrary, it is expected from public body like Respondent No.2 to be more fair and transparent in their administration and decision making process and to disclose all requisite information before the Court irrespective of its demand either by the Petitioner or by the Court. He has further contended that application under RTI is filed after Respondents have taken decision and, therefore, such information was never before the authority and, therefore, it cannot be said that authority has acted arbitrarily. On the contrary, such submission goes against the authority, inasmuch as, while deciding any such application, it is the duty of the authority to see that there is no discrimination and to see that how previous applications have been dealt with. Therefore, only because information under RTI is sought for on a date later than the date of impugned order, it cannot be said that act of Respondents is valid when it is discriminatory.
13. Therefore, when Respondent No.2 has not disclosed the requisite information and when information disclosed by Respondent also Page 14 of 19 HC-NIC Page 16 of 21 Created On Sun Aug 13 05:25:46 IST 2017 16 of 21 C/SCA/1369/2017 ORDER confirms that though all the Schools approved by Respondent no.2, list of which is produced at page nos.113 to 119 on record of Special Civil Application No.1370 of 2017 does not have all the requisite infrastructure and facility and sufficient area of play ground recognition of such Schools are granted by Respondent No.2, then, this is clear case of discrimination and arbitrariness by Respondent No.2 in refusing recognition to the Petitioners.
14. In view of above facts and circumstances, at this stage, when it is well known fact that there is scarcity of Schools in such areas and when Petitioner is trying to start a new School in the premises which was otherwise utilized as a School, only because of reasons stated by the Respondents in their affidavit in reply and impugned order, it seems that refusal of recognition to start a School to the Petitioner is nothing but the discrimination and arbitrariness by the Respondents and, therefore, to see that students of the Navrang High School which has been closed, may not have to suffer in absence of School, it would be appropriate to grant some interim relief in favour of the Petitioner which is virtually in favour of Page 15 of 19 HC-NIC Page 17 of 21 Created On Sun Aug 13 05:25:46 IST 2017 17 of 21 C/SCA/1369/2017 ORDER the students of Navrang high School which is now closed because of cancellation of its recognition. It is also clear and obvious that irregularities, if any, by any such previous School cannot result into refusal of recognition to new School in the same premises. But allowing the School would result into difficulty to the students since with the same facility previous School was running and its recognition is not disturbed on such ground.
15. Petitioner is also relying upon the regulations for such recognition of School, more particularly, regulation No.9(13) which provides that where the requirements in respect of buildings, laboratory, library, furniture, equipment, stationery and other articles for conducting registered Schools and equipment of a Secondary School cannot be complied with by any applicant for registration of a School, the applicant may specify in full details; the special circumstances, reasons or local conditions on account of which such deficiency or deviation from the standard requirement may be condoned. After such provision, there are in all six conditions, but with similar proviso that the Executive Committee may, in special Page 16 of 19 HC-NIC Page 18 of 21 Created On Sun Aug 13 05:25:46 IST 2017 18 of 21 C/SCA/1369/2017 ORDER circumstances allow the registered School to admit students in excess of the limit laid down in such clause and relax the requirement regarding area of play ground. Whereas, proviso to Rule (14) of Rule (9) specifically confirms that the Executive Committee may relax any of the requirement specified in this regulation in special circumstances of a registered School on the merits of its case. Therefore, when regulations permits the mode of relaxation, it would be appropriate for the Respondents to allow the Petitioner to represent its case before such Executive Committee and it is statutory duty of the Executive Committee to decide such issue in accordance with law.
16. In view of above facts and circumstances, when matter requires consideration, let there be a RULE, returnable on 5.9.2017 considering the same facts and circumstances which are disclosed and discussed hereinabove, it would be appropriate to grant some interim relief in favour of the Petitioner, whereby, Respondents are directed to grant provisional recognition to the Petitioner - Schools for opening non granted Secondary School for standard 9 and 12 but with the following conditions;
Page 17 of 19HC-NIC Page 19 of 21 Created On Sun Aug 13 05:25:46 IST 2017 19 of 21 C/SCA/1369/2017 ORDER [A] The Petitioner shall comply with all the criteria regarding requisite infrastructure and requirement as per Rules;
[B] If there is any deficiency or short fall in any infrastructure or requirement then Petitioner shall apply before the Committee of Respondent No.2 as per Government Resolution dated 4.8.2011 for necessary directions regarding relaxation of any such short coming if at all it is so permissible;
[C] The Committee shall decide such request within two weeks from the date of reference to it but purely based upon the facts and circumstances and in accordance with law whereby without being influenced by present order but it has to ensure that there should not be any discrimination or arbitrariness in their decision. The committee shall be careful in rejecting such request since there is prima facie evidence to prove that other Schools are recognized with less facility and play ground.
17. It is made clear that during the period of provisional recognition, Respondents should scrutinize and verify the activities by the Page 18 of 19 HC-NIC Page 20 of 21 Created On Sun Aug 13 05:25:46 IST 2017 20 of 21 C/SCA/1369/2017 ORDER School and if at all it is found that the School is not functioning in accordance with law and Rules, then, Respondents may initiate appropriate proceedings for cancellation of recognition but it should be done in accordance with law and Rules only after offering a reasonable opportunity to the Petitioner to represent its case.
Direct Service is permitted.
(S.G. SHAH, J.) * Kotecha Page 19 of 19 HC-NIC Page 21 of 21 Created On Sun Aug 13 05:25:46 IST 2017 21 of 21