Gujarat High Court
Bhupendra Mansukhlal Vithlani vs State Of Guajrat on 6 October, 2021
Bench: Bhargav D. Karia
C/SCA/7491/2020 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7491 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 7491 of 2020
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7491 of 2020
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
BHUPENDRA MANSUKHLAL VITHLANI
Versus
STATE OF GUAJRAT
==========================================================
Appearance:
MR PERCY KAVINA, SR. ADVOCATE, MR NIKUNT K RAVAL(5558) for the
Petitioner(s) No. 1
MR DHAWAN JAYSWAL, GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,7
MR AD OZA(515) for the Respondent(s) No. 2
MR SI NANAVATI, SR. ADVOCATE, NANAVATI & NANAVATI(1933) for the
Respondent(s) No. 3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/10/2021
COMMON ORAL JUDGMENT
1. Heard, learned Senior Advocate Mr. Percy
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Kavina assisted by learned Advocate Mr. Nikunt
Raval, learned AGP Mr. Dhawan Jayswal for
Respondent Nos. 1 and 7, learned Senior Advocate
Mr. Sudhir I. Nanavati assisted by learned
Advocate Mr. P.B. Raval for Respondent Nos. 3 to
6 and learned Advocate Mr. A.D. Oza for
Respondent No.2.
2. Rule. Learned AGP Mr. Jayswal waives service
of rule for Respondent Nos. 1 and 7, learned
Advocate Mr. Raval waives for Respondent Nos. 3
to 6 and learned Advocate Mr. Oza waives for
Respondent No.2.
3. By this petition under Articles 226 and 227
of the Constitution of India, the Petitioner-
Trust has prayed for the following reliefs;
"8. ...
(A) The Hon'ble Court be pleased to issue
appropriate writ, order or direction,
quashing and setting aside the order
impugned dated 29.02.2020;
(AA) Be pleased to issue appropriate writ,
order or direction quashing and setting
aside order dated 17.03.2020 and
consequently quashing and setting aside
the directions issued thereto;
(B) Pending hearing and final disposal of
the present petition, be pleased to stay
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the operation, implementation of the order
impugned dated 29.02.2020;
(C) The Hon'ble Court may be pleased to
grant ex-parte ad interim relief in terms
of Para (A) and (B) above;
(D) ..."
4. The petitioner-Trust is running a school in
the name and style of Darshan Secondary and
Higher Secondary School on the Plot No. 288,
Survey No. 303-A / Block No. J.
4.1 The petitioner filed an application in the
year 2012 seeking regularziation of the
construction plan of the school on the property
of the Petitioner-Trust before the Verabal Nagar
Palika under the provisions of the Gujarat
Regularization of the Unauthorized Development
Act, 2011(GRUDA).
4.2 It is the case of the petitioner-Trust that
on 30th May, 2014 an FIR came to be filed against
the trustee of the school by the Nagar Palika on
the ground that the school had obtained
registration on the basis of falsified record.
However, the Trustee has expired on 3rd June,
2014.
4.3 Thereafter, it appears that there is pending
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litigation between the petitioners and respondent
nos. 5 and 6 as the Respondent Nos. 5 and 6 have
preferred Special Civil Application No. 9595 of
2017 whereas Petitioners have filed Special Civil
Application Nos. 6804 & 6805 of 2016.
4.4 During the pendency of the aforesaid
petitions filed by the petitioners, a complaint
was made before the District Education
Officer(DEO) by Respondent Nos. 3 to 6 and DEO in
turn made a recommendation to Respondent No.2-
Board to cancel the recognition of the school run
by the Petitioner-Trust. The petitioner-Trust
therefore filed an appeal on 3rd November, 2015
before Respondent No.1, who by order dated 5th
April, 2016 remanded the issue for fresh
consideration to Respondent No.2-Board.
4.5 Respondent Nos. 5 and 6 made an application
before Respondent No.2-Board which was rejected
by it vide order dated 21st May, 2016 on the
ground that as the petitioners have challenged
the proceedings with regard to regularization of
its building plans before this Court by filing
of Special Civil Application Nos. 6804 & 6805 of
2016 till such petitions are disposed of the
decision on the complaint filed by Respondent
Nos. 5 and 6 is deferred.
