1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 70 OF 2009 Forum for Fairness in Education & Anr. ... Petitioners. V/s. New Era School & Ors. ... Respondents. Mr. M.M. Vashi i/b. Rahul Thakur for the Petitioners. Mr. Janak Dwarkadas a/w Kevik Setalwad & Sharan Jagtiani i/b. Mulla & Mulla for Respondents 1 and 2. Mr. V.S. Masurkar, GP for State. Mr. K.K. Singhvi a/w. Ms. Geeta Joglekar for BMC. ALONGWITH O.S. WRIT PETITION (LODG.) NO. 701 OF 2009 Kalpesh R. Sanghvi & Ors. ... Petitioners. V/s. State of Maharashtra & Ors. ... Respondents. ALONGWITH O.S. WRIT PETITION (LODG.) NO. 1242 OF 2009 Mrs. Malti Renjen & Ors. ... Petitioners. V/s. State of Maharashtra & Ors. ... Respondents. 2 Mr. M.M. Vashi i/b. M.P. Vashi & Assoc. for the Petitioner in WPL 701 of 2009. Mr. K.K. Singhvi a/w. Ms. Geeta Jogalekar for BMC. Mr. Janak Dwarkadas a/w. Kevic Setalvad and Sharan Jagtiani i/b. Mulla & Mulla for Respondent No.7 and Petitioner in WPL 1242 of 2009. Ms. Geeta Shastri, AGP for State in WPL 1242 of 2009. Ms. S. Sreedharan, AGP for State in WPL 701 of 2009. CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J. DATED : 07th JULY, 2009. P.C. :- Rule in P.I.L. No. 70 of 2009, Writ Petition (Lodge.) No.701 of 2009 and Writ Petition (Lodge.) No. 1242 of 2009. All Respondents waive service. By consent Rule made returnable forthwith. 2. By this order we shall dispose of PIL No.70 of 2009 with Writ Petition (Lodg.) No.701 of 2009 and Writ Petition (Lodg.) No. 1242 of 2009. 3. The First Petition in the point of time is a PIL filed by Forum for Fairness in Education and Ors. with a prayer that Respondent Nos. 1 and 2 in that Petition be ordered and directed to conduct SSC curriculum school in the present location and in the existing school building. 4. Writ Petition (Lodg.) No. 701 of 2009 is filed seeking a direction to Respondent Nos. 1 to 5 in that Petition not to grant 3 any permission to shift the school to the new location without giving hearing to the Petitioners. 5. During the pendency of the P.I.L. and Writ Petition No.701 of 2009, the third Petition was filed. As is evident from the prayers made in these two Writ Petitions the controversy revolves around a very narrow position. The New Era School which is being run at 17th, N.S. Patkar Marg, Gowalia Tank, Mumbai – 400 007 was intended to be shifted to D.N. Road, V.T., Mumbai. According to the Management of the School, it was necessitated because the building was in a dilapidated condition and in the interest of students as well as from the safety point of view, it was necessary to shift the school if not permanently atleast temporarily and after re-constructing the building on Plot No.17, the school would come back to the same premises. This had been objected to by the Petitioners in these two Writ Petitions as well as was not permitted by the Director of Education. When these Writ Petitions came up before the Court and there was serious dispute with regard to condition of the building, the Court on 1st July 2009 passed the following order :- “ When this case was taken up in the earlier part of the day, photocopy of the Minutes stated to have been prepared by the parties present at the school premises on 13th June, 2009 was placed on record. 2. Now subsequently and after receiving the copy of the Minutes, it has been pointed out by the learned Counsel appearing for the Petitioners in Writ Petition (L) No.1242 of 2009 that the line “there appears to be no objection to run the school in this building for the time 4 being” was not originally in the Minutes and the same has been introduced subsequent to the preparation and signing of the Minutes by all the signatories to the Minutes. 3. S/Shri V.A. Vaity and P.P. Patil are present in the Court. Both are the Government servants. Shri Patil has stated that the statement made by the learned Counsel appearing for the Petitioner – School is factually correct and this line has been introduced at a subsequent stage. 4. It is a matter of serious concern. The Executive Engineer of the Corporation knew it that this document is going to be produced before the Court as the report of the Committee and is to be relied upon by the Court while passing any order. This admission is inserted in the Minutes knowing that the Petitioners in Writ Petition (L) No.1242 of 2009 have approached the Court praying that they are not prepared to run the school in the said premises as it is structurally not advisable and is likely to expose the children to danger of life. Of course, this stand was not accepted by the other party. The fact of the matter is that they are introducing this line in the report of the Committee knowing that this statement will be binding on the school when in fact the statement is never intended to be made by the School. Thus, it is apparent that there is interpolation and tampering of documents during the proceedings pending before the Court and in the report which was prepared under the direction of the Court with full knowledge that such report is going to be relied upon by the Court while passing any order. 