Patna High Court
The Association Of Independent ... vs State Of Bihar And Ors. on 28 September, 2001
Equivalent citations: AIR 2002 PATNA 9, (2001) 3 BLJ 747 (2001) 4 PAT LJR 592, (2001) 4 PAT LJR 592
Author: Shashank Kumar Singh
Bench: Shashank Kumar Singh
JUDGMENT Ravi S. Dhavan, C.J.
1. This petition was brought as a Public Interest Litigation by the Association of Independent Schools, Bihar, bringing to the notice of the Court the events which are about to take place, over which the media otherwise is agog. The action of the State-respondents has affected the educational Institutions within the Metropolitan area of Patna. The event which the petitioners' Association is speaking of is a large rally which has been organised at Gandhi Maidan , Patna. The rally is a convention of about 2,00,000, Mukhiyas, elected members of Panchayat Samitis and Zlla Parishads. These are institutions which have recently been revived to play their part, locally, as laid down in the chapter, the Panchayat, Part XI of the Constitution of India. They are institutions of self Government and their functions are prescribed under the Bihar Panchayat Raj Act, 1993.
2. To hold this all-panchayat-convention, schools and colleges and institutions of higher education have been closed for 29 Sept. 30 Sept. 1, Oct. 2, October and 3 Oct. 2001. That, there is a Sunday and another holiday in between is not relevant to the issue.
3. On behalf of the petitioner's Association, it has been contended that normally this would have nothing to do with the constituents of their association or the institutions which run the schools, colleges or institutions of higher education. Patna University and Magadh University are also affected by the event. To house and accommodate this 2,00,000. strong convention of so called delegates, Invited by the State Government for the five indicated days, accommodation at 242 educational Institutions, State managed and otherwise have been earmarked and taken over under State directions issued through the District Magistrate, Patna. These communications are dated 11 Sept. 2000 (Annexure 1), 18 Sept. 2001 (Annexure 2) and 19 Sept. 2001 (on record, filed by the Additional Advocate General). These communications are reproduced :
(Vernacular matter omitted)
4. The communication addressed to educational Institutions require, declare and give directions In effect :
(a) Take notice of the fact that there would be a convention at Gandhi Maidan and that approximately 2,00,000 delegates would be arriving in the City and for the purposes of accommodating them the institutions under notice have been required to close the Institutions between 29 Sept., 2001 to 3 Oct., 2001.
(b) To make arrangements by offering rooms whether class-rooms or offices and set apart the accommodation for use by the invitees to the convention.
(c) The Principal of the College or a teacher is to remain in attendance for the duration of the convention corresponding to the period when the schools will be closed and the accommodation will be utilised effective 29 Sept, to 3 Oct., 2001.
5. Further, the petitioners contend that now there will be consequential effects, for never before have the premises of the schools and colleges been utilised in such a manner except during the elections. But the present State action has even surpassed that because during general elections requisition, as above, has the authority of the law. The present action does not. The other exceptions are war time measure, but no war is on. The consequences to be suffered by the educational institutions are drastic. Within the premises of these educational institutions will be dug bore holes for camp lavatories and urinals, make shift facilities like bored tubewells, hand pumps, special electricity connections and the accommodations will be fitted with light and fans. In addition, they have been required to set apart the school buses along with drivers to remain In attendance to cater to this convention.
6. On behalf of the State Government, learned Additional Advocate General has given figures of the institutions which are under directions to close between 29 Sept. to Oct., 2001 both days inclusive and the nature of works will be carried out on their grounds. The statistics :
Educational institutions 242 to be closed Work to be carried out on the ground and Premises of these Educational Institutions Lavatories and urinals 5,000 Approx.Board tube wells 76
Electricity light con- 5,000 Approx. Fans 4,600 Camp fire places for cooking not accounting for cooking fires by cate ring food contractors) 150 School buses taken over 176 Set of drivers and conduc- tors to each vehicle 176X2 352
7. The contention is that these notices have been issued upon directions of the State Government forwarded by the district administration, and thus hardly left the educational institutions under notice with any choice except to fall in line with the directions which were given by the State Administration.