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4.6 It may be noted that the school run by the
Petitioner-Trust was permitted to run from June,
2016.
4.7 Being aggrieved by the same Respondent Nos. 5
and 6 preferred Special Civil Application NO.
9595 of 2017, which is pending for consideration
before this Court.
4.8 It appears that during the pendency of the
proceedings before this Court, i.e. Special Civil
Application No. 9595 of 2017 and Special Civil
Application Nos. 6804 and 6805 of 2016,
Respondent Nos. 3 to 6 made another application
before Respondent No.2-Board requesting action to
be undertaken against the petitioner-Trust.
However, the said application was not entertained
by Respondent No.2-Board in view of the pendency
of the litigations before this Court and by order
dated 6th March, 2019 it was decided by Respondent
No.2 to keep such complaint in abeyance and to
proceed with the same after the decision of this
Court in the pending petitions being Special
Civil Application No. 9595 of 2017 and Special
Civil Application Nos. 6804 and 6805 of 2016.
4.9 Being aggrieved and dissatisfied with the
aforesaid order passed by Respondent No.2-Board,
Respondent Nos. 3 to 6 preferred an appeal before
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Respondent No.1 on 3rd May, 2019 on the ground
that there was violation and non-compliance of
the order of the officer authorized by Respondent
No.2 and the school kept functioning during the
Navratri vacation period.
4.10 Respondent No.1 entertained such
application and passed the order dated 29th
February, 2020 whereby recognition of the school
run by Petitioner-Trust was ordered to be
cancelled with effect from 3rd March, 2020 even
without permitting the completion of the Academic
Year.
4.11 It is the case of the petitioner that
more than 1300 students are studying in the
school run by the Petitioner-Trust.
4.12 Thereafter, the petitioner-Trust
filed this petition. During the pendency of this
petition Respondent No.2-Board passed the order
dated 17th March, 2020 on the basis of the order
passed by Respondent No.1 on 29th February, 2020
and cancelled the recognition of the school run
by the Petitioner-Trust.
4.13 The petitioner later on has amended the
petition to challenge the order dated 17th March,
2020 passed by the respondent no.1.
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4.14 This Court (Coram: Mr. Umesh A. Trivedi,
J.) passed following order on 22nd June, 2020:
"Heard Mr.Devang Vyas, learned advocate
for Mr.Nikunt Raval, learned advocate for
the petitioner. According to his
submission, the Gujarat Secondary and
Higher Secondary Education Board, who is
concerned with registration or de-
registration of a school, had already kept
in abeyance in 2014 the proceedings,
waiting for the decision of the High Court
in a petition filed by the school for
regularization of construction of the
school building, as also police case filed
against the then Trustee / concern person
to 6 in the year 2019 appears to have
moved Gujarat Secondary and Higher
Secondary Education Board where the
proceedings for cancellation of
registration of the petitioner's school
were pending. After considering the
again the Board vide order dated 6.3.2019
kept in abeyance the hearing waiting for
the decision of the High Court. Taking as
a base, Respondent Nos.3 to 6 appears to
have preferred the appeal before the State
Government and the State Government vide
order impugned dated 29.02.2020, ordered
cancellation of the registration of the
school. He has further submitted that when
decision for cancellation of registration
was pending before the Board, who is
competent authority to determine the same
C/SCA/7491/2020 JUDGMENT DATED: 06/10/2021
after an inquiry as contemplated, the
State authority in an appeal, could not
have usurp the jurisdiction of the Court
to cancel the registration. According to
his submission, at best, the State could
have directed the Board to hear those
pending proceedings kept in abeyance
despite the pendecy of petition before the
High Court praying for regularization of
construction of school building. He has
further submitted that at any rate the
State could not have, in appellate
jurisdiction, canceled the registration
which was under consideration before the
Board. He has further submitted that the
impugned order passed in appeal by the
State takes into consideration, over and
above the dispute which was already
pending before the Board, that despite the
prohibition of continuing the educational
activities during Navratri vacation, the
school had for two day i.e. 10.10.2018 and
11.10.2018 continued the same. Over and
above that, the educational activities
were imparted at a different place than
registered place to the students on two
occasions on a public holiday. He has
submitted that these are hardly the
grounds to cancel the registration of a
school. He has further submitted that the
competent authority i.e. Board has never
issued any show cause notice to the school
for cancellation of registration on those
two counts. He has further submitted that
the Respondent Nos.3 to 6 have a personal
interest to see that petitioner cannot run
school there because they are having
hospital in same area in a street where
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school is going on. Therefore, he has
submitted that because of conflict of
professional interest, they have moved the
State and the State has passed the
impugned order at their instance when
original proceedings were already kept in
abeyance since 2014 before the Board.
