Gauhati High Court
Brijesh Kumar Rai And Anr vs The Union Of India And 3 Ors on 26 February, 2020
Bench: Achintya Malla Bujor Barua, Nelson Sailo
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GAHC010089962019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : PIL 26/2019
1:BRIJESH KUMAR RAI AND ANR
S/O. SRI JAGANNATH PRASAD RAI, R/O. C-66, FACULTY QUARTERS,
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI, P.O. AND P.S.
JALUKBARI, GUWAHATI, DIST. KAMRUP, ASSAM. PIN- 781039.
2: VIKRANT SINGH
S/O. SRI ANIL KUMAR SINGH
R/O. S-240
BRAHMAPUTRA HOSTEL
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
P.O. AND P.S. JALUKBARI
GUWAHATI
DIST.- KAMRUP
ASSAM. PIN- 781039
VERSUS
1:THE UNION OF INDIA AND 3 ORS.
REP. BY THE SECY. TO THE DEPTT. OF HIGHER EDUCATION, MINISTRY OF
HUMAN RESOURCE DEVELOPMENT, 127-C, SHASTRI BHAWAN, DR.
RAJENDRA PRASAD RD, RAJPATH AREA, CENTRAL SECRETARIAT, NEW
DELHI- 110001.
2:THE DIRECTOR
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
GUWAHATI
ASSAM. PIN- 781039.
3:THE BOARD OF GOVERNORS
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
THROUGH ITS CHAIRMAN
GUWAHATI
P.O. AND P.S.- JALUKBARI
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DIST.- KAMRUP(R)
ASSAM. PIN- 781039.
4:RAJIV I. MODI
EX-CHAIRMAN
INDIAN INSTITUTE OF TECHNOLOGY GUWAHATI
CADILA CORPORATION CAMPUS
SARKHEJ- DHOLKA ROAD
BHAT
AHMEDABAD
GUJARAT- 382210
Advocate for the Petitioner : MS. D GHOSH
Advocate for the Respondent : MR. S C KEYAL, (R-1) ASSTT. S.G.I.
BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA HONOURABLE MR. JUSTICE NELSON SAILO DATE:26.02.2020 JUDGMENT AND ORDER(CAV) Heard Ms. D Ghosh, learned counsel for the petitioners and Mr. RP Kakoti, learned Senior Counsel for the respondent, IITG as well as Mr. SC Keyal, learned ASGI for the respondent Union of India.
2. The petitioner No.1 Dr. Brijesh Kumar Rai is an Assistant Professor in the Department of Electronics and Electrical Engineering in the Indian Institute of Technology, Guwahati (IITG) and the petitioner No.2 Vikrant Singh is a Research Scholar pursuing his Ph.D in the Department of Electronics and Engineering in IITG. Both the petitioners preferred this PIL on being aggrieved by the illegal construction of a temple inside the IITG campus, which was done without any due authority and thereby depriving the resident and non-resident staffs Page No.# 3/8 and students of IITG from their fundamental right to live, work and study in a secular environment. It is stated that although the respondent authorities in IITG had denied having undertaken any responsibility for the construction of the temple, but at the same time, they are providing electricity to the temple at the cost of public money.
3. The petitioners submitted representation dated 12.02.2009 before the authorities of the IITG as well as the authorities of the Government of India in the Ministry of Human Resource Development and the Central Vigilance Commissioner that no permission was granted by the IITG for construction of the temple and that some officials of the IITG are behind the illegal construction but inspite of the petitioners having brought it to the notice of the authorities of the IITG, no credible action had been taken to stop such illegal construction. The representation also appears to be a notice of 15 days that on the failure to take action within 15 days, the petitioners would be constrained to initiate legal action against the authorities of the IITG. Photographs have been annexed to the PIL showing that initially the temple comprised a small hut-like structure built around the year 2004/2005, i.e. much after the IITG had started its functioning from its present campus. But, thereafter about four years back, the temple had been refurbished. In the circumstance, the PIL seeks for a direction to the respondent authorities to demolish the illegally constructed temple and also for initiating disciplinary action against such officials of the IITG who were involved in such illegal construction of the temple inside the campus of IITG.
4. The respondent IITG through the Registrar of the Institute filed an affidavit-in- opposition. In their affidavit-in-opposition, the credential of the petitioners for having a locus standi in maintaining the present petition had been questioned. A specific stand has been taken that there are representative bodies of the students as well as the faculties and employees of the IITG, namely, the students' faculties, the faculty forum and officer's forum respectively. Apart from the aforesaid bodies, IITG has Grievance Redressal Cell as well to take care of any grievance of the public as well as that of the staffs. By saying so a stand is taken that none of the aforesaid bodies, who are representative bodes in the IITG have raised any objection as regards the existence, continuing, construction of the temple concerned. A further stand is taken that the IITG campus has about ten thousand residents Page No.# 4/8 who are highly educated and most of them visit the temple concerned and none has ever objected to its existence. By saying so, a stand is taken that the petitioners being two in number had not consulted or taken the consent of the residents of the IITG before filing of the PIL petition. More importantly, a specific stand has been taken that the land for establishing the IITG was acquired during the year 1991 and 1992 and the institute was established in the year 1994. Prior to the land being acquired, it belonged to the local people and some plains tribal people who were the residents of the required land. In paragraph- C, the following stand had been taken:
"C. THE SHIVA TEMPLE IN QUESTION WAS EXISTING PRIOR TO THE ESTABLISHMENT OF THE IIT-GUWAHATI IN THE SAME PLACE:
(I) The land for establishment of IIT Guwahati was acquired during the year 1991/1992 and this Institute was established in the year 1994. This acquired land prior to acquisition belonged to the local people and some plaint tribunal people.
