SCA/8237/1999 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8237 of 1999 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 ? ========================================================= OMKAR CHARITABLE TRUST - Petitioner(s) Versus STATE OF GUJARAT & 7 - Respondent(s) ========================================================= Appearance : MR BM MANGUKIYA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1,3 - 8. MR AD OZA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 06/05/2008 ORAL JUDGMENT 1. The short facts of the case appears to be that the petitioner Trust was permitted to open SCA/8237/1999 2/4 JUDGMENT primary school in the year 1995. As the petitioner wanted to start secondary section, it had submitted the application to the respondent No.2 in October 1997 and it is the case of the petitioner that No Objection Certificates were also issued by the adjoining schools. Thereafter, the respondent Board considered the matter but the case of the petitioner is that there is no bonafide exercise of the power. Ultimately, the decision has been taken by the respondent Board whereby, the application of the petitioner is rejected. The petitioner preferred Appeal against the decision of the Board before the State Government which also came to be rejected by the State Government vide order dated 25.05.1999 and it is under these circumstances, the present petition before this Court. 2. The perusal of the order passed by the State Government, appellate authority, shows that the ground which has weighed to the appellate authority for rejecting the appeal are that there are only 3 rooms available and therefore, the appeal deserves to be dismissed. However, from the affidavit-in-reply filed on behalf of the Board, the grounds for rejection of the application of the petitioner are that there is no necessity for the new school and the another is that there is no sufficient feeding area for the school and therefore, it was opined by the SCA/8237/1999 3/4 JUDGMENT Board that there are likelihood of no sufficient students available in the School and therefore, the permission was not granted. The aforesaid ground as considered by the Board as well as by the State Government cannot be said to be non- germane to the exercise of the power and therefore, it cannot be said that the power is exercised in an arbitrary manner. 3. Apart from the above, the matter cannot be considered on the basis of the position as was prevailing in the year 1999. Therefore, the impugned decision taken by the State Government confirming the decision of the Board cannot be said as illegal or arbitrary. 4. The learned counsel for the petitioner lastly submitted that the petitioner may be put to liberty of making application for opening of secondary section. 5. In my view, such is not prohibited even by the Board nor by the State Government. Further, even if such permission is to be granted, the position as prevailing including that of the facility available and the requirement and the sufficient strength of the student will have to be considered by the Authority. Therefore, if such an application is made by the petitioner, the same shall be examined in accordance with law by the Board as per the position prevailing now, i.e., on the date of the fresh application. SCA/8237/1999 4/4 JUDGMENT 6. In view of the above, subject to the aforesaid observations petition fails. Rule discharged. No order as to costs. (JAYANT PATEL, J.) *bjoy