Vijay Pal Singh vs State Of Haryana And Others on 16 December, 2011

Punjab-Haryana High Court Punjab-Haryana High Court Vijay Pal Singh vs State Of Haryana And Others on 16 December, 2011 CWP No.18833 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No.18833 of 2011 (O&M) Date of Decision: 16.12.2011 Vijay Pal Singh ...Petitioners Versus State of Haryana and others ..Respondents. CORAM: HON'BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. H.C.Arora, Advocate, for the petitioners. Mr. Anil Rathee, Addl. Advocate General, Haryana, for respondents No.1 and 2. Mr. Deepak Balyan, Advocate, for respondents No.3 and 4. Mr. Chetan Mittal, Sr. Advocate with Mr. Vishal Garg, Advocate, for respondent No. 5. **** SURYA KANT. J. In this civil writ petition purportedly filed in public interest, the petitioners, who are residents of Sector 7, Panchkula, seek quashing of the sanction letter dated 16.09.2010 (Annexure P-3) whereby the Estate Officer, Haryana Urban Development Authority, Panchkula has approved the revised building plan of Ajay Memorial Education Society (Regd.) (respondent No. 5), for the construction of a High School at Plot No. 1, Sector 7, Urban Estate, Panchkula, which CWP No.18833 of 2011 (O&M) [2] according to the petitioners comprises the half portion of a public park. According to the petitioners, the construction and running of a High School at the plot in question not only violates the fundamental right to lead a quality life but also is contrary to the terms of the original allotment letter dated 08.12.1988 (Annexure P-1) and also to the guidelines laid down by the Board of School Education, Haryana. Similarly, the revised building plan violates the National Building Code of India, 2005 promulgated by the Bureau of Indian standard.

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Vijay Pal Singh vs State Of Haryana And Others on 16 December, 2011

2. In sum and short the case of the petitioners is that the land measuring 3203 Sq. meters was allotted to respondent No.5 vide letter dated 08.12.1988 (Annexure P-1) to run a Nursery School subject to the terms & conditions contained therein including that the plot shall not be used for any purpose other than for which it was allotted and the school to be run from the said building should be recognized by the appropriate State Government or Central Government Authority. It is averred that while the residents of the locality had no objection to the running of a Nursery School, they were in for a rude shock when the 5th respondent demolished the building of the Nursery School and started digging up the subject site to construct a basement and a multi-storey building. The petitioners then came to know that the demolition of the existing structure or re- construction at the site was on the basis of the revised building plan approved by the Estate Officer, HUDA, Panchkula, vide memo dated 16.09.2010 (Annexure P-3). The petitioners alleged that a three storey building, in addition to the basement sought to be constructed eventually to run a High School, is contrary to the terms & conditions CWP No.18833 of 2011 (O&M) [3] of allotment. The petitioners have further averred that since the subject site is a congested place surrounded by residential houses, the school would become a perennial source of nuisance as not only all the roads would stay occupied by the vehicles plying to and fro the school through narrow lanes, causing not only noise and environment pollution but also increasing the high risk of accidents for the residents of the locality as well as the children to be admitted to the school. It is also suggested that the very allotment in favour of respondent No.5 is illegal and contrary to the principles laid down by the Hon'ble Supreme Court in New India Public School and others V. HUDA and others etc. 1996(5) S.C.C. 510. 3. It is also the case of the petitioners that in the light of an order dated 3.9.2004 passed by this Court in Civil Writ Petition No. 8094 of 1997 (Vinod Kumar V. State of Haryana and others) whereby the States of Punjab, Haryana and Union Territory, Chandigarh were directed to close down all those schools which were being operated from residential premises, the Director Secondary Education, Haryana and Director, Primary Education, Haryana, have issued instructions dated 09.05.2005 which would equally apply to the site in question as the same is also surrounded by residential houses. 4. The petitioners' case has been opposed by the respondents who have filed their respective replies/affidavits. The Director Secondary Education, Haryana (respondent No.2) in its reply/affidavit dated 17.11.2011 explained that prior to the year 2003, the recognition to run a school was granted by the Department subject CWP No.18833 of 2011 (O&M) [4] to fulfillment of the conditions laid down in Section 4 of the Haryana School Education Act, 1995 but in the year 2003 the Haryana School Education Rules, 2003 were notified which had been amended in the years 2007 and 2009 laying down the revised criteria for recognition of the schools. The reply/affidavit further explains that respondent No.5 society has informed the Department vide its reply dated 20.09.2011 (Annexure R-2) that 'they are running the school upto 5th standard now and they have no plans to go beyond this standard and they have surrendered their affiliation of 8th and 10th class to the board'. 5. Respondents No. 3 and 4 (HUDA) have also filed their reply/affidavit explaining that the subject plot falls under the category of residential plots and was allotted to respondent No.5 on 08.12.1988 for running a Nursery School. The reply/affidavit further explains that the revised building plan has been sanctioned as per rules and regulations after proper verification and checking by the District Town Planner, Panchkula and Executive Engineer, Haryana Urban Development Authority 'for Nursery School only'. Respondents No.3 and 4 have pointed out that earlier also the allotment of the plot in question in favour of respondent No.5 was challenged before this Court in Civil Writ Petition No. 5103 of 1989 (ML.Chanana and others V. Haryana Urban Development Authority and others) which was dismissed vide order dated 26.04.1990. 6. Respondent No.5 has also filed its reply affidavit maintaining (Annexure R-5/1) that the school building was completed in the year 1992 and even before that the society was CWP No.18833 of 2011 (O&M) [5] granted recognition to run a Middle School vide memo dated 18.04.1991 and thereafter recognition to run a High School was obtained in the year 1997 which continued for almost 13 years till March, 2011. Respondent No.5 while defending its action in getting the revised building plan sanctioned, has categorically averred in
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Vijay Pal Singh vs State Of Haryana And Others on 16 December, 2011