Therefore, he has submitted that petition
be entertained and stay be granted.
As against that, Mr. Sudhir Nanavati,
learned senior advocate assisted by Mr.
Pinakin B. Raval, learned advocate for the
Respondent Nos.3 to 6 on a Caveat
submitted that the school runs in a
building having no permission for
construction or even building use
permission. Citing the decision of the
Supreme Court reported in (2009) 6 SCC
398, Mr. Nanavati, learned senior counsel
submitted that there were several
directions issued to all the State
Governments not to permit or continue to
permit any schools in a building which is
not having any building use permission,
considering the interest of the students
studying in the school. He has further
submitted that while seeking permission
for construction, the school authority had
produced forged documents and therefore, a
criminal case is filed against person
responsible for the same. He has further
submitted that after considering each and
every aspect, the State has allowed the
appeal and therefore, he has requested to
dismiss the petition, if not, refuse to
grant the interim relief to the
petitioner.
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The matter requires scrutiny in detail.
Prima-facie, registration, cancellation of
registration or de-registration is the
jurisdiction of the Board under the Act,
rules and regulations, that too, after
conducting inquiry in it. Though, the
State may have appellate control over the
decision of the Board, however, when the
said decision is pending before the Board,
the State cannot usurp the powers of Board
to cancel the registration in absence of
any decision either refusing to cancel or
canceling the registration by the Board.
It appears that there is a conflict of
interest as also ego clash of two group
doing different activities in the very
same street which has led to this
proceeding.
Therefore, Notice returnable on 27th July,
2020. Mr. Pinakin B. Raval, learned
waives service of notice. Mr. Utkarsh
Sharma, learned AGP waives service of
notice on behalf of Respondent No.1. The
petitioner may serve the rest of the
respondents through E-mails over and above
the normal mode of service.
Since Mr. Nanavati, learned senior counsel
is heard on Caveat, by way of interim
relief the impugned decision dated
29.02.2020 passed by Deputy Secretary
(Appeals), Education Department and all
consequential orders passed pursuant
thereto, including communication dated
28.05.2020 by District Education Officer,
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District: Gir Somnath, bearing
No.1/Madhya/Darshan/2020/661-63, are
hereby stayed till final disposal of this
petition."
4.15 The order passed by this Court (Coram: Mr.
Umesh Trivedi, J.) on 27th July, 2020 reads as
under:
Mr. Sudhir Nanavati, learned Senior
Counsel appearing for respondent Nos.3 to
6, submitted that he has already filed
affidavit-in -reply to the petition on
21.07.2020. However, it doesn't form part
of compilation of this petition.
Registry is directed to verify the same
and replace it in this papers.
Mr. A.D. Oza, learned advocate, has
instruction to appear for respondent No.2
herein. He has submitted that he has
already filed his appearance before the
registry.
Registry to verify the same and correct
the cause title in the cause list next
time.
Mr. Oza, learned advocate for respondent
No.2, seeks time. At his request, stand
over to 17th August, 2020."
