Gram Panchayat Village Wazidpur vs State Of U.P. And 4 Others
2014 Latest Caselaw 5109 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 37
 

 
Special Appeal No.  792 of 2014
 

 
Gram Panchayat Village Wazidpur
 

 
Vs. 
 

 
State of U.P. and others
 

 
Hon'ble Vineet Saran, J.

Hon'ble Mrs. Vijay Lakshmi, J.

The facts, according to the learned counsel for the appellant-petitioner, are that the Basic School known as Primary Pathshala Wazidpur-2 was established in the year 1964 by the U.P. Board of Basic Education and the administrative control of the said Basic School was with the Gram Panchayat, Village Wazidpur i.e. the appellant. After the insertion of Section 9A in the U.P. Basic Education Act, 1972 (hereinafter referred to as the 'Act'), which came into effect from 21.6.1999, the respondent no. 5, who is Gram Pradhan of Gram Panchayat of village Murli Chhapra, filed an application before the District Basic Education Officer on 10.4.2013 stating that in pursuance of Section 9A of the Act, the administrative control of Primary Pathshala, Wazidpur-2 be handed over to the Gram Panchayat, Murli Chhapra on the ground that location of the institution was within the territorial limits of Gram Panchayat, Murli Chhapra.

On such application, a report was called for from the Sub Divisional Magistrate, which was submitted on 7.6.2013, whereby it was stated that location of Basic School in question was within the territorial limits of village Murli Chhapra. In pursuance thereof, on 20.6.2013 the District Basic Education Officer passed an order to the effect that since the Basic School in question falls within the territorial limits of village Murli Chhapra, the administrative control of the school be handed over to the Gram Panchayat, Murli Chhapra. Based on another communication dated 29.6.2013 issued by the Sub Divisional Magistrate to the effect that since the name of the Basic School as Primary Pathshala, Wazidpur-2 had not been changed, hence the administrative control should continue with the Gram Panchayat, Wazidpur, the District Basic Education Officer vide his order dated 8.7.2013 recalled the earlier order dated 20.6.2013

The said orders were challenged by the respondent no. 5 in writ petition no. 45454 of 2013, which was dismissed by the learned Single Judge on 2.9.2013 with the direction that the petitioners may file a representation before the District Magistrate, Ballia, who shall, after affording opportunity to the parties concerned, determine the factual dispute. It was further directed that the orders, which were impugned in the petition i.e. orders dated 29.6.2013 passed by the Sub Divisional Magistrate and 8.7.2013 passed by the District Basic Education Officer, would abide by the order passed by the District Magistrate, Ballia.

Pursuant thereto, the District Magistrate, Ballia has passed the order dated 28.12.2013 categorically holding that Primary Pathshala, Wazidpur-2 falls within the territorial limits of village Murli Chhapra and as such, in accordance with Section 9A of the Act, the administrative control of the Basic School should be with the Gram Panchayat, Murli Chhapra. The said order was passed in terms of the directions issued by this Court in writ petition no. 45454 of 2013. Challenging the said order dated 28.12.2013, appellant-petitioner filed a writ petition no. 11012 of 2013, which has been dismissed by a reasoned order dated 4.8.2014. Aggrieved by the said orders, this appeal has been filed.

We have heard Sri Prabhakar Awasthi, learned counsel appearing along with Sri Sanjay Singh, learned counsel for the appellant as well as learned Standing Counsel appearing for the State respondents no. 1 to 3 and Sri Sanjay Chaturvedi, learned counsel for the respondent no. 4-District Basic Education Officer and Sri P.N. Saxena, learned Senior Counsel along with Sri Anand Kumar Pandey, learned counsel appearing on behalf of private respondent no. 5 and have perused the record.

The submission of the learned counsel for the appellant is in three folds. It is firstly contended that for the first time the power to administer a Basic School was granted to a Gram Panchayat by the amendment made in the Act of 1972 by inserting Section 9A and ever since then (and even prior to that from 1964), the appellant-Gram Panchayat, Wazidpur was having administrative control over the said institution. It was also submitted that the amendment made in the year 1999, whereby the Section 9A was inserted, was prospective in nature and not retrospective and as such, the schools, which were being run by the Gram Panchayat on the date of coming into force of Section 9A, would continue to administer the basic schools and would not be affected by the insertion of Section 9A. According to the appellant, the transfer of the property etc. of a Basic School, in any manner, would be barred by sub-section (2) of Section 9A of the Act and as such, the administrative control of the Basic School could also not have been transferred from the appellant-Gram Panchayat, Wazidpur to Gram Panchayat, Murli Chhapra.