the affidavit that "the new building is only going to cater to classes upto 5th and is not going to be a high school. As far as the number of students are concerned, it is relevant to mention here that the answering respondent gives assurance to this Hon'ble Court that they are not going to increase the number of students as they have planned 20 class rooms of 400 sq. feet. each, other than activity rooms, having not more than 25 students in each class. As per the sanctioned plan, there are 9 rooms on each floor out of which only 20 rooms will be used as class rooms. There shall be not more than 25-30 staff members in total.". 7. It thus emerges from the categoric stand taken by each respondent that respondent No. 5 has decided to run only a primary school upto to 5th standard though originally the site was allotted to it for running a Nursery School only. The reply/affidavit filed by the Haryana Urban Development Authority spells out that the revised building plans have been sanctioned for running a Nursery School only. 8. Learned counsel for the parties have been heard and records perused. 9. Notwithstanding the fact that the respondents have taken a unanimous stand that no High School shall be run at the subject site, CWP No.18833 of 2011 (O&M) [6] learned counsel for the petitioners urged that the multi-storey building sought to be constructed does not meet the mandatory guidelines laid down by the Hon'ble Supreme Court in the case Avinash Mehrotra V. Union of India and others,(2009) 6 S.C.C. 398 nor does it adhere to the guidelines laid down by the National Building Code of India, 2005 which, inter-alia, prescribed as follows:- "ii. The nursery and elementary schools should be housed in a single storied building and the maximum number of floors in school buildings shall be restricted to three including the ground floor. iii) The School building shall be free from inflammable and toxic materials, which if necessary, should be stored away from the school building. iv) The staircases, which act as exits or escape routes, shall adhere to provisions specified in the National Building Code of India, 2005 to ensure quick evacuation of children.". 10. The aforesaid allegations have been refuted by learned counsel for the respondents who have maintained that the construction was commenced only after getting the building plan sanctioned from Haryana Urban Development Authority which is the competent statutory authority and before sanctioning the same all the safety measures required to be maintained by a school in terms of the mandatory guidelines laid down by the Hon'ble Supreme Court in Avinash Malhotra's case (supra) have been kept in view and followed. They have also pressed the preliminary objection regarding concealment of facts by the petitioners. 11. It may be true that some of the petitioners were party to Civil Writ Petition No. 5103 of 1989 (M.L.Chanana and others V. CWP No.18833 of 2011 (O&M) [7] Haryana Development Authority & others) cited supra, in which the allotment of subject site to respondent No.5 (society) on the plea that the said site was part of a public park was unsuccessfully challenged and the writ petition was dismissed by the Division Bench of this Court vide order dated 16.04.1990. However, keeping in view the nature of a public interest litigation which is essentially non- adversarial in nature, suffice it would be to observe that the issue raised by the petitioners in the instant case is slightly different. Their grievance is not against the allotment of the site for running a Nursery School, it is rather against the construction of a multi-storey building to run a High School. 12. The aforesaid grievance of the petitioners, in our considered view, stands substantially redressed in view of the categoric stand taken by the respondents to the effect that no recognition to run a High School has been granted to respondent No.5 nor the said society intends to establish a High School at the subject site. As
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Vijay Pal Singh vs State Of Haryana And Others on 16 December, 2011

regards to the guidelines contained in the National Building Code of India, 2005, reproduced above, it is apparent that construction of a three-storey building for such like school is permissible even under those guidelines. It is not necessary that the tiny tots would compulsorily be taken to the first or second floor of the building as the class rooms can be housed on the ground floor and the upper floors can be used as Administrative Blocks or for other ancillary activities. 13. The question as to whether respondent No.5 society is to be permitted to run a school upto 5th standard or not, would depend CWP No.18833 of 2011 (O&M) [8] upon the terms & conditions laid down in the Haryana School Education Rules, 2003, as amended from time to time, and it may not be expedient for us to express any views in relation thereto. The Nursery School, if upgraded upto 5th standard, whether would cause serious inconvenience or prejudice to the residents of the locality due to substantial increase in the strength of the children or it may require additional construction at the site etc., are several factors which shall have to be kept in view by the Competent Authority before taking any final decision in this regard in accordance with the policy and the Rules on the subject. The plot size, however, shall remain the same without affecting the remaining area of the adjoining public park. 14. This Public Interest Litiglation can be effectively closed without issuing any further directions and by reiterating the categoric stand taken by the Haryana School Education Board, Haryana Urban Development Authorities as well as respondent No.5 Society itself that they shall not establish or run a High School at the site in question. We accordingly dispose of the matter. (RANJAN GOGOI) (SURYA KANT) CHIEF JUSTICE JUDGE 16.12.2011 'ravinder'

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