4.16 The petitioner thereafter has also preferred
Civil Application No.1 of 2020, seeking stay of
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the communication dated 28.05.2020 issued by
Respondent No.7-DEO and then the petitioner moved
a draft amendment which was granted by this Court
by order dated 27th September, 2021.
5. Learned Senior Advocate Mr. Kavina assisted
by learned Advocate Mr. Raval submitted that
Respondent No.1 could not have entertained the
appeal filed by Respondent Nos. 3 to 6 under sub-
Section (10) of Section 31 of the Gujarat
Secondary & Higher Secondary Act, 1972
(hereinafter, 'Act of 1972').
5.1 It was submitted that Respondent No.2-
Board kept the complaint filed by Respondent Nos.
3 to 6 in abeyance till this Court decides
Special Civil Application No. 9595 of 2017
preferred by Respondent Nos. 3 to 6 challenging
the order dated 21st May, 2016 passed by
Respondent No.2-Board permitting the petitioner
school to function during the pendency of Special
Civil Application Nos. 6804 & 6805 of 2016 filed
by the petitioner-Trust which pertains to
regularization of the building of the school run
by the petitioner-Trust.
5.2 It was further submitted that Respondent
Nos. 3 to 6 could not have filed the appeal
before Respondent No.-1 challenging the order
C/SCA/7491/2020 JUDGMENT DATED: 06/10/2021
dated 6th May, 2019 as there was no decision taken
by Respondent No.2-Board on the complaint made by
Respondent Nos. 3 to 6. But, Respondent No.2-
Board has unanimously held that the complaint
should be kept pending as the matter was sub-
judice and about 1500 students are studying in
the school and deferred the decision on the
complaint filed by Respondent Nos. 3 to 6 till
this Court decides the pending petitions.
5.3 It was further submitted that Respondent
No.1 could not have entertained the appeal filed
by Respondent Nos. 3 to 6 and therefore the order
dated 29th February, 2020 and the consequential
order dated 17th March, 2020 passed by Respondent
No.2 are without jurisdiction and the same are
liable to be quashed and set aside.
6. On the other hand, learned Senior Advocate
Mr. Nanavati assisted by learned Advocate Mr.
Raval for Respondent Nos. 3 to 6 submitted that
as Respondent No.2 did not decide the complaint
made by Respondent Nos. 3 to 6 and kept the
matter in abeyance, Respondent Nos. 3 to 6 had no
alternative but to challenge such a decision
under sub-Section (10) of Section 31 of the Act
of 1972.
6.1 It was submitted that Respondent No.1
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after considering the material and after giving
an opportunity of hearing to the petitioner-Trust
has passed the impugned order and therefore the
petitioner-Trust cannot now make grievance that
Respondent No.1 was not authorized or has no
jurisdiction to entertain the appeal as the
petitioner-Trust already participated in the
hearing and as the order passed by Respondent
No.1 is not in favour of the petitioner-Trust,
the petitioner-Trust cannot press such a ground
that the impugned order dated 29th February, 2020
is without jurisdiction.
6.2 Learned Senior Advocate Mr. Nanavati also
pointed out to this Court that the reasons given
by Respondent No.1 in the impugned order dated
29th February, 2020 wherein it has categorically
held that the petitioner-Trust and the school run
by it obtained B.U. permission by producing
forged certificate and false signature by
applying the seal of the Chief Officer of the
Nagar Palika. It was also pointed out from the
impugned order that there is no stay order
granted by this Court against Respondent No.2-
Board to not to consider the complaint /
application made by Respondent Nos. 3 to 6 which
was considered by Respondent No.1 and in that
view of the matter the order passed by Respondent
No.2 was rightly interfered by Respondent No.1 in
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exercise of appellate jurisdiction.
6.3 It was pointed out that the school run by
the petition-Trust is in existence inspite of the
fact that there is clear violation of the GDCR
rules and regularization of the building in which
the school is functioning which is not approved
under the concerned provisions of the Act.
6.4 It was submitted that serious criminal
complaints were filed against the trustees of the
Petitioner-Trust which are pending in before the
concerned Court and the charge-sheet is also
filed on 28th December, 2020.