It was next contended by the learned counsel for the appellant that under the Act of 1972, the District Magistrate, Ballia had no jurisdiction to confer powers to administer a Basic School on a particular Gram Panchayat and as such, the impugned order dated 28.12.2013 passed by the District Magistrate, Ballia is wholly without jurisdiction and, in fact, has been passed in excess of its jurisdiction. It was lastly contended that the claim of the respondent no. 5 for administrative control over the Primary Pathshala, Wazidpur-2 was highly belated as after the amendment and insertion of Section 9A of the Act in the year 1999, for the first time such claim had been made by the respondent no. 5 only on 10.4.2013, which was after nearly 14 years. According to the appellant, the claim thus made ought to have been rejected as being barred by time.

Learned counsel for the respondents have however submitted that there was dispute with regard to the fact as to whether the Primary School in question was within the territorial limits of village Wazidpur-2 or Murli Chhapra and earlier there were conflicting orders of the Sub Divisional Magistrate, which had initially reported on 07.6.2013 that it falls within territorial limits of village Murli Chhapra and subsequently on 29.6.2013 stated that since the name of the school still remains as Primary Pathshala Wazidpur-2, the administration of the school should not be transferred to Gram Panchayat, Murli Chhapra, on the basis of which the order recalling the transfer of the administration of the school to Murli Chhapra was withdrawn by the District Basic Education Officer on 8.7.2014. It was in such circumstances that the District Magistrate, Ballia was directed by the High Court to decide the factual issue and, according to the respondents, the High Court had provided that the parties shall abide by the orders passed by the District Magistrate. Such order of the writ court was not challenged and had become final. It is submitted that earlier also, after passing the order dated 20.6.2013 transferring the administration in favour of Gram Panchayat, Murli Chhapra, the order was recalled on 8.7.2013 merely on the basis of report of the Sub Divisional Magistrate and as such, the jurisdiction of the District Magistrate cannot now be questioned by the appellant when the decision has gone against the appellant. Learned counsel for the respondents have thus contended that since it is now not disputed that the school in question falls within the territorial limits of village Murli Chhapra, then by virtue of Section 9A of the Act of 1972, the administrative control has to be with the Gram Panchayat, Murli Chhapra and not with the Gram Panchayat, Wazidpur.

We have heard learned counsel for the parties at length and have perused the record.

Section 9A of the Act was inserted with effect from 21.6.1999 by UP Ordinance, which was followed by the UP Act No. 18 of 2000. The said Section 9A of the Act is reproduced below:-

"9-A. Control of teacher and properties of basic schools.--(1) Notwithstanding anything contained to the contrary in any other provisions of this Act, on and from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Act, 2000,-

(a) every teacher of the basic school serving under the Board immediately before such commencement shall be under the administrative control of the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school, is situated;

(b) all buildings, properties and assets of the Board in respect of a basic school shall stand transferred to, and vest in, the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school is situated.

(c) where any building or part thereof is occupied by a tenant by the Board for the purpose of a basic school immediately before such commencement, the tenancy in respect of such building or part thereof shall, notwithstanding anything contained in any contract, lease or other instrument, stand transferred in favour of the Gram Panchayat, or the Municipality, as the case may be;

(d) the Board shall cease to be the licensee in respect of the building or part thereof referred to in sub-section (2) of Section 18-A and the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits such building is situated, shall, if it is not already owner thereof, be deemed to have become licensee in respect of such building or part thereof on such terms and conditions as may be determined by the State Government.

(2) No Gram Panchayat or Municipality shall have the power to transfer by sale, gift, exchange, mortgage, lease or otherwise any building, property or assets transferred to, and vested in, such Gram Panchayat or Municipality, as the case may be, under sub-section (1).

