1. The State of Gujarat. Director of Education and its officers insist that the ownership of a suitable building is an essential condition for granting permission to open a private primary school and for according recognition for the purpose of Grant-in-Aid Code. That is why, Shri Santoshi Education Trust (hereinafter referred to as the Trust) and one of its trustees have instituted the present petition for appropriate reliefs directing the State of Gujarat and the Director of Education and its officers to grant them permission to open a private primary school and to accord recognition for the purpose of Grant-in-Aid Code without insisting on the aforesaid precondition.
2. The petitioners made an application as per annexure 13, dated June 16, 1977 in the prescribed form seeking permission to open a private primary school with English Medium and seeking recognition for the purpose of Grant-in-Aid Code, for the said school. The Administrative Officer, Panchmahals District Education Committee, Godhra, passed the impugned order dated July 1. 1977 refusing the request for recognition made by the petitioner. It appears that at that point of time a resolution of the Government of Gujarat, dated May 6, 1977 was in operation and there was an absolute prohibition against granting permission to open a private school and to grant recognition for the purpose of Grant-in-Aid Code. In view of this embargo, the application made by the petitioners was rejected. It, however, appears that at about this time, the Government passed another resolution, as per annex. D, dated June 29, 1977 modifying its previous resolution and resolving to grant; permission to open private primary schools and accord recognition for the purpose of Grant-in-Aid Code provided' the conditions embodied in the said resolution were satisfied. One of the conditions prescribed by the State Government in resolution as per annexure D, was that a new school should be allowed to be opened only provided the applicants had 'adequate building facility owned by them'. The petitioners do not own a building in which they can run their school. It. however, appears that suitable building for running a school is available to them on lease or licence. However, since they do not own a building, the respondents are not prepared to grant their application for opening a school and for according recognition for the purpose of Grant-in-Aid Code. In paragraph 6 of the Affidavit-in-reply, in terms it had been stated that 'the school seeking recognition should have its own building vide Government Resolution dated 29-6-1977.' It is in the background of these facts that the petitioners challenge the constitutionality of the aforesaid condition insisted upon by the respondents for granting permission to open a new primary school and to accord recognition to it for the purpose of Grant-in-Aid Code.
3. The equality guarantee enshrined in Article 14 of the Constitution of India would be infringed if an unreasonable or arbitrary condition is imposed and if it is insisted upon that unless such an arbitrary requirement is satisfied, the permission to open a school would not be granted. It would result in hostile discrimination between the applicants who own buildings in which they can run their own schools on the one hand and applicants who do not own such buildings but are in a position to run their schools in rented premises on the other. The classification made by the State Government for the purpose of granting permission and according recognition for the purpose of Grarit-in-Aid Code must have a nexus to the object. The State Government cannot arbitrarily insist upon a condition which would make it impossible for the applicants who do not own properties of their own to run a school. In the Affidavit-in-reply no effort is made to justify the insistence on such a pre-condition for granting permission and for according recognition for the purpose of Grant-in-Aid Code. One can understand an insistence in regard to the requirement that the. applicants must have at their disposal suitable accommodation wherein the school can be housed and wherein the students can conveniently prosecute their studies. However, the State Government insists not only that there must be suitable housing accommodation at the disposal of the applicants but that the applicants must also own such property what difference does it make whether education is imparted in a suitable building which is owned by the management or in a building which has been taken on lease by the management? What is of the essence of the matter is that there must be suitable accommodation for housing the school. Whether the building is owned by the appliant who wants to run the school or whether he has taken it on lease or licence. is altogether irrelevant. By introducing such a precondition a hostile discrimination has been practised. For, it would result in denying the right to run the school to those who do not possess such property. Only those privileged persons who 'own' a building, suitable for housing a school. can run a school. Not others. A competent person or insti tution, fully equipped academically to run a school, full of enthusiasm and, full of missionary zeal, cannot do so if the said person or institution does not 'own' a building wherein the school can be housed. The pre-condition insisted upon for granting permission and according recognition is both unreasonable and arbitrary and it would result in hostile discrimination. It creates a privilege class.And the classification does not have the remotest nexus with the obiect of the provision made for the purpose of granting permission and according recognition. We are of the opinion that the aforesaid pre-condition insisted upon by the State Government is unconstitutional and void being violative of Article 14 of the Constitution of India. We, therefore, allow this petition and quash that part of the Government Resolution at Annex. D which prescribes that new school should not be allowed to be opened except by those who have building facilities owned by them. We wish to make it clear that what we have quashed is that part of the resolution which insists on the 'ownership' of the building facilities. We are not holding that an adequate building facility (which may be taken on lease or licence) cannot be insisted upon. What we hold is that the State Government cannot insist that such building facilities should also be 'owned' by the applicants desirous of opening school.
4. Another consequential direction we must issue is to quash and set aside the impugned order dated July 1, 1977, passed by the Admini6trative Officer. Panchmahals District Education Committee, Godhra, respondent No. 4 herein below application Annex, B, refusing permission prayed for by the petitioners. We direct that the application. as per Annexure B, made by the petitioners, shall be disposed of on merits taking into consideration the fact that the Educational Inspector of the concerned area, by the report dated June 27. 1977, had recommended to grant the request of the petitioner deserved to be granted. We direct that the respondents shall not take into consideration that part of the resolution which requires that permission should not be granted where the applicant do not own adequate building facility. In other words, this part of the resolution shall not be taken into consideration in rendering decision in regard to the application made by the petitioners. The application of the petitioners shall be disposed of on merits before July 31,1980. Rule is made absolute to this extent. There will be no order as to costs.
5. Petition allowed.