6.5 Learned Senior Advocate Mr. Nanavati also
relied on the following averments made in the
affidavit-in-reply filed for and on behalf of
Respondent Nos. 3 to 6;
"2. Pursuant to the FIR being CR. No.
42/204 dated 30.05.2014 filed by one Mr.
R.G. Dedania, Engineer, Veraval-Patan
Joint Nagarpalika, registered with the
Veraval City Police Station, a Charge
Sheet has been filed by the Police after
completion of the investigation. A copy of
the Charge Sheet No. 74/2020 dated
28.12.2020 is annexed hereto and marked as
ANNEXURE"I".
3. During the investigation, the
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Police has recorded the statement of the
Complainant Mr. R.G. Dedania which
specifically says that any person who
wants to construct any building, requisite
permission under the relevant Act will
have to be obtained and for which
necessary application in the prescribed
form will have to be submitted by the
Applicant to the Nagarpalika. On receipt
of such Application, the Town Planning
Committee takes decision upon such
application. If the Town Planning
Committee approves and sanctions the
proposal, thereafter only the Chief
Officer puts his Signature and affixes his
stamp. Similarly, for obtaining B.U.
permission, requisite application in the
prescribed form will have to be submitted
along with other necessary documents. Upon
receipt of such application, the Chief
Officer gets the premises Surveyed and if
everything is found in accordance with
law, rules and regulations, B.U.
Certificate will be issued. The
Complainant further states that the Police
has shown the relevant documents to the
Complainant and after seeing and verifying
the same with the official record
maintained by the Nagarpalika, it was
found that no such map and/or B.U.
permission was issued by Veraval-Patan
Joint Nagarpalika and no such permission
or approval was granted to construct the
school building for Darshan School nor was
any such B.U. permission ever granted by
Veraval-Patan Joint Nagarpalika. The
Complainant, therefore, said that the
alleged signature of the Chief Officer and
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the stamp of the Chief Officer contained
in such forged document is bogus and
fabricated, which were used by the
Management of Darshan School for the
purpose of obtaining requisite permission
from the Gujarat Secondary and Higher
Secondary Education Board to start Darshan
School. Annexed hereto and marked as
ANNEXURE "II" is a copy of the statement
given by R.G. Dedania to the Police.
4. During the course of
Investigation, the Police has also
recorded the statement of one Mr.
Kalpeshbhai Chimanlaibhai Adhiya who is
residing at Veraval and doing his business
as consulting Engineer. He has
Specifically stated in his statement
before the Police that the Police had
shown him a map (the alleged forged map)
which is of Darshan School building. He
admits that the said map contains his seal
and siu ature at the bottom. He also
admits that one Mr. Bhupendra Mansukhlal
Vithlani had approached him for drawing/
preparing the said map. Mr. Kalpeshbhai
further states that in pursuance of the
request made py Mr. Vithlani, he had
drawn/prepared the said map for Darshan
School somewhere in the year 2005. After
the preparation of the said map, he had
put his stamp and signature and handed
over the same _ to Bhupendra Mansukhlal
Vithlani. He further states that he had
never met Mr. Datta. Annexed hereto and
marked as ANNEXURE "III" is a copy of the
aforesaid statement of Mr. Kalpeshbhai
Chimanlalbhai Adhiya.
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5. Based on the aforesaid forged
and fabricated map as well as B.U.
permission, the Gujarat Secondary and
Higher Secondary Education Board by its
Order dated 08.05.2007 had granted
permission to start Darshan Higher
Secondary School at Veraval. Annexed
hereto and marked as ANNEXURE "IV" is a
copy of the aforesaid permission granted
by the Secretary, Gujarat Secondary and
Higher Secondary School Board,
Gandhinagar. The Board has granted the
aforesaid permission on specific terms and
conditions Stated in the aforesaid Order.
Condition No. 12 Specifically states that
this permission is granted on a Specific
condition that all the requisite
permissions with regard to construction of
the School Building nave been legally
obtained and sanctioned. In case the
sequisite permission for construction of
school puilding has not been
obtained/granted by the concerned
authority, then the permission to start
the school as granted by the School Board
will automatically stand cancelled and the
management of the School will be liable
for all the consequences.