8. The contention of the petitioners is that whatever be the intention of the State Government in calling the convention, if any part of it affects their privacy, freedom and liberty, they are entitled to come to the High Court by the present petition. In addition, they have challenged the very policy of calling the convention and misplacing the Panchayats, institutions of local self Government, by summoning them to congregate under the thumb of the Government. '
9. The petitioners pleaded that this is an arbitrary decision . This will affect lives of the citizens and particularly the teachers and the taught. The children will not be able to go to school and the teachers will not be able to teach. All this is because an unwarranted political rally of the members of the Panchayats and Zila Parishads has been asked to congregate in Patna. The law, Bihar Panchayat Raj Act, 1993 does not provide for holding such a rally nor can such rally be justified under Part IX, the Chapter : PANCHAYAT in the Constitution of India. It is contended that the manner in which the educational institutions will see visitation arranged by the State Government will amount to lurking house trespass, if not trespass. It deprives the affected citizens of their freedom guaranteed under Article 19, particularly 19(l)(d). It deprives the affected citizens of their personal liberty violating Article 21. It deprives the affected citizens of their freedom of conscience by coercing them against their conscience not to send the children to school and prevents teachers from teaching and this violates Article 25. It deprives the institutions which run the schools of their property against their will and conscience without authority of law and this violates Article 300A.
10. The defence on behalf of the State-respondents by the Additional Advocate General was that the petitioners should have come earlier before the Court instead of bringing the matter at the last moment. In an answer to the submission that no law authorised the State Government to walk into the school or take over the premises of the schools, colleges and the University for accommodating the delegates of the convention, learned Additional Advocate General fairly acknowledged that there is no law under which directions and orders were issued for taking over the premises and grounds of educational institutions between 29 Sept. to 3 Oct., 2001. Learned Additional Advocate General was at odds to explain the situation. He pleaded that the administration only made a request to take over the accommodation and the premises of the Institutions. He submitted that in case any management of an educational Institution had any objections then it could have indicated it to the district authorities, in which case that Institution would have been spared the occupation intended for utilisation to meet the scheduled convention. It was explained that it was assumed that the management of the institutions had acquiesced to the situation and, thus, they cannot object now. It was explained to the Court that even if all the hotels and lodging houses in Patna were to be booked by the State Government the accommodation is no enough. Learned Additional Advocate General was at a loss to explain why the schools and colleges have been closed and public examinations held by the University postponed to give way to this convention.
11. In rejoinder on behalf of the petitioners It was contended that what has been done by the State Government is a crude and an arbitrary act which has affected public life by closure of educational Institutions between 29 Sept. and 3 Oct., 2001 without authority of the law. The taking over of the campus of the educational institutions is virtually in a nature of a requisition again without authority of the law. This fact has affected the institutions in being deprived of their property temporarily for five days and simultaneously affected the children in being deprived of attending schools on 29 Sept., 1 Oct., 3. Oct., 2001. On their acquiescence attributed by the Additional Advocate General, it was submitted that it was the good grace of the Additional Advocate General that directions in the indicated circulars addressed to the institutions were being explained away as a request and that whatever the circulars are worth, the State respondent may wish them away now, but record is record. The closure of the institutions was a class action against the institutions . The suggestion of implied acquisence, by presumption, thus was strongly denied. Lastly, it was submitted on behalf of the petitioners that surrounding Jails near Patna are also being decongested and prisoners are being transferred to Patna Beur Jail so as to accommodate the delegates at the convention.
