Maharaja Harendra Kishore Inter ... vs The State Of Bihar
2023 Latest Caselaw 4164 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.3882 of 2023
     ======================================================

Maharaja Harendra Kishore Inter College through its Principal-cum-Secretary namely Jai Chandra Giri (Male), aged about 55 years Son of Harihar Giri, resident of New Gopalpur, P.O. and Police Station- Motihari, District- East Champaran, Bihar.

... ... Petitioners Versus

1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.

2. The Department of Education, Bihar, through Additional Chief Secretary, Government of Bihar.

3. The Revenue and Land Reforms Department, through Additional Chief Secretary, Government of Bihar.

4. The Bihar School Examination Board, Sinha Library Road, Patna through its Secretary,

5. The Director Academic, Bihar School Examination Board, Sinha Library Road, Patna.

6. The Collector, East Champaran (Motihari).

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr.P.N. Shahi, Sr. Advocate Mr.Pravashankar Mishra, Advocate Mr.Rajeev Shekhar, Advocate For the BSEB : Mr.Manish Kumar, Advocate For the State : Smt. Binita Singh, SC-28 Mr.Nishant Kumar Jha, AC to SC-28 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 31-08-2023

Heard Mr. P.N. Shahi, learned senior counsel assisted

by Mr. Pravashankar Mishra, learned Advocate for the

petitioner, Mr. Manish Kumar, learned counsel for the Bihar

School Examination Board, Patna and Ms. Binita Singh, learned

SC-28 for the State.

2. This writ application has been filed seeking the Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

following reliefs:

"i. To issue appropriate, rule/rules, direction/directions, writ/writs in the nature of Mandamus for directing the concerned Respondent authorities to grant further affiliation in favor of the petitioner college from the Bihar School Examination Board, Patna for intermediate course in Arts, Science and Commerce stream for session 2023-25. ii. To issue an appropriate writ in the nature of certiorari for quashing the office order contained in letter no. BSEB(SS)Coll-Estsb/3554/D-2022 dated 30.09.2022 (Annexure-6) by issued under the signature of Director Education, Bihar School Examination Board Respondent no. 5 by which the petitioner college has been directed to furnish necessary documents including the lease deed. iii. To issue directions to concerned respondent authority to implement the order of this Hon'ble Court passed in CWJC No. 4311 of 1982 in true spirit and also they may be directed to execute the lease deed in the favour of the petitioner college.

iv. To issue directions to concerned respondent authority not to disturb the possession of land and building of the petitioner college during the pendency of this writ application.

v. To issue directions to concerned respondent authority to protect the status of petitioner college as this institution has been running since 1979 for the local students and providing education facilities to the needy people. vi. And any other relief or reliefs for which the petitioner be found entitled in law be granted to him."

3. By filing interlocutory applications being I.A. No.

01/2023 and I.A. No. 02/2023 the petitioner has added some

more reliefs and has brought certain facts with the interlocutory

applications which have been treated as part and parcel of the

writ application vide order dated 29.08.2023 passed by this

Court. Those prayers are also being reproduced hereunder for a

ready reference:

I.A. No. 01 of 2023

"vii. To issue a writ in the nature of certiorari for quashing Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

the letter contained in letter no. BSEB(SS)Coll-Estab- 383/D-2023 issued under the signature of Director Academic Bihar School Examination Board being no. 953 dated 06.02.2023 (Annexure-6).

viii. To issue a writ, order or direction in the nature of mandamus directing the concerned Respondent authorities to grant affiliation in favor of the petitioner college for the session of 2022-24.

ix. To issue a writ, order or direction in the nature of mandamus directing the concerned Respondent authorities to allow admission and registration of the students in the session of 2022-24.

x. To any other order or orders which your lordships deem fit and proper under the circumstances of the case may be passed."

I.A. No. 02 of 2023

"xi. To issue an appropriate writ/order/direction in the nature of Mandamus commanding the respondents to allow the petitioner to get admission of the new student in the current session.

xii. To issue an appropriate writ/order/direction in the nature of Mandamus commanding the respondents to include the name and publish the list on the website www.ofssbihar.in through the advertisement no. PR 94/23. xiii. To issue an appropriate writ/order/direction in the nature of Mandamus for quashing the letter issued by the respondent authority contained in letter no. BSEB(SS)Co- Estats 8/6D-2023 dated 03.04.2023, by which the petitioner has been directed to supply list of students studying in the current session for purpose of tagged with another college. xiv. To any other order or orders which your lordships deem fit and proper under the circumstances of the case may be passed."