6. It is further submitted that on
25.09.2020, the Respondent No.6 wrote a
letter to the Chief Officer, Veraval-Patan
Joint Nagarpalika forwarding therewith 4
documents alleged to have been signed by
the Chief Officer, Veraval-Patan Joint
Nagarpalika for the purpose of
verification by Veraval-Patan Joint
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Nagarpalika. Pursuant to the aforesaid
request of Respondent No.6, the Chief
Officer, Veraval-Patan Joint Nagarpalika,
after verification with the official
records maintained by the Nagarpalika, had
wrote a letter dated 08.10.2020 to the
Respondent No.6 confirming that as per the
official record of the Nagarpalika, no
such certificates were ever issued by the
Nagarpalika in favour of Darshan Higher
Secondary School. Annexed hereto and
marked as ANNEXURE "V" COLLY. are the
copies of the aforesaid documents.
7. Thus, from the aforesaid, it is
crystal clear that Mr, Bhupendra
Mansukhlal Vithlani being the President
and one of the Trustees of Late Smt.
Bharati Memorial and Charitable Trust,
had, in collusion with other frustees of
the said Trust, submitted several forged
and fabricated documents to Gujarat
Secondary and Higher Secondary Education
Board to start Darshan Secondary and
Higher Secondary School at Veraval. Based
on such forged and fabricated documents,
the Gujarat Secondary and Higher Secondary
Education Board had erroneously granted
requisite permission dated 08.05.2007 to
start Darshan Secondary and Higher
Secondary School at Veraval. The
Respondent Nos. 1 and 2, therefore, had
rightly cancelled the recognition of the
School having come to know about forged
and fabricated documents submitted by the
Management of Darshan Higher Secondary
School.
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Even otherwise, Condition No.12 mentioned
in the aforesaid permission dated
08.05.2007, clearly mentions that such
permission is granted only on a condition
that the School building is having all the
tequisite permissions from the concerned
authority and if such requisite
permissions have not been obtained from
the concerned authority, in that case such
permission to start the school stands
automatically cancelled and the School
management will be liable for the same."
6.6 Relying on the aforesaid averments it was
submitted that this petition does not deserve any
sympathetic consideration by this Court in view
of the fact that the criminal proceedings are
pending against the petitioner-Trust and
therefore Respondent No.1 has rightly cancelled
the recognition of the school run by petitioner-
Trust.
7. Learned Advocate Mr. Oza appearing for
Respondent No.2-Board submitted that Respondent
No.2 is bound by the decision of Respondent No.1
and therefore the consequential order dated 17th
March, 2020 is passed.
8. Learned AGP Mr. Jayswal submitted that the
petitioner-Trust violated the conditions for
regularization of the building in which the
schools is being run and therefore Respondent
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No.1 has rightly exercised the jurisdiction by
canceling the recognition of the school run by
petition-Trust.
9. Having heard the learned Advocates for the
parties and having perused the material on record
it appears that Respondent No.2 passed the order
dated 6th March, 2019 on the application /
complaint made by Respondent Nos. 3 to 6 and
considering the earlier application / complaint
made by Respondent Nos. 3 to 6, it was decided by
the Executive Committee of Respondent No.2 on 26th
April, 2016 to consider such application after
this Court decides the pending petitions with
regard to regularization of the construction as
well as criminal complaint filed against the
Petitioner-Trust.
9.1 It appears that being aggrieved by
order dated 26th April, 2019, Respondent Nos. 3 to
6 preferred Special Civil Application No. 9595 of
2017 which is pending before this Court. In view
of the pendency of Special Civil Application No.
