VITTHALPRABHU EDUCATION & VHARITABLE TRUST vs STATE OF GUJARAT & ORS

Heard learned advocate Mr. Bharat Rao for the petitioner, learned advocate Mr. Sudhanshu Oza for learned advocate Mr. A. D. Oza for the second respondent and learned Assistant Government Pleader Mr. Utkarsh Sharma for respondent respondent.

By filling the present petition, the petitioner trust has prayed to set aside what is described as ''show cause notice'' issued by respondent No.2 Gujarat Secondary and Higher Secondary Board on 24.04.2015 and on 16.09.2015 alleging that the same were issued against the Gujarat Secondary Education Act and the Rules thereunder. The second prayer inserted subsequently is for issuing direction to respondent Nos. 2 and 3 not to take cognizance of any complaint or representations made by private respondent No.4 or by any person acting through him. This is prayed upon the premise that the school run by the petitioner trust has been shifted from the old building to the new one after getting permission and that respondent No.4 by taking undue advantage as member of the Board, had been pressurising the Board to take harrasive action against the petitioner trust. The said second prayer was based on the allegation of mala fide.

It is the case of the petitioner trust that out of its own resources without governmental aid, it had have been running primary, secondary and high secondary section at B-Sardar Patel Complex, Siddhapur Highway, Patan. After seeking permission from the Panchayat authorities, a building was constructed. The petitioner made an application in July, 2014 for transfer of the school from old place of B-Sardar Patel Complex to M. K. Education campus situated opposite a gate of North Gujarat University, the distance between the old and new site was 1 km, it was claimed. 3.1 According to the petitioner, the authority granted permission to shift the school by order dated 30.09.2014. The Electricity company granted electricity connection. It is stated that since the new building had the various facilities, by letter dated 12.01.2015, the District Education Officer after preferred its use as examination center also. The petitioner stated that the petitioner had paid transfer fees and all the requirements for transfer/shifting of the school were complied with. It is the say of the petitioner that the new place became functional for education purpose only with effect from 01.10.2014, and prior thereto the said new campus was used for parking of buses etc.

3.2 It is the further case of the petitioner that a municipal Corporator and also a university senate member named Shaileshbhai Patel and one Kiritbhai Patel who happens to be the lecturer in law college and member of the Secondary Education Board, are rivals of the petitioner and that criminal cases are lodged against the said Kiritbhai; the details thereof are narrated in the petition. It is contended that the respondent Board is under acute pressure of the said person and despite permission to shift the school having been granted by the Board on 30.09.2014, the Board has proceeded to address the ''show cause notices'' dated 24.04.2015 and dated 16.09.2015.

3.3 The petitioner moved a draft amendment inter alia averring that on 26.08.2015, the school building was damaged by anti-social elements, that the trust filed criminal complaint against the said named persons and since the police refused to accept the complaint, the petitioner was required to file before this court Special Civil Application No. 5253 of 2015, whereby the court directed to register a complaint. The damage is assessed to Rs. 3,58,39,532/- as per the Panchnama, it was stated. It was submitted that the students who have been studying have been rendered scared. It appears that by virtue of order dated 04.05.2016 passed by this court, the said Kiritbhai C. Patel was permitted to be joined as party respondent, who though served, chose not to appear.

3.4 It is thus the case of the petitioner stated in a nutshell that the school run by it has been shifted to a better and convenient place with more facilities, after taking permission of the Board, but the said two persons alleged to be putting into practice their harrasive intentions against the petitioner, have been out to exert pressure on the respondent Board and under such pressure, the Board has issued the notices, which the petitioner wants to be quashed.

In the affidavit-in-reply filed by the second respondent Gujarat Secondary & Higher Secondary Board through its Secretary, the following material aspects are submitted raising them as contentions, (i) The Board has not taken any final decision in the matter. (ii) The petitioner did not remain present on 29.09.2015 as per the communication of the Board dated 16.09.2015. (iii) By letter dated 24.04.2015, the Board asked the District Education Officer to send report with regard to the date of shifting of the school as well as about the distance between the old and new premises. (iv) It is incorrect statement by the petitioner that he gave detailed reply on 11.05.2015 to the Board. What is produced is not the reply and no reply was given as claimed. (v) The communications dated 24.04.2015 and 16.09.2015 are not even show cause notices. (vi) The Board granted permission to shift the school by order dated 30.09.2014, but the school was shifted much before the permission given. A report from the District Educations Officer was therefore called for.