4. At this stage, the bone of contention between the

parties i.e. the petitioner and the Bihar School Examination

Board (hereinafter referred to as the "Board") is the

communication as contained in letter no. BSEB(SS) Coll-

Estab-383/D-2023 dated 06.02.2023 whereby and whereunder

the Board has taken a decision to reject the application of the

petitioner seeking affiliation of the Inter college and has decided Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

to cancel the affiliation of the petitioner and the intermediate

level Code (34006) with effect from the academic session 2022-

2024 and it has been further decided that in case students have

been admitted in the said college for the session 2022-24, then,

the arrangements for their studies and examination will be made

by the Board.

5. Learned counsel for the Board has brought to the

notice of this Court the communication contained in memo no.

816 dated 03.04.2023 issued by the Director (Education) to the

District Education Officer, East Champaran vide Annexure '12'

to I.A. No. 02/2023, whereby and whereunder the District

Education Officer has been directed to tag the students of this

college with the nearest affiliated/Government Plus Two college

and inform him. At the same time, the Director (Education)

reprimanded the District Education Officer that despite a lapse

of two months there was no information to him in this regard

even as the matter relates to the studies of the students and their

appearing in Class XIth examination.

6. It is still not known whether the students have been

tagged with any nearest school.

7. On perusal of Annexure '6' to the I.A. No. 02/2023,

it would appear that basically two grounds have been stated for Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

rejecting the application of the petitioner for affiliation for the

session 2022-24. The first ground is that the college does not

have a land registered in it's name and the second ground is that

number of teachers in the school are less than the parameters as

indicated in the Bihar School Examination Board Affiliation

Regulation 2011 (as amended up to date). This Court has been

informed by learned counsel for the Board that there is a

shortage of one teacher in the science faculty and one teacher in

the commerce faculty.

8. Contesting the grounds on which the request for

affiliation of the college has been rejected, learned senior

counsel for the petitioner has taken this Court through the

records particularly the two judgments dealing with the subject.

The first judgment is of the Additional Collector passed on

06.09.1982 in an appeal preferred by the State being case No.

12/81-82. In the said case the State of Bihar claimed that the

premises in question was a government premises and the

respondent who was the convener of this college was an

unauthorised occupant. The Additional Collector went through

the records and finally concluded in the following terms:-

" From the discussions made so far I have come to the conclusion that the premises in question has acquired nature of Govt. premises and that Respondent is only 'technically' in unauthorized occupation of the same but Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

for the various reasons stated earlier in this order, it will not be just and proper to pass an order of eviction against the respondent for the present. Rather, it will be proper in this case to regularise the unauthorised occupation by granting a lease to Respondent. The prayer of 99 years lease as made by the Respondent appears to be a long period for lease. The convention of 30 years lease as established by ex-proprietor Bettiah Estate appears, to my mind, to be fair and reasonable. State of Bihar, should, therefore, grant a lease of 30 years to the Respondent or of any other reasonable/less period as it considers proper. While leasing out premises in question, State may have a right to charge rent at penal rate from the respondent for the unauthorized period of occupation. The premises in question has a big area and has four buildings therein. Therefore, the Respondent will have to agree to any proposal of re-adjustment to be made by Government in matter of allotment if and when felt necessary by State to do so."

9. It appears that the said order was assailed by the

convener of the college in CWJC No. 4311/1982 which was

heard and disposed of vide order dated 6th August, 1992. This

Court held that the direction of the Additional Collector for the

settlement of the land in favour of the college for a period of 30

years or any reasonable period had become final in view of the

facts mentioned therein and that the case of the petitioner has to

be considered in the light of the directions given by the

Additional Collector in the impugned order. In paragraph '9' of

it's judgment the Hon'ble Division Bench issued the following

directions:

Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

"9. Learned counsel for the petitioner during the course of argument draw our attention to the fact that an application for grant of lease in favour of the college had already been filed before the Collector of the District and no final order has been passed on the aforesaid petition. In that view of the matter, we direct the respondents to consider and dispose of the aforesaid application in the light of the directions as contained in annexure-3 within a period of three months from the date of receipt/production of a copy of this order."

10. It is an admitted position that the order of the

Hon'ble Division Bench of this Court has not been complied

with. The petitioner college was allowed to continue but without

considering the direction of the Additional Collector which was

affirmed by the Hon'ble Division Bench to consider settlement

of the land in favour of the college.

11. This Court has been informed that in fact the State

of Bihar had also preferred a writ application against the order

of the Additional Collector giving rise to CWJC No. 3845/1982

which was heard and dismissed by this Court.

