Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 296 (GAU)

Jania Anchalik Sr. Madrassa v. State Of Assam

2020-02-27

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. B. Sinha, the learned counsel for the petitioners and Mr. K. Bhuiya learned counsel for the respondent Nos. 4 to 8. I have also heard Mr. C. Bhattacharya, learned counsel for the respondent Nos. 1 & 2 and Ms. B. Bora, learned Government Advocate appearing for respondent No. 3. 2. The grievance projected by the petitioners is that Jania Anchalik Sr. Madrassa, Jania, Barpeta which was established on 03.01.2000 have been illegally sought to be shifted from Jania to Salekura Barpeta and at the behest of the respondents concerned. As such, it is their prayer that the Jania Anchalik Sr. Madrassa, Jania, Barpeta should not be shifted out from its original location. 3. Brief facts of the case as projected by the petitioners is that the Madrassa was established on 03.01.2000 to impart Madrassa Education as per the course and curriculum of the said Madrassa Education Board. The Managing Committee of the Madrassa so constituted from time to time has been managing the affairs of the Madrassa. The Madrassa was established by the people of the locality as a Venture Educational Institution and continues as such in the district of Barpeta, Assam. The Madrassa is set up over a plot of land measuring 8 Bigha covered by Dag No. 643 and land measuring 5 Bigha 2 Katha and 10 Lecha covered by Dag No. 632 of Jania Go-Reserve Gaon of Jania Mauza allotted by Barpeta Sub-Divisional Land Advisory Committee, as per the proceedings dated 23.02.2005 and 29.02.2008. The Madrassa, accordingly, has 2 (two) Assam Type house measuring 18 ft by 165 ft with 10 rooms including a RCC building under construction. The Madrassa was granted permission and recognition by the Madrassa Education Board, Assam vide Order dated 13.03.2008 (Annexure-2). 4. It is the case of the petitioners that the respondent No. 4 was the Superintendant-in- Charge of the Madrassa and the respondent No. 5, 6 & 7 were Asstt. teachers at the relevant point of time. They were placed under suspension by the Managing Committee of the Madrassa and thereafter, following a departmental proceedings, they were removed from service from the Madrassa. The respondent No. 4 filed WP(C) No. 2923/2011 before this Court challenging his removal from service but however, the writ petition was dismissed for non-prosecution vide Order dated 06.06.2012. As for the respondent Nos. 5, 6 & 7, they did not challenge their removal. The respondent No. 4 filed WP(C) No. 2923/2011 before this Court challenging his removal from service but however, the writ petition was dismissed for non-prosecution vide Order dated 06.06.2012. As for the respondent Nos. 5, 6 & 7, they did not challenge their removal. 5. The respondent No. 2 i.e. the Director of Madrassa Education, Assam on 28.02.2012 issued a notification notifying that the prevailing procedure of general administration of Venture Madrassa Educational Institutions are not under the control of the Government and they are purely private Institutions. That the administration of such Madrassa Institutions are not vested in the Government and they are totally vested upon the Managing Committee/Governing Body of the concerned Madrassa Institutions, including appointment, selection, etc., of Madrassa employees and that no approval from the Directorate is required. Therefore, there is no occasion for the respondent Nos. 4 to 7 to approach the respondent authorities for interference in their removal from service. Despite this, the respondent Nos. 4 to 8 alongwith their associates by impersonating an Executive Meeting of the Madrassa on 13.01.2013 adopting a resolution for shifting the Madrassa. According to the petitioners, the respondent Nos. 4 to 7 influenced the then Director of Madrassa Education, who was also holding the post of Deputy Secretary to the Govt. of Assam, on their illegal schemes and he therefore entertained the appeals of the said respondents by fixing various dates for conducting hearing. In such process, the representation dated 06.05.2013 from the respondent No. 5 with a prayer for shifting the Madrassa from its location at Jania Barpeta to Salekura Barpeta on a plot of land measuring 1 Bigha on the basis of the Managing Committees resolution No. 2 taken on 13.01.2013 was entertained. The said Deputy Secretary sitting at the Government level on receipt of a representation issued a Communication dated 18.05.2013 to the Director of Madrassa Education, asking for a formal proposal alongwith his views and justification for shifting the Madrassa. Accordingly, the Director vide his Communication dated 22.05.2013 wrote back by enclosing the resolution No. 2 of the Managing Committee of the Madrassa dated 13.01.2013 and stated that Government may approve the proposal for shifting of the Madrassa. Accordingly, vide Communication dated 30.05.2013 (Annexure 7 (c)), approval for shifting of the Madrassa was communicated to the Director of Madrassa Education by the Deputy Secretary to the Government of Assam, Secondary Education. Accordingly, vide Communication dated 30.05.2013 (Annexure 7 (c)), approval for shifting of the Madrassa was communicated to the Director of Madrassa Education by the Deputy Secretary to the Government of Assam, Secondary Education. This communication is being challenged by the writ petitioners in this proceeding. 