12. The facts were not disputed. The taking over of the accommodation of the institutions referred to in the departmental publication of the Patna Collectorate, Patna under the authority of the District Magistrate, Patna, enlists the institutions, approximately 242 in number. The closure of the Institutions is acknowledged. Occupation of the Institutions between the period 29 Sept. and 3 Oct.. 2001 is not denied. It is accepted that all the colleges of Patna and Magadh Universities in the State Capital, Patna (except Patna Women's College) shall remain closed for five days from Sept. 29 to Oct. 3, 2001. It is acknowledged that the Patna University has issued a notification for postponement of the examinations during this period. It is acknowledged that the Pro-Vice Chancellor of the Patna University has made a statement that B.A. Part II. Honours. Engineering and Law examinations will be affected. The accommodation of the Patna University will be occupied by the elected local bodies' representatives arriving at Patna at the convention. The constituent colleges under the Magadh University will also have their accommodation, taken over during this period. In some colleges the last date for filling up examination forms is Oct. 3, 2001 and unexpected closure of the University will create complications for many students. These facts were placed by the petitioners as having been given in the media also. The facts were not controverted by learned Additional Advocate General.
13. As the time is short, learned Additional Advocate General stated that he would not be replying to the petition by a formal counter-affidavit, but instead would place before the Court the record on which he relies. Accordingly he placed the dossier which has been compiled by the State Government as Patna Samaharnalay Patna, Kshetriya Panchayaton Ke nirwachit Sadasyon Ka 2 Oct. Ko Patna Gandhi Maidan mein honewala sammelan ki taiyarl. This contains the details of the number of institutions which have been addressed and the facilities which they are required to provide or the facilities which will be arranged for In the campus of the institutions. These facilities are the accommodation (Awas ki Kshamta), vehicles and their parking (Wahno ke Thahro ka stan), tubewells (Nalkup), lavatories (Shauchalay) electricity points (Bijll), Fans (Pankha) and other facilities like tap connections, booster pumps, etc.
14. This dossier made by the Patna Collectorate, Patna, by the District Magistrate, Patna contains the table and statistics of the number of institutions whose facilities have been requisitioned and the details of the work which is to be done on the grounds and premises, which the Court has already referred to. The dossier has been prepared on 23 Sept., 2001. It refers to a meeting of the Collectors on 22 September, 2001. In the circumstances, the fact that the petitioners filed this petition on 24 Sept., 2001, indicates that there was no delay in coming to the Court.
15. As it was time for the Court to rise, at the end of the day the Additional Advocate General, Mr. S.K. Ghosh made a request to the Court. The request was that in the next one hour or so he would further consult the State Government and the district administration to find out whether the educational Institutions could be exempted and taken put of the arrangements for accommodating the incoming delegates to the convention for the period of occupation hitherto indicated. The Court granted the liberty with the reservation that, should be the Additional Advocate General meet the Court in chambers, then counsel for the petitioners must accompany him, so that whatever is stated before the Court is very much part of the Court proceedings, in the presence of all the parties. Counsel for all the parties accepted this suggestion of the Court.
16. The facts of the case and the rest as recorded above were dictated in presence of counsel for the parties in the Court as it was the time for the Court to rise at 4.15 p.m. The balance was reserved for orders tomorrow.
Chambers :
17. One hour after when the Court retired to Chambers, the learned Additional Advocate General appeared before the Court along with counsel for the petitioners. He stated that he has instructions to state after discussing the matters with the district administration, that the latter would be able to spare the accommodation of the privately managed or non State educational institutions and release the premises of such Institutions from the reservation made for the purpose of the scheduled convention called by State Government. Thus, the Court has recorded this statement of the learned Additional Advocate General, Reserved Orders :
18. One thing is clear that when the State Government went about reserving accommodations of the educational institutions for the purpose of lodging approximately 2,00,000 newly elected representatives to the Panchayats and Zila Parishad and others along with them, the act of reserving the accommodation was hardly 'made with a request' as was attempted to be explained to the Court. Instead it was a plain leaving-no-choice-requisition. The Court has no hesitation in declaring this. Even a requisition, when such a power has been resorted to, is on some basis. Accommodations have been known to be requisitioned for temporary use after the second world war, under the Defence of India Rules or for the matter utilised during the period of elections to the State Assemblies or the Parliament. But, In every such case, the law provides for taking over of such accommodations for a very limited period and the action has the sanctity of the authority of the law and law in this context means an Act of Parliament or a State Legislature, a rule , or a statutory order having force of law, that is a positive or State made law. The power to deprive a person of his property can be exercised only by authority of the law otherwise the action of the State would be violation of the right to property under Chapter IV, Article 300-A of the Constitution of India. AIR 1982 SC 33.