Having noticed the case and the contentions as above, turning to the challenge, the two notices impugned in the petition, may be appropriately looked at for its contents, the first communication dated 24.04.2015 is by the Secretary, Gujarat Secondary and Higher Secondary Board, addressed to the District Education Officer, Patan, in which it is stated that as per information received, the petitioner shifted the place of the school before the permission granted for shifting, and that though earlier by letter dated 30.09.2014 and 17.10.2014, the report was called for, the District Education Officer had not sent such reports. The addressee District Education Officer was further asked to submit report about discrepancy in the figure of distance between the old building place and new building, as according to the petitioner, the distance was about 1 km., whereas the Road and Building Department had mentioned the distance to be 1700 mtrs.. It was stated that as per Regulation 10(1) of the Board, shifting the place of the school was not allowed without prior permission of the Board. As the District Education Officer was called upon by the Secretary to submit report on the above aspects, a copy of the said communication dated 24.04.2015 by the Secretary, was sent to the petitioner and the Principal of the school run by the petitioner. 5.1 Going to the contents of the second impugned communication dated 16.09.2015, thereby the President of the petitioner trust was asked to remain present for personal hearing and representing on 29.09.2015 before the Secretary, Education department, in relation to the issue of shifting the place of the petitioner''s school. It is not coming out from the record as to whether the petitioner appeared as required to put forth its case and submit explanation. However, the record bears out that the present petition was filed on 13.10.2015, subsequently amended as per amendment prayed for on 12.08.2016.

5.2 The first of the above two is only an inter-se communication between the two competent authorities, by which report is solicited to know the correct details about shifting the place of the school. This could hardly be characterised even as a show-cause notice. It is not fathomable as to how this communication between two authorities by itself give cause of action to the petitioner. Similarly, the second communication dated 16.09.2015 only required the President or the Secretary of the petitioner trust to remain present and make representation. This communication, on the contrary would help the petitioner to put forth facts and prove his case. The petitioner ought to have availed the opportunity, as not doing so only would work to its perils.

5.3 There is a great substance in the contention of the respondent that the impugned are only the communications and do not even partake to be showcause notice. The Board has only asked for clarification. The petitioner has averred in para-19 of the petition that it has given detailed reply dated 11.05.2014.

5.4 Disposing of at this stage the allegation of mala fide sought to be made with reference to said named two persons and in particular added respondent No.4, the very nature of the challenge which, as stated above, is against the notice only, which at the best could be said to be, stretching the concept of show cause, a show cause notice and nothing more than that, would dispel as not sustainable the allegation. It is not possible to conclude that when the state educational authorities have been examining the issue of shifting the place and location of the school by inter-se communication to gather the facts and ensure that the proper procedure as per the rules is followed or not , it could not be said by any stretch of or any amount of reasoning that the action is mala fide. As stated, the petitioner could have put forth facts in support pursuant to said notice asking it to do so, rather than rushing to the court at this stage. The mala fide in law is a concept easier to allege, painstaking to prove.

5.5 It is well settled that the allegation of mala fide, in order to be established, require specific pleadings supported by convincing facts and backed by cogent circumstantial aspects. Merely by collecting strewn facts and demonstrating convenient circumstances, the mala fide could not be shown. The essentials for establishing mala fide is evidently in dearth, Therefore, the case of the petitioner on the count of mala fide falls flat.

5.6 In the aforesaid view and circumstances, the petition is too premature to be entertained. The impugned communications do not result into violation of any right of the petitioner, much less of the nature fundamental. Nor any enforceable right exists at this stage to approach the court. There is no gainsaying that the respondent authorities would take appropriate decision after considering the case of the petitioner on merits and as per law. As no rights are violated or become enforceable at this stage, the petition stands liable to be dismissed.

The petition, for the foregoing discussion and reasons, is not liable to be entertained. In the facts and circumstances of the case, however, the respondents shall give a fresh opportunity to remain present to represent its case on the issue of shifting of the school and after considering the petitioner''s case and the merits, shall render appropriate decision, completing the exercise within six weeks from the date of receipt of the writ of this order.

The petition stands dismissed and disposed of in the aforesaid terms. Notice is discharged. Interim relief stands vacated.