12. At this stage, in the counter affidavit filed on

behalf of the State, a plea has been taken that the file of the old

matter has not been traced to verify as to what action has been

taken by the predecessor in office of the answering respondent

no. 6 on the petition filed by the petitioner for lease. It is stated

that as per Chapter 2(kha) of the Bihar Government Estate

(Khasmahal) Rule 2011, any government land is to be let-out on

payment of recent market value of the land and 5% of market Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

value of the land as rent for the same. It is stated that no such

offer has been received from the petitioner and in case such such

offer is received the matter will be enquired into and will be

disposed of in accordance with law.

13. In the aforementioned background, this Court has

to take a view as to whether the respondent Board is required to

reject the affiliation application only by taking note of the fact

that the college is not having a land in it's name or the Board

while considering the said ground for purpose of rejection of the

request for affiliation has to take into consideration the

circumstances which are peculiar to the facts of this case and in

which the inaction writs large on the part of the State inasmuch

as the State has not taken any decision over all these years with

respect to grant of lease to the petitioner despite the direction of

this Court as contained in the judgment dated 6 th August 1982

passed in CWJC No. 4311/1982.

14. To this Court, it appears that no doubt the Board

has power to reject the request for affiliation on the grounds

stated under Rule '3' of the Affiliation Regulation of 2011, such

powers are required to be exercised reasonably particularly in a

case like the present one where the college is running for last

more than 40 years and an action towards cancellation of Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

affiliation would lead to the closure of the college as also it will

have a drastic effect on the studies of the students who had

already been admitted in the session 2022-24. In any case the

Board was required to consider as to whether a retrospective

cancellation of affiliation of the college would be just and

proper and in accordance with law in the present case.

15. In the opinion of this Court, the case like the

present one is required to be dealt-with with some sort of

circumspection and care. This Court finds that the decision to

reject the request for affiliation of the school and retrospective

cancellation of the affiliation on this ground suffers from non-

consideration of the relevant materials and it is required to be

considered afresh after giving appropriate opportunity to the

petitioner to approach the concerned department of the

government from where a decision is to be taken with respect to

the grant of lease to the petitioner college. The inaction on the

part of the State Department in not taking appropriate steps

despite judgment of the Hon'ble Division Bench of this Court

cannot be to the disadvantage of the petitioner.

16. So far as the second ground of shortage of the

teaching strength is concerned, there is shortage of one teacher

in two faculties and it is the stand of the petitioner that the Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

matter relating to the constitution of the managing committee of

the college is pending with the Board and for that reason only

the fresh appointment has not taken place. It is submitted that as

soon as the Board clears the constitution of the managing

committee, the petitioner would immediately fill up the vacant

post.

17. As regards removal of discrepancies, learned

counsel for the Board has submitted that prior to passing of the

impugned order, the petitioner was called upon to remove the

discrepancies which would be evident from Annexure '8' to I.A.

No. 01/2023 but the discrepancies with regard to the shortage of

teacher in the science and commerce faculty was not removed.

However, in this regard, learned senior counsel for the petitioner

points out that the petitioner had sent it's response to the Board

which would be evident from Annexure '9' to the same

interlocutory application, but, the response of the petitioner has

not been considered. In the counter affidavit of the Board, there

is no denial that the petitioner had responded. At the same time,

there is no statement that the reply of the petitioner was

considered before passing of the impugned order.

18. Learned counsel for the Board has though

submitted that the Board is empowered to cancel the affiliation Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

of the college and reject the application of the petitioner college

on the grounds stated under Rule 3 of the Affiliation Regulation

2011, learned counsel is unable to demonstrate that the facts

which are involved in the present writ application were ever

considered by the Court. In the opinion of this Court, existence

of power is one thing but exercise of power would be another

thing.

19. The submission on behalf of the petitioner is that

the drastic powers conferred upon the Board are required to be

exercise with more responsibility and compassion keeping in

view the public function of imparting education being

performed by the petitioner college. This Court finds force in

this submission.

20. Considering the entire facts and the submissions

as taken note of hereinabove and the opinion of this Court

expressed in the preceding paragraphs, this Court sets-aside the

impugned order as contained in Annexure '6' to the I.A. No.

01/2023 and the consequential action, if any, taken pursuant to

the same are set-at-naught.

21. The Board is directed to consider the application

of the petitioner college afresh after giving an opportunity to the

petitioner to place all such materials which may be relevant to Patna High Court CWJC No.3882 of 2023 dt.31-08-2023

the decision making process and after consideration of all the

materials the Board shall take an appropriate decision within a

reasonable period.

22. The petitioner is at liberty to pursue his remedy as

may be advised to him in connection with the lease of the land

in accordance with the judgment of this Court in C.W.J.C. No.

4311 of 1982.

23. This Writ Application is allowed to the extent

indicated hereinabove.

(Rajeev Ranjan Prasad, J.) Rajeev/-

AFR/NAFR
CAV DATE
Uploading Date      01.09.2023
Transmission Date