19. On behalf of the State Government it was acknowledged by the Additional Advocate General that the order to requisition the property has not been made under any authority of law. The resultant action then leaves a situation of an arbitrary action violating the Constitution, Article 300-A specifically. The petitioners are not incorrect in submitting that walking Into the property of the educational institutions, particularly, those owned by managements which are not of the State would be tantamount to criminal tress-pass or lurking house tress-pass under the Indian Penal Code, 1860.
20. Once it is acknowledged that the action cannot be supported under the law the rest follows that the closure of the schools to accommodate delegates to a convention or a rally deprived the children or the students of attending classes and affected their education. In fact this affected two classes of persons (a) those who run the institutions to teach and (b) those who are to be taught, that is, the students. The freedom of speech and expression, can be Interpreted both ways. It is an articulation by the teacher and its imbibing by the students. Closing a school without cause affects this freedom. Thus Article 19(l)(a) stands violated. Denying the freedom to go to school to teach and the freedom to attend the school to be taught violates Article 19(l)(d) of the Constitution of India. To impart education implies being able to deliver it, a liberty which the Constitution gurantees. It is also a liberty which the Constitution confers to get education. This is personal liberty as long as the executions are adhered to. Inasmuch as it is personal liberty which Inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights sought to be protected by the expression "personal liberty" in Article 21 (1950) 2 Mad LJ 42 : (AIR 1950 SC 27).
21. If denying a person the liberty to travel abroad is understood to Infringe Article 21, would not preventing a teacher from teaching at school or a scholar' from being able to go to school be any different? This would also be infringement of Article 21 of the Constitution. After all, the State must act within the limits of the law in any procedure affecting the life or liberty of a person, AIR 1967 SC 1836. In the present case it is acknowledged that the action to requisition school accommodation and order to close educational institutions as a consequence was not under any law and did not have the sanction of law.
22. Then there is a question of feedom of conscience referred to in Article 25 of the Constitution of India, This Article is not so alone so to guarantee only the right freely to profess practice and propogate religion. There is more to it. This Article mentions that all persons are equally entitled to freedom of conscience. The State action restricting the activities of a functional school depriving the teacher and the taught., both, one from imparting education and the other from receiving it disturbs the conscience, it is more disturbing that a political convention has become so big in size so as to pitch profuse numbers against the teachers and the students so that they have to abandon school premises and give way to the political convention attending delegates. On the same analogy that when the lined up children could not be forced to sing the national anthem, likewise, the teacher and the taught cannot be expelled from their institutions, though temporarily, and being forced to yield their accommodation and facilities to a political convention or facilities it (AIR 1987 SC 748). This enforcement to occupy the school or an educational institution is the ante-thesis to the freedom of conscience granted under Article 25 of the 'Constitution of India.
