Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 448 (GUJ)

Podar International School v. State of Gujarat

2020-03-12

A.J.SHASTRI, VIKRAM NATH

body2020
JUDGMENT : Vikram Nath, J. 1. In all the above matters, we have heard Shri Mitul Shelat along with Ms. Disha Nanavaty, learned counsels for petitioners, Shri J.K. Shah, learned Assistant Government Pleader for the State respondent and Shri Mit Shah, Advocate for Shri A.D. Oza, learned counsel for respondent- Gujarat Secondary & Higher Secondary Education Board. 2. As the issue involved in all the three writ petitions relates to the benefit which has now been extended by an amendment made in the respective rules relating to primary, basic and secondary institutions, and the requirement of the requisite area to be not in the ownership of the Trust/Society establishing the school but where the same is on long term lease/rent for a minimum period of 15 years or more, as such, we have taken up all the three Special Civil Applications together. 3. The facts relating to all three petitions in brief are mentioned here under: SPECIAL CIVIL APPLICATION NO. 6168 OF 2019: 3.1 The petitioner Trust in this petition acquired basic infrastructure for establishment of a primary school. At the time when the application was made by the petitioner Trust, Rule 106(7)(iv) of the Bombay Primary Education (Gujarat Amendment) Rules, 2019 made a provision that the land for playground and school building should be in the ownership of the school management, be it a Trust or a Society. Prior to the aforesaid amendment, the requirement was that the land for playground and school building could be on a long term lease/rent. The petitioner having made application as per the earlier provision, i.e. by way of procuring land on long term lease/rent, filed Special Civil Application No. 6168 of 2019 challenging the vires of the said provision brought about by the Amendment Act of 2019 as notified on 22nd February, 2019. After hearing the learned counsels for the parties, Division Bench of this Court, vide order dated 7th May, 2019 granted interim relief to the extent that the application of the petitioner, if otherwise, fulfills the requisite criteria, ignoring the requirement of ownership, be considered and accordingly, the Court allowed the petitioner to open a primary school for Classes 1 to 5 and Classes 6 to 8 in English medium, however, the Court observed that such permission would remain subject to final outcome of the appeal. Paragraphs 5 and 6 of the interim order dated 7th May, 2019 passed by Division Bench of this Court in the aforementioned petition being the operative portion, are reproduced below: "5. Having regard to the facts and circumstances of the case and perusal of the record viz-a-viz Gujarat Primary Education Rules of which vires are challenged, Rule 106(7)(iv) of the Bombay Primary Education (Gujarat Amendment) Rules, 2019, construction of school building, 30 years of lease deed contained therein and open area available for playground which meet with the requirement read with last proviso to clause (iv), we are of the view that the petitioner trust fulfills all requirement barring the ownership of the school buildings and playgrounds at both the places Veraval and Surat. Execution of lease deed if considered in the context of right and liability accrued, absence of ownership in any manner will not jeopardize any administrative and/or regulatory measure to be taken by the respondents if otherwise the petitioner trust fulfills requisite criteria and accordingly till final disposal of this petition now fixed on 22.08.2019, we are inclined to allow the petitioner to open the school for classes 1 to 5 and 6 to 8 Primary section in English Medium. 6. Learned Assistant Government Pleader would submit that amount of lease rental are in the context of lease deed executed between lessor and lessee and fees to be charged and regulated by fee regulatory committee in accordance with the acts and rules made there under etc shall have independent consideration. Such permission as prayed for to open classes 1 to 5 and 6 to 8 English medium shall be subject to final outcome of the appeal." 