6. Mr. B. Sinha, learned counsel for the petitioners submits that it is evident that the respondent Nos. 4 to 7 were removed from the Madrassa from the challenge made by the respondent No. 4 by filing WP(C) 2923/2011. However, the writ petition was dismissed for default vide Order dated 06.06.2012. The respondent No. 4 did not get the writ petition restored and therefore, his removal from the Madrassa remains. He submits that the then Director of Madrassa, in view of the Notification dated 28.02.2012 under his own signature, had no authority to entertain the appeal of the respondent Nos. 4 to 7 against their removal from service. That the then Director of Madrassa Education, who was also holding the post of Deputy Secretary to the Govt. of Assam, Secondary Education in collusion with the private respondents managed the Governments approval for shifting of the Madrassa. He submits that the Madrassa was getting mid-day meal regularly and also financial assistance from the year 2010-2011 and 2011-2012. However, with the intervention of the then Director of Madrassa Education, such facilities were disturbed and also the respondent Nos. 4 to 7 by persistently approaching the authorities for mid-day meal and financial assistance with the plea that the Madrassa was being shifted from the original location to Salekura Barpeta were disturbing the functioning of the Madrassa. The respondent Nos. 4 to 7 then filed WP(C) No. 7232/2013 before this Court and vide Order dated 11.12.2013, a direction was issued to the Deputy Commissioner, Barpeta to cause an enquiry so as to find out the genuine Madrassa. Subsequently, an enquiry was held and the Sub-Divisional Officer, Barpeta submitted a report dated 29.06.2015 to the Deputy Commissioner, Barpeta, reporting the genuineness of the Madrassa at Jania. The Deputy Commissioner, thereafter vide his Letter dated 05.08.2015, directed the Deputy Director, Food & Civil Supplies to supply mid-day meal to the Madrassa as per the scheme and also directed the Government Bikash Bank, Jania for Bank transaction in favour of the Madrassa. The Deputy Commissioner, thereafter vide his Letter dated 05.08.2015, directed the Deputy Director, Food & Civil Supplies to supply mid-day meal to the Madrassa as per the scheme and also directed the Government Bikash Bank, Jania for Bank transaction in favour of the Madrassa. On the genuineness of the Madrassa being proved, the Inspector of Schools, Barpeta provided DISE Code to the Madrassa vide his Letter dated 03.11.2015. 7. The learned counsel submits that the petitioners being aggrieved with the impugned order issued by the Deputy Secretary to the Govt. of Assam, Secondary Education conveying the approval to the proposal for shifting the Madrassa from Jania to Salekura earlier filed WP(C) No. 514/2014 before this Court. This Court vide Order dated 02.06.2014 passed an interim order directing that status quo be maintained in respect of the location of the Madrassa. As such, the Madrassa is functioning in its original location till date and the students of the Madrassa have been registered under the Madrassa Board. However, due to certain defects in the writ petition, the writ petition was withdrawn with liberty to file afresh vide order dated 20.11.2015. Subsequently, the present writ petition was filed and this Court vide Order dated 30.11.2015 in view of the interim order passed in the earlier writ petition was pleased to direct the maintenance of status quo in respect of the present location of the Madrassa. The said interim order continues as on date and the learned counsel submits that under the facts and circumstances projected by the petitioners, the orders impugned in the writ petition be set aside and the interim order dated 30.11.2015 be made absolute. 8. Mr. K. Bhuiyan, learned counsel for the respondent Nos. 4 to 5 referring to the affidavit-in-opposition filed by the State respondents on 08.11.2017 submits that the respondent No. 5 is the President of the Managing Committee of the Madrassa at Salekura. The respondent No. 4 is no longer the Superintendent of the shifted Madrassa as he resigned on 23.10.2017. In his place, the respondent No. 8 has been upgraded to the post of Superintendant and he joined the post on 25.10.2017. As for the respondent Nos. 6 & 7, they are the Teachers of the Madrassa. He submits that Title Suit No. 96/2014 was filed before the Court of Munsiff No. 1, Barpeta on 27.03.2014 alongwith Misc. In his place, the respondent No. 8 has been upgraded to the post of Superintendant and he joined the post on 25.10.2017. As for the respondent Nos. 6 & 7, they are the Teachers of the Madrassa. He submits that Title Suit No. 96/2014 was filed before the Court of Munsiff No. 1, Barpeta on 27.03.2014 alongwith Misc. Case No. 36/2014 by the private respondents for declaration of the property of the Madrassa, on the basis of the original records against the petitioner No. 3 and Dapun Jatiya Vidyalaya. The petitioner No. 3 is made a party in the Title Suit as Defendant No. 1 and he has contested the Suit by filing written statement. The same is not brought to the notice of this Court in the writ petition as well as in the earlier writ petition i.e. WP(C) No. 514/2014. In fact, when the answering respondents made an objection on this point in the earlier writ petition, the petitioners were compelled to withdraw their writ petition. Therefore, the petitioners having suppressed this fact, the writ petition is liable to be dismissed. 