23. The Court cannot certify that what the State Government has done is correct. What has been done is not only arbitrary but crude and an action which has no regard for the sensibility and the feelings of a citizen in a State. Let no one in power take so much credit in advertising a newly formed local self Government which has yet to sink into the fabric of the body politik that be the Slate. Local self Government will not take its orientation and sink in instantly by such Panchayat conventions being rushed into and huddled at the State capital in Patna. Baiting the Panchayats and calling their representatives to a glorified state party at the expense of public money is a wrong beginning. The Panchayat as an institution is not sub-ordinate' to the State Government. It has its place in the Constitution along with the Municipalities; a distinct identity. Would the corollory hold if a Panchayat were to summon the State cabinet, provided it had the resources? Any orientation to the Panchayats will need to be given within the districts where they operate. Calling the Panchayats to the State capital is a bad way of doing things. It still shows that the realisation of decentralistion of power has not happened and given the occasion the State beckons the Panchayats to its fold. This must never happen. Once the Panchayat has sanctity as as an institution of self Government, it should appropriately be left for the rural areas. Other wise, the very purpose of the Constitution saying that the Panchayat means an institution, by whatever name called, of self Government and for rural areas has no meaning. If the State Government is so serious that the Panchayat must find its roots to function as the Constitution of India has ordained it then, if the State be the Mountain and the Panchayat, Mohammad, then the Mountain will have to go to Mohammad.
24. The Panchayats have yet to be rejuvinated, oriented into the nuances of self Government. Let a State Government not tell it how to go about their ways. The does and the don't can be explained to the Panchayat on their home ground by every Collector in whose district they are meant to function. Here the function of the Collector will not be of an authority or a monitor but that oi mentor and guide.
25. The Court has no hesitation in declaring that the act of requisitioning the accommodations of the educational Institutions whether privately managed or State managed is a shabby and arbitrary action. Even State Educational institutions cannot be subjected to arbitrary closure. What is not relevant is that they are the institutions of the State but what is relevant is that they are institutions imparting education.
26. Political credit must not be taken by display of massive conventions when there is so such blame to be accepted on those who run the administration of the State, for super-ceding local self Government. Rallies and conventions will not bring back democracy. This is sending a wrong message to the students that schools can be closed for a convention. It is a very wrong message. All the teachers of the schools have been required to stand in attendance to play host to arrangements for the delegates. This will impair and be little the authority of the principal and the teacher. Tomorrow, the students may force and the teacher may hole a similar style rally and pitch their collective might against the State Government and it would be on the same hypothesis that they did so and they did not need anybody's permission to hold it. The State Government, then, would be playing the education card to prevent it. Would its writ rule ? Moboc-racy is only licence, which the republic in a democracy docs not suffer. For those who make it suffer are not friends of democracy or the rule of law. Requisitioning accommodation for facilitating this convention, without the authority of the law is undemonstratic. Tempting the elected representatives of the Panchayats with a convention and a party is a wrong signal and incorrect beginning. It would have been more appropriate if all those energies for this colosal convention and all the recourses which are going into holding of It, could have been conserved as an investment to arrange for the needs of rural Bihar as their entitlement by right and an obligation of the Panchayat to plan and provide for it. The political right of rural Bihar to receive planned development in certain spheres is itemised and listed in the Constitution of India. It is Article 243G referring to the XI Schedule which enlists:
1. Agriculture, including agricultural extension, 2. Land improvement, implementation of land reforms land consolidation and soil conservation, 3. Minor irrigation, water management and watershed development, 4. Animal husbandary, dairying and poultry, 5. Fishes, 6. Social forestry and farm forestry, 7. Minor forest produce, 8. Small scale Industries, including food processing industries. 9, Khadi, village and cottage industries, 10. Rural housing, 11. Drinking water 12. Fuel and Fodder, 13. Roads, culverts, bridges ferries, waterways and other means of communication, 14. Rural electrification, including distribution of electricity, 15. Non-conventional energy sources, 16. Poverty alleviation programme, 17. Education, including primary and secondary schools, 18. Technical training and vocational education, 19. Adult and non-formal education, 20. Libraries. 21. Cultural activities . 22. Markets and fairs. 23. Health and sanitation, including hospitals, primary health centres and dispensaries, 24. Family welfare, 25. Women and child development. 26. Social welfare, including welfare of the handicaped and mentally retarded, 27. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes, 28. Public distribution system, 29. Maintenance of community assets.
27. All the monies which have been spent and will be spent could have been diverted and allocated as a dedicated budget for the Panchayats of rural Bihar. The Panchayats should have been addressed within their local areas on whatever they had to be told about their does and dont's.