(II) At the time of taking over the land, the then IIT Guwahati authority found the existence of a small temple below a big peepal tree on the acquired land. The local people living around that place informed the IIT authority that the worships in the temple had been going from days immemorial and though they used to visit the temple regularly for offering puja etc. they themselves do not know when and how the Shiva temple under the tree came into existence there.
(III) The IIT Guwahati authority fond that a very small portion of land comprising an area of 440 Sq. ft. was occupied by the temple and the said portion of land was not needed for the development purpose of the Institute and the same temple is not causing any obstruction to the development projects of the IIT Guwahati. Further, the existence of the temple has not been causing any obstruction to the roads/ paths Page No.# 5/8 developed within the campus. Therefore, the question of demolition of the temple has not arisen so far.
(IV) The local people from whom the land was acquired also requested the authority to allow them to visit and worship in the temple as they have been doing it for generations.
(V) For the aforesaid reasons the IIT Guwahati authority did not want to hurt the feelings and the devotions of these local people and therefore no direct interference on the existence of the temple was felt and thus, to continue, as it is not causing any hindrance to the progress of the Institute. A large number of people including students living within the IIT complex are also visiting this temple daily for offering pujas and therefore, there exists no reason as to why this temple should be demolished."
5. From the stand taken in paragraph-C of the affidavit-in-opposition of the respondent IITG, it is discernible that the temple in question pre-existed in the land acquired for the purpose of IIT which comprised of a very small portion of about 440 Sq feet and at the time of the acquisition itself while addressing to the objection of the local people in acquiring the land having the temple, an amicable settlement was arrived at that the IITG would allow the existence of the temple even though the land may be acquired and also allow the people, including the local people to continue their worship in the temple.
6. The said stand of the respondent IITG in paragraph-C of their affidavit-in-opposition is countered by merely stating that it is misleading and if there existed any such decision to allow the people to visit and worship in the temple, such decision would have been part of the minutes of the meeting of the Board of Governors of the respondent IITG and as no such minutes have been produced therefore, it would be disbelievable. The said stand of the petitioners amount to a non-admission by them of the stand taken by the respondent IITG but it cannot be termed to be a denial that no such temple pre-existed prior to the acquisition Page No.# 6/8 of the land in favour of the respondent IITG.
7. The petitioners also relied upon a pronouncement of the Supreme Court vide judgment dated 07.12.2009 and 16.02.2020 in Leave to Appeal © No(s) 8519/2006 the case of Union of India & anr. -vs- State of Gujarat & Ors wherein it had been provided as follows:-
"*********As an interim measure, we direct that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places etc. **********In pursuance of the order of this Court dated 29 th September, 2009, by which this Court directed that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church Mosque or Gurudwara etc. on public streets, public parks or other public places;"
8. By relying upon the definition of public place as provided in the Explanation to Section 133 of the Code of Criminal Procedure, and also in the pronouncement of the Supreme Court in the case of Satvinder Singh -vs- State of Bihar, reported in (2019) 7 SCC 89, while considering the definition of public places in Bihar Excise (Amendment) Act, 2016 (3 of 2016), as well as the definition of public place in Black Laws Dictionary, petitioners raise a contention that the campus within the campus of IITG would also be a public place. Accordingly, it is contended that it being a public place, as per the pronouncement of the Supreme Court in Special Leave to Appeal ( C) No(s) 8519/2006, no illegal construction of any temple etc. can be permitted within the public place.
9. In the case at hand before the Supreme Court, the issue concerned was regarding repeated orders passed by the Court in respect of removal of illegal religious structure which came up by way of encroachment of public land. The very purport of the order of the Supreme Court was as regards the illegal religious structures that came up by way of Page No.# 7/8 encroachment of public land.
10. In the instant case, as per the respondents IITG, the temple in question, firstly existed since prior to the land being acquired for IIT and secondly, the authorities of the IITG had not only agreed to the existence of the temple but it also allowed the people of the locality to worship therein. Both the aforesaid factual situation leads to the conclusion that firstly, the temple structure cannot be called to be an illegal religious structure nor it can be called to be an encroachment of the public land inasmuch as the land in question became a public land only upon it being acquired and handed over to the IITG authorities and the temple existed even prior to the land becoming a public land. Further, the Supreme Court had provided that hence forth no unauthorized construction shall be carried out or permitted in the name of Temple, Church Mosque or Gurudwara etc. on public streets, public parks or other public places. The very purpose of the order was to prevent unauthorized construction being carried out in the name of temple in public place. In the instant case, it is even the position of the petitioners in paragraph 7 and 8 of the petition that the hut-like structure containing the temple was first built in the year 2004/05 much after IITG had started functioning and was refurbished about four years back i.e. understood to be some time around in 2015, but as the temple is admitted by the respondent authorities to be in existence prior to the land being acquired for the IITG, the claim of the petitioners that it was built subsequent to the establishment of the IITG appears to be incorrect. The pronouncement of the Supreme Court prohibiting construction in the name of a temple in a public place would not be inapplicable in a situation, where an existing temple had been refurbished and that too with the knowledge and without any objection from the authorities who have control over the public place. Accordingly, no case is made out by the petitioners for passing any direction to demolish the temple concerned.
11. The PIL stands accordingly dismissed.
JUDGE JUDGE
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Comparing Assistant