5. In these circumstances, we issue notice to Shri S.C. Shintre, Executive Engineer, Building Proposal, C-1 of Municipal Corporation, to show cause as to why proceedings under the provisions of Contempt of Courts Act read with Article 215 of the Constitution of India be not initiated against him. Further he should also show cause as to why the Court should not direct lodging of criminal prosecution against him for committing perjury before the Court during the proceedings pending before 5 the Court. The notice shall be served upon him by the Registry without Bhatta. The learned Counsel appearing for the Corporation is directed to inform the said Executive Engineer to be present in the Court on the next date of hearing. 6. Now effect of the report on its merits needs to be noticed. It is seen that the Committee has not performed the duties as contemplated under the directives of the Court, in its full spirit. All they have indicated is that further time is needed to express a definite opinion. We hardly find any justification in this approach of the Committee because when they went for inspection they were provided with all the copies of the report filed by the Petitioners in support of their contention and they knew what job they were expected to perform. Be that as it may, in view of the callous attitude adopted by the concerned officers, we direct the Deputy Director of Education, who shall be the Chairman of the Committee consisting of himself and two Engineers, excluding Shri S.C. Shintre. Shri D.S. Joshi, Structural Engineer of the Corporation shall be member of the Committee or the Structural Engineer who had already visited the site or any other Structural Engineer nominated by the Corporation of high repute. The Committee to visit the building of the school in question at 11.00 a.m. tomorrow i.e. 2nd July 2009. One representative of the School viz. Shri Manish Rathi and one representative by name Shri Prashant Dani on behalf of the Parents’ Association will be present during inspection of the Committee but will not interfere in the working of the Committee. Whatever tests or other acts which the experts wish to perform, they shall perform when the inspection is conducted till it is concluded. The Deputy Director of Education shall thereupon submit report to this Court and all the members of the Committee as well as the Deputy Director of Education shall remain present in Court on the next date of hearing. These directions are issued in order to ensure compliance of the Order of the Court and particularly keeping in view the fact that admission of the children and timely commencement of the course is of paramount consideration for the Court. All concerned 6 Government Officers shall personally be responsible for compliance of the order of the Court. 7. S.O. to 7th July 2009.” 6. This order was passed after the Writ Petition (Lodg.) No. 1242 of 2009 had been filed by the Management of the School and it questioned legality and correctness of the order passed by the Deputy Director of Education, Mumbai on 24th June 2009 which reads as under :- “ The decision can be taken after receiving the recommendation of the aforesaid committee. It is the opinion of this office that the decision for shifting of the institution will be appropriate only after seeking recommendations. If it is recommended that the said building is dangerous then, the temporary shifting of the school should be allowed. But, after redressing the grievances about new building and after repairing of the original building or constructing the school at the original place will be entirely the responsibility of the Management. For that the Management should be given specific time frame.” 7. As is evident from the last paragraph of the order impugned in the Writ Petition, the Deputy Director of Education was not certain as to whether he would permit the shifting of the school temporarily and/or permanently. Keeping in view the averments made in the Writ Petition that it was not safe to run the school at the existing place and in furtherance of the order passed by this Court, the Committee had appointed one Mr. D.S. Joshi of M/s. Joshi Consultant and Structural Engineers, nominated by the Corporation, as the expert consultant. He 7 submitted the report to the Deputy Director of Education on 6th July 2009. In this report, it was finally concluded that after discussion, inspection of the various aspects relating to structure and result of the site inspection in question, site the consultant concluded as under :- “ This structure need not be demolished on any of the basis of the points discussed here in above as it is structurally sound & stable after having undergone major structural repairs under the guidance and supervision of a competent structural engineer.” 