3.2 In terms of the interim order dated 7th May,2019, the petitioner has commenced primary school and presently there are 297 students studying at Veraval and 321 students studying at Surat as per the statement of learned counsel for the petitioner. It is submitted by Shri Mitul Shelat, learned counsel for petitioners that apart from the ownership issue, all other requirements for opening of a new primary school were fulfilled as recorded by the interim order dated 7th May, 2019. SPECIAL CIVIL APPLICATION NO. 10183 OF 2019: 4. The petitioner in this petition runs a primary school from Classes 1 to 5 under an order of the Competent Authority dated 20th April, 2018. SPECIAL CIVIL APPLICATION NO. 10183 OF 2019: 4. The petitioner in this petition runs a primary school from Classes 1 to 5 under an order of the Competent Authority dated 20th April, 2018. In order to commence teaching of Classes 6 to 8, the petitioners applied for permission, the said request for permission made on 2nd March, 2019 was rejected by order dated 1st June, 2019 by the Competent Authority only on the ground that the petitioner is not the owner of the land of the playground and the school building. The petitioners challenged the said order before this Court by way of Special Civil Application No. 10183 of 2019. A Division Bench of this Court, after hearing the learned counsels for the parties, vide order dated 21st June, 2019, for reasons recorded in paragraph- 7, granted interim relief directing the respondents to the petition to permit the petitioner to impart education to the students of the school from Classes 6 to 8 provided the petitioner otherwise fulfills the requisite criteria, however, the Court observed that such permission would be subject to final outcome of the petition. This petition was directed to be tagged with Special Civil Application No. 6168 of 2019, the operative portion as contained in paragraphs-7 and 8 of the order dated 21st June, 2019 is reproduced below: "7. Having considered the submissions made by learned advocates appearing for the respective parties, reading of the rule indicates the stipulations there under need to be followed when a management proposes to open a new school in the urban area. The facts in the present case indicate that a permission to start standards 1 to 5 and 6 to 8 was already made by the management in the year 2018. Prior to the amendment of the rules and communication dated 22.02.2019 permission for classes 1 to 5 and 6 to 8 was refused. However, by a communication dated 28.04.2018 permission to start classes 1 to 5 was already granted. Appeal to start classes 6 to 8 was pending and what was essentially asked for was to progressively start classes 6 to 8 so that students who are studying in class 5 could gradually secure admissions to the successively higher standards. However, by a communication dated 28.04.2018 permission to start classes 1 to 5 was already granted. Appeal to start classes 6 to 8 was pending and what was essentially asked for was to progressively start classes 6 to 8 so that students who are studying in class 5 could gradually secure admissions to the successively higher standards. It was certainly not a case where the notification dated 22.02.2019 applies in the case of the petitioner because it was an existing school and it was not opening a new school. 8. In the backdrop of such facts, Rule returnable on 22.08.2019. Interim relief in terms of para 9(D) is granted. The respondents are directed to permit the petitioners to impart education to the students of the school from classes 6 to 8 subject to the condition that the school otherwise fulfills the requisite criteria. Permission is granted to impart education to the students as aforesaid till the final disposal of this petition. To be listed for final hearing along with Special Civil Application No. 6168 of 2019." 4.1 According to Shri Mitul Shelat, learned counsel for the petitioners, the petitioners have started Classes 6 to 8 in the school at Himmatnagar, the students who were admitted in Classes 5 earlier were promoted to Class-6 and presently there are 21 students in Class-6 at Himmatnagar and Classes 7 & 8 would also commence upon the academic years of students of Class-6 and thereafter Class-7 would be completed. It is also stated by Shri Shelat that as there were no other deficiencies and all the requirements were fulfilled, the Competent Authority issued the permission. SPECIAL CIVIL APPLICATION NO. 15989 OF 2019: 5. The petitioner in this petition was already running Classes 1 to 5 and Classes 6 to 8 under the respective permissions granted by the Competent Authority vide orders dated 31st March, 2017 and 15th February, 2018 respectively. Pursuant to an advertisement issued by the respondent Gujarat Secondary and Higher Secondary Board dated 19th October, 2018 inviting applications from the institutions seeking affiliation for commencing secondary school (Class-6) and Higher Secondary School (Class-11), the petitioner applied on 20th December, 2018. Pursuant to an advertisement issued by the respondent Gujarat Secondary and Higher Secondary Board dated 19th October, 2018 inviting applications from the institutions seeking affiliation for commencing secondary school (Class-6) and Higher Secondary School (Class-11), the petitioner applied on 20th December, 2018. In the meantime, a Government Resolution dated 29th September, 2018 was issued amending clause 9(5) of the Gujarat Secondary Regulations, 1974, whereby the existing provision for having playground and land over which building was constructed on a long term lease/rent was substituted by requirement of ownership of such land. Since the petitioner's land covering the playground and building was not in its ownership, it had filed Special Civil Application No. 15989 of 2019, challenging Regulation 9(5) of the Gujarat Secondary Regulations,1974 and seeking other ancillary reliefs. In the said petition, notices were issued by order dated 23rd September, 2019 and the said petition was also connected with Special Civil Application No. 6168 of 2019. However, no interim orders were passed in the aforesaid petition. 