According to the learned counsel for the appellant, prior to insertion of Section 9A, there was no power given to Gram Panchayat to administer the Basic Schools. However, in the same breath it has been argued that since 1964, the appellant-Gram Panchayat had been administering the Basic School, being Primary Pathshala, Wazidpur- 2. We need not go into the question whether prior to the insertion of said Section power vested in the Gram Panchayat to administer the Basic Schools or not, as the same is not relevant for the purposes of this case. It is, however, not denied that by virtue to Section 9A (1)(b), from the date of insertion of the U.P. Amendment Act No. 18 of 2000, all buildings, properties and assets of the Board in respect of a Basic School were to stand transferred to, and vested in, Gram Panchayat within whose territorial limits the Basic School was situated. In view of the fact that the appellant does not dispute that the buildings, properties and assets of Basic School in question being Primary Pathshala, Wazidpur-2, fall within the territorial limits of Gram Panchayat, Murli Chhapra,it has been finally decided by the order dated 28.12.2013 passed by the District Magistrate, Ballia, that by virtue of Section 9A of the Act, the buildings, properties and assets of the said Basic School stood transferred and would be vested in the Gram Panchayat, Murli Chhapra. The same is in accordance with law and in consonance with the provisions of Section 9A of the Act.

The question of the prospective and retrospective applicability of the said provision would not be material as the said Section clearly provides for automatic transfer or vesting of all assets and properties of the Basic School in favour of the Gram Panchayat in whose territorial limits the said school falls. The same would clearly mean that it would be applicable to such schools, which were running on the date of the coming into force of the said amendment Act and not in cases where a new Basic School is started/opened.

As regards the question of transfer of any building, property or asset vested in a Gram Panchayat by virtue of sale, gift, exchange, mortgage, lease or otherwise is concerned, the same would be applicable only if the Gram Panchayat in whose favour the same stands transferred or is vested in by virtue of said provision wants to sell, gift, exchange, mortgage or lease after such vesting. The present is not a case where the Gram Panchayat in whose favour the vesting is there under the said Section is intending to sell, gift, exchange, mortgage or lease in favour of some other Gram Panchayat or party. As such, the said submission of learned counsel for the appellant that transfer of the Basic School in question would be barred by Section 9A(2) of the Act also does not have much force.

The next submission of learned counsel for the appellant that the order dated 28.12.2013 passed by the District Magistrate is without jurisdiction, or has been passed in excess of its jurisdiction, also does not have much force. The said order was passed upon a direction made by the High Court in Writ Petition No. 45454 of 2014 vide order dated 2.9.2013 where the dispute had arisen with regard to where the Basic School in question falls, i.e. under the territorial limits of the village Wazidpur or Murli Chhapra. It was in this context that the direction was given that the District Magistrate shall decide the same after hearing the parties, and on the District Magistrate having decided that the Basic School in question falls in the territorial limits of village Murli Chhapra, the obvious consequence of the same, in terms of Section 9A of the Act, would be that it would be administered by the Gram Panchayat, Murli Chhapra and it is only this what has been directed by the District Magistrate. The same cannot be termed as without jurisdiction as the District Magistrate/ Collector, being a revenue head of the District, has every power to decide the question regarding the territorial limits of a village and in doing so it has come to the conclusion that the Basic School in question falls in the territorial limits of village Murli Chhapra.

The last submission of learned counsel for the appellant is that the claim raised by the respondent no. 5 was highly belated as the provision of Section 9A had become applicable in June 1999, whereas the application was filed by the respondent no. 5 after nearly 14 years on 10.4.2013. The question of limitation would arise only when there is a specific provision under which the claim is to be made within a particular time. In the present case, the transfer or vesting of all the properties of the Basic School was deemed in favour of the Gram Panchayat of the village in whose territorial limits the Basic School falls. As such, if a claim for the same was made after delay, the same would not affect the right of the parties as such right was always there and it was enforced only on the application filed by the respondent no. 5, whereas it ought to have been automatically done immediately after the insertion of Section 9A of the Act.

In view of the aforesaid, the decision of the writ court in dismissing the writ petition and declining to interfere with the order dated 28.12.2013 is fully justified and does not call for any interference in appeal.

For the foregoing reasons, this appeal stands dismissed. There shall be no order as to costs.

 
Dt/- 27.8.2014
 
abhiShek
 

 
(Vijay Lakshmi , J.)           (Vineet Saran, J.)