9. The learned counsel further submits that the Managing Committee reinstated the respondent No. 4 and thereafter, the writ petition filed by him had become infructuous. That before he could withdraw the writ petition, the same was dismissed for non prosecution as the engaged counsel due to traffic jam, could not reached the Court on time. He submits that it was on public demand that the Madrassa was shifted to Jania to Salekura to its own Miadi land with due process. Under the circumstances, the learned counsel submits that the writ petition is without any merit and the same should be dismissed. 10. Ms. B. Bora, learned Government Advocate appearing for the respondent No. 3 by referring to the affidavit-in-opposition filed by the State respondents on 11.05.2018 submits that Sri. Beepul Saikia, ACS, the then SDO (Sadar), Barpeta had made an enquiry about shifting of the Madrassa from Jania to Salekura on 17.06.2015. At the time of making his enquiry, he found that half yearly examination was going on in the Madrassa at Jania and students were found to be writing their examination. As for the Madrassa claimed to be situated at Salekura, he did not find any teachers or students in the said Madrassa. At the time of making his enquiry, he found that half yearly examination was going on in the Madrassa at Jania and students were found to be writing their examination. As for the Madrassa claimed to be situated at Salekura, he did not find any teachers or students in the said Madrassa. The Madrassa at Jania is situated on a plot of land measuring 5 Bighas 2 Kathas and 10 Lechas covered by Dag No. 632 of village Jania and 4 Bighas and 6 Lechas covered by Dag No. 619 and Patta No. 362 of Salekura, revenue village total an area of 9 Bighas 2 Kachas and 16 Lechas under Bagh Bar Revenue Circle. The Madrassa was established in the year 2000 and the same is running in the plot of land at Jania since its establishment. The school never shifted to Salekura and other school was established in the same name at Salekura on a plot of land measuring an area of 1 Bigha covered by Dag No. 193 and Patta No. 202 of Salekura revenue village, which is not sufficient for establishing a senior Madrassa. That mid-day meal was granted to the Madrassa at Jania and not to Dapun Jatiya Vidyalaya. Accordingly, the learned Government Advocate submits that the claim of the petitioners are genuine and therefore, the same may be upheld. 11. Mr. C. Bhattacharya, learned counsel appearing for the respondent Nos. 1 & 2 by referring to the affidavit-in-opposition filed by the respondent No. 2 on 15.06.2018 submits that the Madrassa at Jania was established in the year 2000 and was recognized w.e.f. 01.01.2007. The Madrassa is situated under a plot of land measuring 5 Bighas 2 Kachas 10 Lechas covered by Dag No. 632 of village Jania and the same was allotted by the Barpeta Divisional Land Advisory Committee in its meeting held on 29.10.2008. He submits that as per resolution No. 1 adopted by the Managing Committee of the Madrassa at Jania in its meeting held on 13.03.2011, the respondent No. 4 was placed under suspension and the same was approved by the Director of Madrassa Education. He submits that as per clarificatory notification issued by the Director of Madrassa Education, the Administration of Venture Madrassa Institutions are totally vested upon the Managing Committee/Governing Body of the concerned Madrassa Institution. He submits that as per clarificatory notification issued by the Director of Madrassa Education, the Administration of Venture Madrassa Institutions are totally vested upon the Managing Committee/Governing Body of the concerned Madrassa Institution. As such, they have the power for selection and appointment of the employees of the Institution and approval of the Directorate is not necessary. He submits that although the Director of Madrassa Education on 31.05.2013 communicated the decision of the Government but yet, the letter reflects the arrangement made was as per the resolution dated 13.01.2013 of the Managing Committee of the Madrassa. Therefore, on any controversy regarding the shifting of the Madrassa, it will be the responsibility of Managing Committee. 