5.1 In the meantime, the State Government revisited its earlier amendment and by way of new Government Resolution dated 16th September, 2019, by amending clause 9(13)(5), the earlier position of long term lease/rent was restored and the requirement of having ownership of the playground and the land over which construction was made was no longer essential. In such a position, the petitioners preferred Civil Application (For Direction) No. 1 of 2020 for appropriate directions to the respondents to now consider their claim on the basis of the amended provision as brought about vide Government Resolution dated 16th September, 2019. 6. Thus, what we notice in all the above three petitions is that the issue is with regard to playground and the land of the school building, whether it should be in the ownership of the management or the Trust/Society running it or it could be on a long term lease/rent which may be for a minimum period of 15 years or more. Not only in the Gujarat Secondary Regulations, 1974 but also in the primary rules, similar amendment was brought about and the earlier position was restored. 7. Not only in the Gujarat Secondary Regulations, 1974 but also in the primary rules, similar amendment was brought about and the earlier position was restored. 7. In view of the above, Shri Mitul Shelat, learned counsel for the petitioners submitted that so far as the only deficiency pointed out in Special Civil Application No. 6168 of 2019 and Special Civil Application No. 10183 of 2019 is concerned, it was about the ownership and this Court, while entertaining the said petition granted interim order permitting the respondents to allow the petitioners to run primary school ignoring the requirement of the ownership, subject to fulfillment of other conditions. In both the petitions, the institutions are running the schools and the Competent Authority having ascertained that there was no deficiency and all the requirements as per the Rules were fulfilled, granted permission, as such, Rule issued in the said petitions deserves to be made absolute. 8. Insofar as Special Civil Application No. 15989 of 2019 is concerned, it is submitted that appropriate directions may be issued to the Competent Authority to examine the application of the petitioner for granting affiliation of the secondary class/Class-9 and Class-11 in the light of the amendment brought about by Government Resolution dated 16th September, 2019 in the 1974 Regulations and subject to fulfillment of all other conditions as they stand now, the application of the petitioners may be disposed off within a fixed time frame. We find that the submission has substance. 9. Shri Mit Shah, Advocate appearing for Shri A.D. Oza, learned counsel for respondent-Gujarat Secondary and Higher Secondary Education Board has not been able to show anything contrary, rather he submits that within some reasonable time allowed by this Court, the application of the petitioners may be considered by the Competent Authority. In view of the above, the petitions are disposed of as follows. 10. So far as Special Civil Application No. 10183 of 2019 and Special Civil Application No. 6168 of 2019 are concerned, the recognition granted to the institutions in these petitions would continue inasmuch as they are already running the classes under the interim orders of this Court with a lease of appropriate number of years as required by the earlier 2018 Government Resolution and now again restored by the Government Resolution dated 16th September, 2019. The interim directions issued by this Court in these two petitions are liable to be made absolute. Both the above petitions stand disposed off accordingly. Rule is made absolute in each of the two petitions to the aforesaid extent. 11. Special Civil Application No.15989 of 2019 is disposed of with a direction to the Competent Authority to take appropriate decision in the light of the observations made above on or before 15th April, 2020 so that the petitioner does not lose the next academic year. Civil Application No. 1 of 2020 also stands disposed off accordingly.