Nenhey Singh & 2 Others vs State Of U.P. & 8 Others
2014 Latest Caselaw 9406 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court						AFR
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 43710 of 2014
 

 
Petitioner :- Nenhey Singh & 2 Others
 
Respondent :- State Of U.P. & 8 Others
 
Counsel for Petitioner :- Sunil Kumar
 
Counsel for Respondent :- C.S.C.,Nisheeth Yadav,Yatindra
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Pradeep Kumar Singh Baghel,J.

These proceedings have been instituted in the public interest by three residents of Jhangirabad in the district of Bulandshahar. There is a land bearing Khasra Nos. 2427, 2430 and 2432, admeasuring 32 Bighas. The land was acquired in 1907 for the purposes of a school. The property register card (annexed at Annexure CA-2 of the Counter filed by the Zila Panchayat, Bulandshahar) clearly reflects that the land was acquired on 17 January 1907 against the payment of compensation "for school purposes". A primary school has been constructed and is in existence on the land for well over a hundred years. Initially, an advertisement was published on 25 January 2013 by the Zila Panchayat for auctioning the standing trees situated inside the school campus. The headmaster of the school filed an objection following which a report was called from the Education department. The Block Education Officer, Jhangirabad in his report dated 9 February 2013 stated that the land of the school was not vested in the Zila Panchayat. The cause of action which led to the filing of the writ petition was that the Zila Panchayat, Bulandshahar moved the State Government and obtained its permission on 27 January 2014 for the construction of thirty shops on the land. The permission of the State was granted on the basis of a Government Order dated 27 December 1997. In these proceedings which have been instituted in the form of a PIL, the petitioners have called into question the legality of the permission granted on 27 January 2014 by the Special Secretary to the State Government and have sought consequential directions for immediate action to protect the land where the school is situated.

Having due regard to the importance of the issue which has been raised in these proceedings, this Court had furnished an opportunity to the respondents to file their counter affidavits. For the purposes of these proceedings and having due regard to the parameters of the jurisdiction under Article 226 of the Constitution, it would not be appropriate for this Court to enter upon any disputed question of fact or title and we shall proceed on the basis of the admitted facts as they stand, and determine whether the permission which has been granted is lawful.

The U.P. Basic Education Act 1972 was enacted to provide for establishment of a Board for Basic Education and for matters connected therewith. The Statement of objects and reasons indicate that the responsibility for primary education had thus far rested with the Zila Parishads in rural areas and with Municipal Boards and Mahapalikas in urban areas. The administration of education at the basic level by local bodies was not satisfactory, and was deteriorating. Hence, the legislation was enacted to reorganize, reform and expand elementary education. Consequently, the State Government decided to transfer the control of primary education from local bodies to the Board of Basic Education and it is in furtherance of that object that the legislation was enacted.

Section 9-A which was inserted by U.P. Act No. 18 of 2000 with effect from 21 June 1999 deals with control of teachers and properties of basic schools. Sub-section (1) of Section 9-A provides that 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"

Sub-section (2) of Section 9-A then provides as follows:

"(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)."

Section 10 defines the functions of Zila Panchayats in the following terms:

"Functions of Zila Panchayats.--Without prejudice to the powers and functions of Zila Panchayats under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, every Zila Panchayat shall, subject to superintendence and directions of the Board or the State Government perform all or any of the following functions, namely:

(a) to prepare schemes for the development, expansion and improvement of basic schools in the rural areas of the district;

(b) to supervise generally in such manner as may be prescribed the activities of Gram Panchayats in the district with regard to basic education;

(c) to perform such other functions pertaining to basic education as may be entrusted to it by the State Government."

Under Section 10-A, a specific provision is made in regard to the functions of Municipalities for the establishment, administration, control and management of basic schools in municipal areas.

Section 10-A is to the following effect:

"Functions of Municipalities.--Without prejudice to the powers and functions of Municipalities under the Uttar Pradesh Municipal Corporations Act, 1959 or the Uttar Pradesh Municipalities Act, 1916, as the case may be, every Municipality shall, subject to superintendence and control of the Board or the State Government, perform all or any of the following functions, namely:

(a) to establish, administer, control and manage basic schools in the Municipal area;

(b) to take all such necessary steps as may be considered necessary to ensure punctuality and attendance of teachers and other employees of basic schools;

(c) to prepare schemes for the development, expansion and improvement of such basic schools;

(d) to promote and develop basic education, non-formal education and adult education in the Municipal area;

(e) to make recommendation for minor punishment in such manner as may be prescribed on a teacher or other employee of a basic school situate within the limits of the municipal area."

Section 13-A gives an overriding effect to the provisions of the Act notwithstanding anything contained in the United Provinces Panchayat Raj Act, 1947, the Uttar Pradesh Municipalities Act, 1916 and the Uttar Pradesh Municipal Corporation Act 1959.

Under sub-section (2) of Section 18-A where any building or part thereof belonging to a local body was on the appointed day occupied by it for the purposes of any basic school, the Board shall, with effect from the said day, be deemed to have become a licensee on behalf of the local body in respect of such building or part on such terms and conditions as the State Government may by general or special order determine.

These statutory provisions contain a comprehensive legislative scheme for the regulation and control of basic education. Section 10 confers upon the Zila Panchayat, subject to the superintendence and directions of the Board or the State Government several statutory functions. These include the preparation of schemes for development, expansion and improvement of basic education schools in rural areas of the district, supervision over the activities of Gram Panchayats in the district in respect of basic education and performance of other functions as may be entrusted by the State Government pertaining to basic education. Similar provisions are made in Section 10-A in regard to the functions of the Municipalities within municipal areas. Under Section 10, the Zila Panchayats are duty bound to act subject to superintendence and directions of the Board or the State Government and in furtherance of the basic objects, which are the development, expansion and improvement of basic schools in rural areas.