8. After this opinion was forwarded to the Deputy Director of Education, he filed his letter dated 7th July 2009, stated as under :- “ After going through the Structural Stability Report and letter dated 6th July 2009 of BMC it is clear that the structure at present requires no demolition as the said structure is sound and stable as the same had recently undergone major structural repairs under the guidance and supervision of Competent Structural Engineer. In view of the technical report of Structural Stability of existing building of New Era School and confirmed by the Office of the Chief Engineer, BMC by letter dated 6th July, 2009, the said existing building of the New Era School is safe and sound for the purpose of being run for the Academic Year 2009-2010.” 9. The report of the Deputy Director of Education was not clear as he did not pass appropriate orders in what the law required him to do. It was not necessary for him to just refer to the report and structural stability of the building, the matter 8 was to be examined by him from the point of view of allowing or disallowing the request of the management for shifting the school on permanent or temporary basis. However, as concerned Deputy Director of Education was present in Court, we have raised the query to the learned Counsel appearing for the State and he stated after obtaining instructions in Court that on the basis of the structural stability of the building and the report, he would not grant permission to the school to shift permanently or temporarily at this stage. 10. The learned Counsel appearing for the Petitioner in Writ Petition (Lodg.) No.1242 of 2009 argued that the report of the Consultant (member of the Committee) is factually not correct and in fact has been prepared without performance of any technical test which would justify such conclusion and in any case to meet the issues and opinion raised by the consultants of the Petitioners in their respective reports which had declared the building requiring re-construction and had doubted the structure stability of the building. In this regard, reference has been made to the various reports which as stated were submitted to the Education Department and copies thereof have also been placed on the file of the Court. On the contrary, it is contended on behalf of the Petitioners in two other Writ Petitions as well as the learned Counsel appearing for the State that the report prepared by the Committee is just and fair and truly describes the present structural position of the building and the Deputy Director is fully justified in not permitting the school to shift from the existing location. 9 11. It is a settled principle of law that the Court would not sit as a Appellate Authority or exercise and examine either of the reports so critically as to come to a conclusion whether one report or the other is correct or incorrect. It is to be seen in the facts and circumstances of each case. In the case in hand, the Committee was constituted by the Court and majority consisted of public servants. Their day today business related to verify structural stability of the construction and the matter was referred to the Expert Committee, the Corporation was directed to appoint a consultant so as to bring the correct facts before the Court and to avoid injustice to these Petitioners. Of course, it was expected that the consultant performs such technical test as were required to be performed before submitting the report but that would not vitiate the report submitted by the consultant. The report is based upon not only visual examination but to some extent on the expert’s opinion which in the wisdom of the committee was correct and that the structure stability of the building is not adversely affected. Another factor that the Court has to take into consideration is that when the application was moved by the management of the school to the Deputy Director, then, it had specifically stated on 26th November 2008 for permission to shift the school. The letter itself open with the following :- “We wish to submit that our present school building is 77 years old . Many class rooms require immediate repairs and renovation. The Structural Engineer has also given report stating that sooner or later the building will need massive repair and refurbishing. We need to strengthen the pillars and repair ceiling of the school building for better strength.” 