Jone Medhi And 2 Ors vs The State Of Assam And 4 Ors
2025 Latest Caselaw 1103 Gua

Gauhati High Court

Jone Medhi And 2 Ors vs The State Of Assam And 4 Ors on 17 July, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

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GAHC010173102016




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                              THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/5037/2016
          JONE MEDHI and 2 ORS
          S/O- LAKSHI PRASAD MEDHI, R/O- A.T. ROAD, NEAR PANBAZAR
          OVERBRIDGE, P.O. and P.O.- PALTANBAZAR, DIST.- KAMRUP M, ASSAM.


          VERSUS

          THE STATE OF ASSAM AND 4 ORS
          REP. BY ITS COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, DEPTT.
          OF EDUCATION SECONDARY, DISPUR, GHY- 6.

          2:RESPONDENT 4

Address

3:RESPONDENT 3 Address

Advocate for the Petitioner : MR.U CHOUDHURY, MR.A D CHOUDHURY,MR.A K SARMA,MR. P DUTTA,MR.T CHAKRABORTY

Advocate for the Respondent : , ,,SC, SECONDARY EDUCATION,GA, ASSAM

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI For the Petitioners : Shri T Chakraborty, Advocate.

For the Respondents : Ms. P Das, SC, Secondary Education Deptt., Shri N Das, Govt. Advocate, Assam.

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        Date of Hearing         :     15.07.2025.

        Date of Judgment       :      17.07.2025.



                           Judgment & Order (Oral)

The subject matter of challenge in this petition instituted under Article 226 of the constitution of India is a communication dated 28.06.2016 issued by the Headmistress, Guwahati Madrassa High School-respondent no.4 whereby the petitioners have been directed to vacate their rented premises.

2. As per the facts projected in the petition instituted by three petitioners, they are in occupation of certain premises which were given on rent by the School Managing Committee of the Gauhati Madrassa High School when the said institution was at a venture stage. So far as the petitioner no. 1 is concerned, such agreement was entered in the year 1969 with the father of the petitioner no.1 by the Managing Committee which is continuing. Likewise, there was a rent agreement with the petitioner no.2 since the year 1971 and is continuing and the last renewal was in the year 1996. So far as the petitioner no.3 is concerned, such agreement with the Managing Committee is of the year 1995. It is claimed that the petitioners are running certain businesses from the aforesaid premises in accordance with law. It is contended that a communication was issued on 07.06.2016 by the Director of Secondary Education to the Headmistress of the School to take steps for removal of the unauthorized occupants. Accordingly, the respondent School had taken a resolution on 25.06.2016 to serve notice upon the petitioners. It is the aforesaid action which is the subject matter of challenge in the present writ petition.

3. I have heard Shri T Chakraborty, learned counsel for the petitioners. I have also heard Ms. P Das, learned Standing Counsel, Secondary Education Department, Assam Page No.# 3/7

as well as Shri N Das, learned State Counsel, Assam.

4. Shri Chakraborty, learned counsel for the petitioners has submitted that the School in question was at a venture stage when the rent agreements with the petitioners were entered into by the School Managing Committee. He has submitted that subsequently the Assam Madrassa Education (Provincialization) Act, 1995 (Act of 1995) was enacted whereby, the services of the teaching and non-teaching staff were provincialized which included the respondent School. He has drawn the attention of this Court to Section 10 of the said Act which is with regard to vesting of land, building and other properties. It is submitted that the petitioners are tenants under the School Managing Committee and even after the Provincialization Act, 1995 had come into operation, since the land, building and other properties vested with the School in question, their tenancy are continuing and they are paying the rent. He has submitted that the impugned communication dated 28.06.2016 and the subsequent action for their eviction are wholly unauthorized.

5. The learned Counsel for the petitioners has also submitted that though the Assam Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is available, the said Act will not be applicable to the petitioners as they are not in unauthorized occupation. He has emphasized that the petitioners are all bona fide tenants of the School in question and by the operation of section 10 of the Act of 1995, such tenancy is existing. He has also drawn the attention of this Court to the fact that the Act of 1995 has been repealed in the year 2020 by the Assam Repealing Act, 2020 which, however has a saving clause. He has submitted that as per Section 2(2) of the Repealing Act, any action done under the Repealed Act would be deemed to have done validly. He has accordingly submitted that if at all the petitioners are required to be ejected/ evicted, recourse has to be taken to the Urban Areas Rent Control Act, 1971. He has submitted that the respondent authorities cannot forcefully evict the Page No.# 4/7

petitioners.