28. This action clearly reveals that the power of the licence and requisition 'Raj' have not been shed. Coupled with this, oppressive act of holding a convention by requisitioning other people's property, resources and materials, was displayed another power that went hand-in-hand with it and could be described as 'Contractors Raj'. In this action contractors have been licenced to make lavatories, urinals, temporary tube wells, hand pumps, light and fan arrangements, catering for dormitories and mess-Ing arrangements and much more. If all the resources that went into this had been sent directly to the Panchayats, instead of diverting them at Patna for this misplaced convention, and for the middlemen and contractors who will benefit from it, Democracy would have been better, served.
29. Regard being had to the overall circumstances from the record it is clear that what the Stale Government did was a clear case of requisitioning the accommodation of the educational institutions. Education concerns the public. Education cannot come to a halt for political rallies and political conventions. That rallies and conventional may go on is an entirely another matter. Taking over schools to facilities political rallies is an arbitrary act. It offends the rule of law and tantamounts to requsitioning the property and the premises of the educational institutions. The explanation that the management of the schools had acquiesced to the situation and had not objected to it is a very feeble explanation on behalf of the respondents. It is strange that the State Government is relying on a presumption of acquiescence on the part of the management of the schools. It has been suggested that the Court should presume the existence o] such circumstances. The Court is afraid that this presumption cannot be drawn so easily as it has been suggested . Presumption rests on a foundation. The Court may presume only if there be the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particulars case. In the present state of affairs and regard being had to be nature of circumstances it is unlikely that the management of the schools would have so readily parted with their grounds accommodations and premises so easily for being invaded by delegates to a political convention. Acquiescence as a defence was a submission made, in the facts and circumstances of the present case, in bad taste.
30. But what the Court can presume is the effect that this occupation will inevitably have on the educational institutions. At modest estimate it may be presumed that each school or college will at least have 500 students. If this were so, then of 242 schools and colleges ordered to be closed, 1,21,000 students will have their orderly process of education disrupted. Numbers in schools today are larger than the modest estimate taken by the Court. It is to be assumed that the State Government was also looking for larger premises. The actual number could be many times this conservations estimate. The aftermath of such a heavy, concentrated use of such premises as a camp site will inevitably be degradation and damage to grounds, property and environment.
37. The Court has no hesitation, taking into account all the factors, in describing the impending walk by the stale respondents into the property, the accommodations, the grounds and the premises of educational institutions as an arbitrary and illegal act. It has already been acknowledged on behalf of the State respondents that the directions which have been issued are not under any law.
32. The requisition of an immovable property, which in the present case is an exercise actually set in motion by addressing notices and circulars to 242 institutions, now is acknowledged by the respondents, has not been initiated under any law. No cognate provision was shown to the Court, the like of which exists in the Requisitioning and Acquisition of Immovable Property Act of 1952. Under this enactment, the requisitioning of Immovable property can only be for the purposes of the Union. The power to requisition immovable property rests on the premise that the competent authority records his opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the Union. Even then the owner is called upon by a notice in writing to show cause why the property cannot be requisitioned and only when the competent authority is satisfied that it is necessary or expedient so to do is a formal order in writing passed and delivered to the owner. And even after an order of requisition is made by the competent authority, any person aggrieved by such an order, is entitled to appeal against it. Even under this Act, there is an exception in explicit terms which says that no property which is exclusively used either for religious worship by the public or as a school, hospital, public library or orphanage, or for the purpose of accommodation of persons connected with the management of such places shall be requisitioned. Even if this requisition were being made by the Union Government, schools and colleges would be exempted, and the owners of any other property given adequate time to respond.
33. These directions, thus, cannot hold. Consequently the orders in the circulars issued by the State respondents dated 11 Sept. 2001. 18 Sept. 2001 and 19 Sept. 2001, and such similar ad like orders are quashed.
34. The writ petition succeeds.
Shashank Kumar Singh, J.
35. I agree.