10 12. This is the first application of the school management which clearly depicts their needs. It is not disputed that Deputy Director’s permission is necessary for shifting the school and pursuant to that requirement the application was made. When did the need arose for demolishing the building and raising a new construction on the same plot is a matter which developed over a period of time and upon submission of the expert report of the Architect or Structural Engineers who were consulted by the Petitioners. In the documents submitted alongwith application dated 27th November 2008, no report was submitted with regard to the structural stability of the building. We may also notice here similar request was also made by the letter of the school management dated 4th December 2008. One M/s. Mahimtura Consultant Pvt. Ltd., Consulting Engineers for the first time vide letter dated 27th December 2008 raised the plea with regard to construction defects of the building and renovation of the building and reconstruction at the same spot. Its no way evident from the record before us as to what happened between 4th December and 29th December 2008 so as to justify the request of the Private Company to shift the school, which was submitted to the Deputy Director of Education. 13. Even in the report prepared by one M/s. Orbit Construction supposedly at the request of the School Management, in the conclusion it was stated that after survey and solving the problem, alternatives were suggested to 11 strengthen the building structure for duration minimum by 20 to 25 years. This report thus also did not indicate the need for reconstruction of the building and consequently essential for the school to be shifted to another place. 14. Though there is some contradictions stated in the reports submitted by the respective Architects or Structural Engineers on record of the Court, we do not think it necessary to examine all the objections raised to these reports for the purpose of dealing with the present Writ Petitions. We would prefer to rely upon the report submitted by the Committee constituted by the Court rather than any private Structural Engineer or Architect. Acting on the report of the experts, the Deputy Director has passed an order dated 7th July 2009 and has also expressed his views in open Court. This view of the Deputy Director can hardly be faulted as the principal ground taken by the management of the school initially was to shift the school temporarily for conducting repairs at the existing location and thereafter to re-shift the school later on or the shifting at least for a considerable time if not permanently, if the building is to be demolished and reconstructed. It is a matter where we cannot hold that the Deputy Director’s view is arbitrary, unreasonable or is without any reasonable basis. A discretion has been vested in this Authority which has to be exercised in accordance with the settled principles of administrative jurisdiction. We are not inclined to examine this view as an Appellate Authority but would leave the matter of the discretion to the authority. This is one aspect of the matter. 12 The other question which will arise would be in Public Interest Litigation No.70 of 2009, where the prayer made before the Court, that the school management should be directed to conduct the academic course. It may not be a result but a logical conclusion of the Deputy Director’s order of 7th July 2009 would be that the school would have to continue at the existing location, unless otherwise directed by the Competent Authority. It is not disputed before us that the school management in the interest of all concerned has spent considerable amount recently on repairs of the school building. 15. In view of above discussion, we make Rule in P.I.L No. 70 of 2009 and Writ Petition (Lodg.) No. 701 of 2009 absolute with the direction that the school shall continue to run at the existing location unless otherwise directed by a competent or an Appellate Authority which is competent to deal with the order of the Deputy Director dated 7th July 2009. We dismiss Writ Petition (Lodg.) No.1242 of 2009, however, with a clear observation that it is left open to the management to approach the Competent Authority for any further relief in accordance with law. 16. Liberty to the management to approach the Deputy Director. The order in question is stayed for a period of one week from today. We make it clear that after the expiry of one week, this order shall stand vacated without any further reference to the Court. 13 17. In view of the affidavit filed by the Noticee, Mr. S.C. Shintre, Executive Engineer, Building Proposal, C-1 of Municipal Corporation and Ms. Shastri stating that Mr. P.P. Patil had given instructions to Mr. Shintre, the learned Counsel prays time of two weeks. Issue Contempt Notice returnable after two weeks in the main Writ Petition to Mr. P.P. Patil, Asstt. Director of Education who states that he had given instructions to Mr. Shintre. 18. Parties to act on authenticated copy of this order. CHIEF JUSTICE S.C. DHARMADHIKARI, J.