9595 of 2017 Respondent No.2-Board vide order
dated 6th March, 2019 unanimously held that as
there are about 1500 students studying in the
school run by the petition-Trust and the matters
are sub-judice before this Court the decision was
deferred till this Court decides Special Civil
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Application No. 9595 of 2017.
being aggrieved with the decision of the
Respondent No.2-Board dated 6th March, 2019
preferred an appeal before Respondent No.1 State
under sub-Section (10) of Section 31 of the Act
of 1972 and Respondent No.1 without considering
the provisions of Section 31 of the Act of 1972
and entertained such appeal and passed the
impugned order dated 29th February, 2020.
9.3 As per the provisions of Section 31 of the
Act of 1972, a school is required to get itself
registered for imparting secondary and higher
secondary education. Sub-Section (2) to (5) of
Section 31 of the Act of 1972 refers to the
procedure for registration of school. Sub-Section
(6) of Section 31 of the Act of 1972 stipulates
and empowers the Gujarat Secondary Education
Board- respondent no.2 to consider and make an
inquiry in respect of every application in
respect of registration in the manner prescribed
within three months from the date of receipt of
such application.
9.3.1 It is pertinent to note that sub-Section
(6) of Section 31 of the Act of 1972 refers to an
application for registration and not an
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application / complaint made by any third party.
9.4 Sub-Section (7) of Section 31 of the Act of
1972 provides for keeping a Register of the
schools which are granted registration and the
certificate of registration to be issued by
Respondent No.2-Board as provided under sub-
Section (8) of Section 31 of the Act of 1972.
9.5 Sub-Section (9) of Section 31 of the Act
of 1972 stipulates the powers of the Respondent
No.2-Board to deal with the defaults committed by
any person in-charge or managing the registered
school in carrying out any of the obligations or
the regulations or the instructions issued by the
Board then after providing an opportunity of
hearing, the Respondent No.2-Board can direct the
name of the school to be removed from the
register for such period as may be specified in
the direction or to be removed from the register
permanently.
9.6 In view of the above, clear provisions
of Section 31 of the Act of 1972, Respondent No.1
could not have entertained the appeal filed by
Respondent Nos. 1 to 3 under sub-Section (10) of
Section 31 of the Act of 1972, which was filed
against the order of Respondent No.2-Board and
therefore the impugned order dated 29th February,
C/SCA/7491/2020 JUDGMENT DATED: 06/10/2021
2020 passed by Respondent No.1 is without
jurisdiction and consequently, the order dated
17th March, 2020 passed by Respondent No.2-Board
is also without jurisdiction and therefore both
the orders are required to be quashed and set
aside.
10. For the foregoing reasons, this petition
is partly allowed and the impugned order dated
29th February, 2020 passed by Respondent No.1 and
the order dated 17th March, 2020 passed by
Respondent No.2-Board are hereby quashed and set
aside and the matter is remanded to Respondent
No.2-Board at the stage at which the order dated
6th March, 2019 was passed by Respondent No.2 to
proceed further in accordance with law.
11. It is clarified that this Court has not
gone into the merits of the matter and the
contentions raised by the learned Advocates for
the respective parties on merits and Respondent
No.2-Board is directed to consider all the
contentions raised or which may be raised by the
petitioner as well as the Respondent nos. 3 to 6
in the pending proceedings which are kept in
abeyance by the order of Respondent No.2 dated 6th
March, 2019.
12. It is also clarified that this Court has
C/SCA/7491/2020 JUDGMENT DATED: 06/10/2021
quashed and set aside the order dated 17th March,
2020 passed by Respondent No.2-Board not on the
ground that Respondent No.2 was not justified by
deciding with regard to the registration or de-
registration of any school but the same is
quashed in the facts of this case as Respondent
No.2 passed the order dated 17th March, 2020
consequent to the order dated 29th February, 2020
passed by Respondent No.1. The respondent no.2-
Board shall decide the pending application filed
by the respondent nos. 3 to 6 independently in
accordance with law after giving opportunity of
hearing to all concerned parties. Rule is made
absolute to the aforesaid extent. No order as to
costs.
13. In view of the disposal of Special Civil
Application, Civil Applications shall not survive
and the same also stands accordingly disposed of.
(BHARGAV D. KARIA, J)
UMESH/-