Valuable properties across the State have been acquired, as the present case indicates well over a century ago, to subserve the cause of basic education. Many of these properties may be a source of commercial exploitation and gain. Human avarice and greed unfortunately know of no limits. These properties have become a source of coveted gain for commercial exploitation to unscrupulous persons, often enough to public officials. But, if the rampant conversion of properties which have been acquired for the purposes of basic education is permitted to take place on the altar of commercial expediency that would defeat the object and purpose underlying the enactment of the legislation. With the right to primary education being a fundamental right and the enactment by Parliament of the Right to Children to Free and Compulsory Education Act, 2009, the importance of primary education cannot adequately be underscored.

The State Government in the submission which has been urged before the Court by the learned Additional Advocate General has essentially relied upon the provisions contained in Section 103 and Section 107 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961.

Section 103 provides for the vesting of property in Zila Panchayat in the following terms:

"Property vested in Zila Panchayat.--Subject to any reservation made by the State Government, all property of the nature specified in this section and situated within the district, shall vest in and belong to the Zila Panchayat and shall with all other property which may become vested in the Zila Panchayat, be under its direction, management and control and shall be held and applied for the purpose of this Act, that is to say--

(a) all public buildings of every description which have been constructed or are maintained out of the Zila Nidhi;

(b) all public roads, which have been constructed or are maintained out of the Zila Nidhi and the stones and other materials thereof and also all trees, erections, materials, implements and things provided for such roads; and

(c) all land and other property transferred to the Zila Panchayat by Government, or by gift, sale or otherwise, for local public purposes."

Section 107 provides as follows:

"Power to transfer property.--(1) Subject to any restriction imposed by or under this Act, a Zila Panchayat or a Kshettra Panchayat may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in it, not being property held by it in trust, the terms of which are inconsistent with the right so to transfer.

(2) Notwithstanding anything contained in sub-section (1), a Zila Panchayat or a Kshettra Panchayat may, with the sanction of the State Government, transfer to Government any property vested in it, but not so as to affect any trust or public rights to which the property is subject:

Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the Zila Panchayat or the Kshettra Panchayat, as the case may be, and otherwise complying with all conditions in respect of contracts imposed by or under this Act."

In granting permission or sanction for the construction of shops in the present case on the land which was acquired for the purposes of the school, the State Government has relied upon a Government Order dated 27 December 1997.

The Government Order dated 27 December 1997 merits a close scrutiny. The Government Order dated 27 December 1997 on its plain terms applies to those lands of the Zila Panchayats which were of the ownership of the Zila Panchayats and which are of a commercial nature. Ex facie, the land in the present case, does not meet the description of what is stated in the Government Order dated 27 December 1997. The land which has been acquired in 1907 for the purposes of a school cannot by any stretch of imagination be regarded as a land of commercial nature. The mere fact that an officer of the Zila Panchayat has cast an evil eye on the land in order to tap its commercial value would not lead to the land which is acquired for the purposes of a school being converted into or treated in law as being land of a commercial nature. The land which has been so acquired must continue to be impressed with the character for which it was acquired. Any attempt, as in the present case, to deal with the land for commercial purposes by allowing the construction of shops must be invalidated. Any such dealings would be fundamentally contrary to the underlying scheme, object and provisions of the Basic Education Act, 1972.

The provisions of Section 107 (1) of the U.P. Kshettra Panchayat and Zila Panchayat Adhinium, 1961 cannot be read in a manner that would negate the basic purpose underlying the vesting of such land. Even Section 10 of the U.P. Basic Education Act, 1972 makes the Zila Panchayats subject to the superintendence and directions of the Board of Basic Education. Under Section 10, the Zila Panchayat is vested with the function inter alia to prepare schemes for the development, expansion and improvement of basic schools in the rural areas of the district, to supervise the activities of Gram Panchayats in the district with regard to basic education and to perform such other functions pertaining to basic education as may be entrusted to it by the State Government. This power cannot be misused to cut at the very foundation of basic education by authorizing the construction of commercial shops on land which was acquired for the purpose of a school.

The manner in which permission was sought of the State Government and, for that matter, the manner in which the State Government has granted its permission shows that all the authorities have acted in a callous manner, oblivious of the impact which such a decision would have on the need to preserve land which was acquired for the purposes of basic education and for primary schools. The State Government has relied on a Government Order which ex facie has no application. We may note that the petitioners have made certain allegations against the ninth respondent who is the Apar Mukhya Adhikari of the Zila Panchayat. It has been alleged that the Central Bureau of Investigation is conducting an investigation. For the purposes of these proceedings, we clarify that it has not been necessary for the Court to enter upon this area since on a plain application of the legal standards to which we have referred in the earlier part of this judgment, the impugned decision is patently contrary to law and would have to be quashed and set aside.

We, accordingly, allow the petition and set aside the permission granted on 27 January 2014 by the Special Secretary to the State Government for the construction of shops on the land of the school.

We direct in consequence the District Magistrate, Bulandshahar to take all necessary administrative steps to ensure that following the setting aside the permission of the State Government by this Court, the land shall be restored to its original position.

The petition is, accordingly, disposed of. There shall be no order as to costs.

Order Date :- 2.12.2014		          (Dr.D.Y.Chandrachud,C.J.)
 
RK
 

 
						                  (P.K.S. Baghel,J.)