6. Per Contra, Ms. P Das, learned Standing Counsel, Secondary Education Department has submitted that the petitioners do not have any legal right to continue with the premises which are under their unlawful occupation. She has submitted that during the proceeding of the present writ petition, an order was passed on 25.11.2024 whereby a report was directed to be obtained from the Inspector of Schools, KDC, Panbazar. She has also drawn the attention of this Court to the affidavit-in-opposition filed on 04.04.2025, including the annexures thereof and has submitted that the petitioners along with few others are running commercial establishment from the School premises which is against the interest of the educational institution. She has specifically drawn the attention of this Court to a letter dated 28.11.2024 issued by the Inspector of Schools, Kamrup (M) District Circle to the Director of Secondary Education, Assam, wherein, the aspect of disrupting and polluting the academic atmosphere by the commercial establishment has been highlighted. She has also drawn the attention of this Court to the averments made in paragraph 7 of the same affidavit-in-opposition wherein the position regarding unauthorized occupation and running of commercial establishments by the petitioners along with few others have been put in a tabular form.

7. The learned Standing Counsel has accordingly submitted that the writ petition is liable to be dismissed and the interim order be vacated.

8. The rival submissions have been duly considered and the materials placed on records have been carefully examined.

9. The plank upon which the writ petition has been structured is the rent agreements allegedly entered by the petitioners or their predecessors with the School Page No.# 5/7

Managing Committee. Though for petitioner no.1, an agreement of 1969 has been annexed to the petition which was with the father of the petitioner no.1, there is no further agreement for renewal. Likewise, so far as the petitioner no.2 is concerned, though an averment has been made that the agreement is running since 1971, a renewal has been shown to be of 1996. So far as the petitioner no.3 is concerned, the agreement is from the year 1995. It also transpires from the pleadings that the petitioners are running commercial establishments from the premises in question which, admittedly is within the campus of the educational institution.

10. While this Court will not embark upon the justification or otherwise of the School Management Committee to let out any part of the property while it was in the stage of a Madrassa, it is not in dispute that by the Act of 1995, the services of the teaching and non-teaching staff were provincialized along with that of the Institution. The Act of 1995 also contains a clause for vesting of land, building and other properties which has been emphasized by the petitioners. For ready reference, Section 10 is extracted herein below:

"10. Vesting of land, building and other properties-

The land buildings or any other property owned by any Senior Madrassa Title Madrassa or Arabic College, whose employees' services are provincialised as per the provisions of this Act shall continue to be owned by the respective Senior Madrassa, Title Madrassa or Arabic College after such provincialisation ."

11. This Court has, however also taken note of the fact that the Act of 1995 has been repealed by the Assam Repealing Act, 2020. Though much emphasis has been laid upon Section 2(2) of the said Repealing Act that all actions would be saved, this Court is of the opinion that such saving clause is only for the action done or taken under the Act. For ready reference, section 2(2) is extracted herein below:

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"2(2) Notwithstanding such repeal of the Acts as mentioned in sub-section (1) above, anything done or any action taken under the Acts, so repealed, before the date of commencement of this Repealing Act, shall be deemed to have been validly done or taken under the repealed Act."

12. Section 10 of the Act of 1995 had laid down that the vesting of land, building and other properties would be vested on the respective Madrassas. However, the said Section along with the Act itself has been repealed and in the considered opinion of this Court, the saving clause of the Repealing Act would not revive or keep alive the aforesaid Section.

13. Be that as it may, after repeal of the Act, the institution in question has been taken over by the Government and is presently functioning as Guwahati High School.

14. As regards the nature of the business, though it is strenuously urged that the businesses run by the petitioners are lawful, the question is not on the nature of the business but the very aspect of running a business itself from an educational institution. The educational institution in question has a campus which is required to be conducive for an academic atmosphere and it is the bounden duty, not only of the School but also of the authorities and all the concerned citizens to ensure that such an atmosphere is maintained. The aspect of running business establishment from the premises of the educational institution cannot be said to be in consonance with either the Act or the greater public interest of having a conducive academic atmosphere.

15. Though an argument has been advanced that the ejectment has to be undertaken in accordance with law, this Court is unable to accept the said argument inasmuch as, there is no question of attornment of the tenancy with the Government.

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Though the Government has the right to let out any space in accordance with law, in absence of any such agreement, the petitioners cannot claim a right to continue to retain a space within an educational institution.

16. The power to be exercised under the writ jurisdiction conferred by Article 226 of the Constitution of India is essentially a jurisdiction of equity wherein the bona fide of the party approaching this Court is of paramount importance. The aspect of public interest is also another equally important aspect which is required to be kept in mind. In the considered opinion of this court, the larger public interest involved in having a conducive atmosphere in an educational institution would outweigh the interests or rights, if any, of the petitioners. It is a settled principle that under Article 226 of the Constitution of India, a High Court issues writs which are prerogative and require exercise of sound discretion. The impact of an order upon the public in general is also a relevant consideration germane to the factors and circumstances involved in the case.

17. In view of the aforesaid discussions, this court is of the opinion that no case for interference has been able to be made out by the petitioners and accordingly, the writ petition stands dismissed.

JUDGE

Comparing Assistant