SCA/6548/1992 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6548 of 1992 With SPECIAL CIVIL APPLICATION No. 14076 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NUTAN KELVANI MANDAL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR ND NANAVATI for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, 3, MR AD OZA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 02/04/2008 ORAL JUDGMENT 1. SCA No. 6548 of 1992 is preferred by the school for challenging the resolution No. 225 of 1992 of the Board for cancellation of the SCA/6548/1992 2/9 JUDGMENT registration. The principal grievance in the present petition is that board has exercised the power on the ground, which was not part of the show-cause notice namely, of the District Court Bhavnagar, granted stay order in the litigation between landlord and the school management. Therefore, registration has been cancelled. This Court when considered the matter for first time, had granted interim relief staying the operation and implementation of the decision of the board. Hence, impugned order has not been implemented, so far as it relates to the aforesaid exercise of the power by board for de-recognising the school, in purported exercise of the power under Section 31(9) of the Gujarat Secondary Education Act 1972 (hereinafter referred as to the 'Act'). 2. It appears that pending the petition, the school management wanted to shift the school premises on the ground that building was in dilapidated condition, and it is the case of the petitioner that on account of the emergent situation which arose in the earthquake in the year 2001, it had to shift the premises, anticipating permission SCA/6548/1992 3/9 JUDGMENT to be granted by the board. Thereafter, the permission to shift premises was not granted and this Court vide order dated 20.3.2002 in SCA No. 4562 of 2000 had observed as under: “Having heard both the sides, I am of the view that when on account of unsafe atmosphere, if the school is shifted, it cannot be said to be a ground to reject the application. The petitioner with a view to avoid unforeseen incident has as an emergency measures taken decision to shift the premises. It should not come in the way of petitioner to apply for grant of permission to shift the school nor the board should consider the said aspect as disqualification or hurdle in considering the application of the petitioner.” 3. It was also further observed as under: “I am of the view that in a matter like this, respondent board should also take a pragmatic view more particularly, because, the safety of the students who are studying in the said school are of the paramount consideration.” 4. Ultimately after observing the aforesaid, direction was given to decide the matter, SCA/6548/1992 4/9 JUDGMENT keeping in view the observation made by this Court. 5. It appears that thereafter, the matter once again came up to be considered by the board, and vide order dated 13.8.2003, the board rejected the proposal of the petitioner to shift the premises. 6. Under these circumstances, the petitioner has once again approached to this Court by preferring SCA No. 14076 of 2003. Even, in the said petition this Court when considered the matter, for the first time, had granted interim relief of maintenance of the status-quo and thereafter, the said interim relief was continued with the further, when the matter came to be admitted. As a result thereof, the school is functioning even as on today. 7. I have heard Mr. N.D. Buch for Mr. N.D. Nanavati learned Counsel for the petitioner in SCA NO. 6548 of 1992, Mr. J.D. Ajmera learned Counsel for the petitioner in SCA No. 14076 of 2003, Mr. A.D. Oza learned Counsel for the respondent board in SCA No. 14076 of 2003 and SCA 6548 of SCA/6548/1992 5/9 JUDGMENT 1992 and Ms. Trusha Patel learned AGP for the State Authority in SCA No. 6548 of 1992. 8. Upon hearing learned Counsel appearing for the petitioner and Mr. A.D. Oza learned Counsel for the Board, it appears that as per the case of the petitioner, there is no irregularity and on the contrary, the present building, at which the school has been shifted, is most suitable for the purpose of running school and at the ground floor, the school board of Municipal Corporation, Bhavnagar is running Primary School. It is the contention of the petitioner that the board has not properly examined the matter in right spirit and therefore, this Court may set aside the decision of the board. 9. Whereas on behalf of the respondent-board it is the contention that there are so many shortcomings in meeting with the standard requirement of running school by the petitioner and therefore, the board had no option but to reject the proposal of shifting of the school. 10.Prima facie, it appears that while passing the impugned order, the board did consider the SCA/6548/1992 6/9 JUDGMENT aspect of raising dispute by the school before this Court in SCA No. 4562 of 2000, and the observations are that the school management tried to misguide this Court in the proceeding of the SCA No. 4562 of 2000. The aforesaid approach on the part of the board cannot be countenanced by this Court. Once the proceedings of SCA No. 4562 of 2000 are concluded, and this Court on the contrary deprecated the approach on the part of the board, by making expressed observation as referred to hereinabove, it was required for the board to keep itself away from examining the merits and demerits of the order passed by this Court, and it was expected for the board to consider the order, as it was and being binding to it and no comments or the observations were required to be made by the board, pertaining to the parties to the proceedings of SCA No. 4562 of 2000 rather concerning to the said litigation. 11. It appears to the Court that had the proposal rejected only on the aforesaid ground, that the matter could have been examined by this Court, SCA/6548/1992 7/9 JUDGMENT but it appears that in addition to the above, there are other ground mentioned for rejection of the proposal, and they are narrated as from paragraph 8 to 12 in the impugned order. It also appears that pursuant to the order passed by this Court, there was re-inspection of the premises, and the report is not the same as found by the board in the impugned order. 12.Under these circumstances, it would be just and proper that the matter is considered independently by different authority, and preferably authority higher than the board, by examining factual position on site, if required after having further inspection of the site, and then to consider the matter as per the provisions of Section 31(6) of the Act read with the regulation. The board while granting permission to shift has to follow the procedure preferably, as required for granting of the registration. Therefore, impugned order can be said as in purported exercise of the power under Section 31(6) of the Act for grant of permission to shift premises. As per inbuilt mechanism of SCA/6548/1992 8/9 JUDGMENT the act, against the decision of the board under Section 31(6) of the Act, or even 31(9) of the Act for de-recognition the appeal lies to the State Government. Therefore, I find that it would just and proper to refer the matter to the State Government for examining all the relevant aspect, and to take appropriate decision for grant of permission to shift school premises or otherwise. 13.In view of the above, following directions shall meet with the ends of justice: a) The Secretary Education Department shall examine the matter in light of the observations made hereinabove, and after considering the record which is produced in the present petition as well as the material and the record which may be produced by the petitioner and the board. b) The State Government shall be at the liberty to get re-inspection of the premises, at which the school is shifted for asserting as to whether requirement for running school are satisfied or not. c) The State Government shall pass appropriate SCA/6548/1992 9/9 JUDGMENT order after giving opportunity of hearing to the petitioner as well as to the representative of the board as early as possible preferably, within a period of three months from the receipt of the order of this Court. d) Until the decision is taken by the State Government, and the same is communicated to the petitioner by RPAD post, the interim relief granted by this Court in the present petition shall continue to remain in operation. 14.The petitions are partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. Direct service is permitted. (JAYANT PATEL,J.) Suresh*