# Nanhey Singh & Ors v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-02
- **Case number:** Civil Misc. (PIL) Writ Petition No. 43710 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhey-singh-ors-v-state-of-u-p-ors-43234
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.-226-Public
Interest
Litigation-challenging
the
validity of impugned sanction-granted by
government for consideration of shops for
commercial purposes-land where primary
school running since 1907 under control of
Basic Education Department-under Section
9-A (b)-such school stood transferred
vested either with Gram Panchayat or with
Municipality-even
in
accordance
with
section 13-A of municipalities Act 1916such school, the board deemed to vested
with such local bodies-such land owned by
Basic Education can not be converted for
commercial
purpose-Right
to
primary
education
being
fundamental
rightenacted by Parliament Right to education
children to free and compulsory education
Act 2009-can not be underscored granting
permission by the authority with collusion
of upar Mukhya Adhikari of Zila Panchayat
the G.O. Relied-ex facie no applicationimpugned
order
quashed-District
Magistrate to ensure restoration of its
original position-petition disposed of.
Held: Para-16, 17, 18

## Text

76
 INDIAN LAW REPORTS ALLAHABAD SERIES
although they have not completed 55
years of age does not lead to any
conclusion that the impugned enactment
is
arbitrary,
irrational,
unfair
and
unconstitutional. The fact that the provision
such as the impugned provision that allows
the retirement from public employment at
the age of 35 years' service is not to be
found in other States is of no relevance. As
a
matter
of
fact,
retirement
policy
concerning public employment differs from
State to State. Kerala retires employees
from the public employment at the age of 55
years. In any case there is nothing wrong if
the legislation provides for retirement of the
government employees based on maximum
length of service or on attaining a
particular age, wherever is earlier, if the
prescribed length of service or age is not
irrational."
41. Thus, the petitioners cannot set
up plea of discrimination qua the gazetted
officers of the police force.
42.
So far as other non-gazetted
officers of the police force are concerned,
i.e. Inspectors and Sub Inspectors, similar
restrictions on their posting in bordering
districts is in place, vide paragraph 1 of the
Government Order dated 11.7.1986. In case
of constables and head constables, such
restriction was relaxed by Government
Order dated 20.3.2012, but it was never
relaxed in case of Inspectors and Sub
Inspectors. They were never permitted to be
posted in districts bordering their home
district. Thus, plea of discrimination and
violation of Article 14 is also not tenable.
Individual Hardship:-
43. As regards individual hardship
to the petitioners and members of their
families, it is now well settled that remedy
for the same is to represent to the
authorities. However, that cannot be a
ground for the writ-court to interfere.
Accordingly, in cases of hardship to the
incumbent or members of his family, it
shall
be
open
to
him
to
make
representation to the Regional Police
Establishment
Board,
on
whose
recommendations,
transfer
has
been
made.
In
the
event,
any
such
representation is made, the Board shall
examine the same with all sympathy, as it
is also its duty to mitigate the hardship of
the members of the police force, which is
necessary to strike a balance between
public duty and personal interest. Such
exercise shall be carried out within one
month from the date representation is
made. In case of demonstrated undue
hardship, it shall be open to the Board to
amend/modify the transfer order or pass
such order which, it deems appropriate.
44. Subject to above liberty, writ
petitions stand dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2014
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Civil Misc. (PIL) Writ Petition No. 43710 of
2014
Nanhey Singh & Ors.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Sunil Kumar
Counsel
for
the
Respondents:
1 All]. Nanhey Singh & Ors. Vs. State of U.P. & Ors.
77
C.S.C., Sri Nisheeth Yadav, Sri Yatindra,
Sri Amit Shukla
Constitution
of
India,
Art.-226-Public
Interest
Litigation-challenging
the
validity of impugned sanction-granted by
government for consideration of shops for
commercial purposes-land where primary
school running since 1907 under control of
Basic Education Department-under Section
9-A (b)-such school stood transferred
vested either with Gram Panchayat or with
Municipality-even
in
accordance
with
section 13-A of municipalities Act 1916such school, the board deemed to vested
with such local bodies-such land owned by
Basic Education can not be converted for
commercial
purpose-Right
to
primary
education
being
fundamental
rightenacted by Parliament Right to education
children to free and compulsory education
Act 2009-can not be underscored granting
permission by the authority with collusion
of upar Mukhya Adhikari of Zila Panchayat
the G.O. Relied-ex facie no applicationimpugned
order
quashed-District
Magistrate to ensure restoration of its
original position-petition disposed of.
Held: Para-16, 17, 18
16. 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.
17. 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.
18. 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.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. 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
78
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
2. 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.
3. 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.
4. 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,
1 All]. Nanhey Singh & Ors. Vs. State of U.P. & Ors.
79
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."
5. 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.
6. 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."
7. 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.
80
 INDIAN LAW REPORTS ALLAHABAD SERIES
8. 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.
9. 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.
10. 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.
11. 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.
12. 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--
1 All]. Nanhey Singh & Ors. Vs. State of U.P. & Ors.
81
(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."
13. 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.
14. 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.
15. 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
82
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
16. 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.
17. 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.
18. 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.
19. The petition is, accordingly,
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2014
BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Civil Misc. Writ Petition No. 45851 of 2014
Sri Girraj Sewak Samiti, Bara through
Mantri & Anr.
...Petitioners
Versus
Sri Girraj Sewak Samiti, Bara through
Secretary & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vashistha Tiwari, Sri Shashi Nandan,
Sri Shivam Yadav
Counsel for the Respondents:
Sri H.N. Pandey, Sri Ashok Kumar
Dwivedi, Sri M.D. Singh 'Shekhar', Sri
Ashok Kumar Dwivedi, Sri P.N. Saxena,
Sri H.N. Pandey
C.P.C. Order XXII Rule-10-Application
being summery in nature-exercise of
recording oral evidence and critical
analysis of documentary evidence-not