12. The learned counsel further refers to the affidavit-in-opposition filed by the respondent No. 1 on 10.09.2018 and submits that the stand taken by the respondent No. 2 in the affidavit has been reiterated. He submits that as for the approval said to have been given for shifting of the Madrassa vide Letter dated 30.05.2013 and also the subsequent letter dated 31.05.2013 by the then Director of Madrassa, the same cannot have any force in the light of the Notification dated 28.02.2012, which clearly clarified that the Government had no role to play in the administration of Venture Madrassa Institutions. The said Notification dated 28.02.2012 was made in pursuance to the Government instructions vide letter No. ELC/WP(C) 2923/11/599 dated 13.09.2011. As such, the learned counsel submits that the grievances projected by the petitioners are genuine and as such, Court may pass appropriate orders. 13. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on records. 14. From the case projected by the parties, what can be seen is that the Madrassa at Jania was established in the year 2000 and was recognized w.e.f. 01.01.2007. The Madrassa is situated in a plot of land measuring 8 Bighas covered by Dag No. 643 and also land measuring 5 Bighas 2 Kathas and 10 Lechas covered by Dag No. 632. The allotment of land was done as per the recommendation of the Barpeta Sub-Divisional Land Advisory Committee in its proceedings held on 23.12.2005 and 29.02.2008. The dispute sought to be raised by the private respondents is that the Madrassa pursuant to a resolution adopted by a Managing Committee on 13.01.2013 was shifted to Salekura. The allotment of land was done as per the recommendation of the Barpeta Sub-Divisional Land Advisory Committee in its proceedings held on 23.12.2005 and 29.02.2008. The dispute sought to be raised by the private respondents is that the Madrassa pursuant to a resolution adopted by a Managing Committee on 13.01.2013 was shifted to Salekura. The fact as to whether the Madrassa was indeed shifted to Salekura or not can be clearly appreciated from the enquiry report submitted by the SDO (Sadar), Barpeta to the Deputy Commissioner, Barpeta on 29.06.2015. The report has been annexed by the respondent No. 3 in its affidavit dated 11.05.2018. As already noticed earlier, the SDO (Sadar) on making an enquiry on 17.06.2015, found that the Madrassa at Jania was conducting half yearly examinations and the students were writing the examination. As for the Madrassa at Salekura, he neither found teachers nor students in the said Madrassa. The further report made by the SDO (Sadar) is that mid-day meal was being granted to Jania and not to Dapun Jatiya Vidyalaya, which was also another allegation made against the Madrassa in Jania. 15. The stand of the respondent Nos. 1 & 2 is that the administrative control of Venture Madrassa is purely with the Managing Committee/Governing Body of the Madrassa Institution and this fact was clarified in the Notification dated 28.02.2012 by the Director of Madrassa Education pursuant to the instructions received from the State Government. It has also been further clarified that the approval for the transfer of Madrassa from Jania to Salekura was purely the decision of the Managing Committee and therefore, any controversy about the transfer would be the responsibility of the Managing Committee. In this connection, it may be seen that respondent No. 4 was removed from the Madrassa at Jania alongwith the respondent Nos. 5, 6 & 7. This is evident from the filing of WP(C) No. 2923/2011, which however was dismissed for default vide Order dated 06.06.2012. Therefore, the shifting of the Madrassa from Jania to Salekura apparently was by a Managing Committee comprising of the respondent Nos. 4 to 7, as members though they had already been removed from the Madrassa. 5, 6 & 7. This is evident from the filing of WP(C) No. 2923/2011, which however was dismissed for default vide Order dated 06.06.2012. Therefore, the shifting of the Madrassa from Jania to Salekura apparently was by a Managing Committee comprising of the respondent Nos. 4 to 7, as members though they had already been removed from the Madrassa. Vide the Order dated 27.09.2013, the order of suspension of the respondent No. 4 was said to be withdrawn in terms of the Managing Committees resolution dated 11.09.2013 and reinstated but the fact remains that the resolution to transfer the Madrassa was claimed to have been taken on 13.01.2013 i.e., before reinstatement. Therefore, it only appears that such resolution could not have been adopted with the participation of members already removed. This apart, the spot verification made by the SDO (Sadar) clearly shows that the Madrassa at Jania was functional whereas, the shifted Madrassa at Salukar was found to be non-functional. 16. In so far as the Title Suit is concerned, the claim of the private respondents themselves is that it is with regard to the properties of the Madrassa at Jania, as was originally registered and possessed. Therefore, the pendency of the Suit or otherwise creates no impediment in deciding the present controversy, which solely is with regard to shifting of the Madrassa from Jania to Salekura. Thus, upon the overall consideration of the matter in its entirety, I find merit in the writ petition. Accordingly, he impugned Letter dated 18.05.2013 (Annexure-7 (A)), Letter dated 22.05.2013 (Annexure-7(B)) and impugned Letter dated 31.05.2013 (Annexure-7(D)) are hereby set aside. 17. The interim order passed on 30.11.2015 is made absolute. Writ petition is disposed of as allowed. No cost.