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CASE NO.: Appeal (civil)  4927 of 2006

PETITIONER: Ayudh Upaskar Nirmani Kalyan Samiti, Kanpur

RESPONDENT: Govt. of India and Ors

DATE OF JUDGMENT: 14/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P (C) No. 23892 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Allahabad High Court  dismissing the writ petition filed by the appellant under Article  226 of the Constitution of India, 1950 (in short the  ’Constitution’).          Background facts in a nutshell are as follows:- The writ petition was filed for quashing the order dated  l.4.2005 passed by the Joint Director (Personnel and  Administration), Ordnance Equipment Factories, Kanpur, (in  short ’OEF’), the respondent No.4 and the order dated   21.6.2005 passed by the Director General, Ordnance  Factories, Government of India, Kolkatta, respondent No.6.  A  further relief was sought for restraining the respondents from  interfering with the running of the O.E.F. Secondary School  (hereinafter referred to as the ’Secondary School’) from the   premises in question pursuant to the aforesaid orders and for  restraining the respondents from demanding an amount of  Rs.18,307/- towards monthly rent and Rs.21,968/- and  premium towards lease rent and to permit the appellant to  run the Secondary School on payment of rent of Rs.3,904/-  per annum. A direction for refund of the amount of  Rs.32,95,315/- to the appellant  which had been deposited by  it,  was also claimed.

The appellant (for sake of convenience described as  ’Society’) had been registered under the provisions of the  Societies Registration Act, 1861 (hereinafter to as the ’Act’).  The said Society has been established by the officers and  employees of the OEF. Basic object of the Society is to impart  education to students in the field of Art, Science and  Commerce by establishing Institutions. The Society has  accordingly established the aforesaid Secondary School, which  is recognized by the Central Board of Secondary Education (in  short ’CBSE’).  The Secondary School is running classes from  class I to class XII and there are about 1000 students and 35  teachers.

According to the appellant, previously a Kendriya

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Vidyalaya was being run and managed in the building in  which the present Secondary School is being run. Upon  shifting of the Kendriya Vidyalaya to another place, the  building along with the playground was handed over to the  OEF. The appellant Society was then constituted by the  Officers and employees of the OEF for the purposes of  establishing the Secondary School and an application was  submitted by the Secretary of the Society to the General  Manager of the OEF in the year 2000 seeking permission to  run the Secondary School in the building. A certificate dated  14.6.2000 was issued by the Deputy General Manager of the  OEF certifying that the building, which had been vacated by  the Kendriya Vidyalaya, had been handed over to the  Secondary School. A communication dated 2.8.2001 was also  sent by the Works Manager (Administration) of the OEF to the  Secretary of the Society enquiring as to whether the total lease  rent of Rs.3,904/- per annum was acceptable to it. This letter  was replied to by the secretary of the Society pointing out that  the annual rent of Rs.3,904/- was acceptable to it.

The Director General then sent a communication dated  4.4.2005 to the Chairman of the Managing Committee of the  Secondary School conveying the directives of the Chairman  which are as under:

i)      OEF Secondary School run by OEF Kalyan Samiti  shall not run from OEF premises after the academic  session 2005-06 ends All concerned should be  intimated about the same immediately. ii)     No student should be taken in class IX and class X  in the academic year 2005-06.  iii)    The Managing Committee should deposit  Rs.32,95,315/- (Rupees Thirty Two lakhs Ninety  Five thousand Three hundred and fifteen only)  lease rent plus premium within the period of one  month without fail. iv)     The Managing Committee shall pay a monthly rent  of Rs.18,307.00 till the school functions from OEF  premises i.e. till the academic session 2005-06.

It was further ordered that a compliance report may be  submitted. This order dated 4.4.2005 was challenged by the  appellant by filing Writ Petition No. 39846 of 2005 which was  disposed of by the High Court by the judgment and order  dated 17.5.2005 with the following directions:-

"After hearing learned counsel for the  parties we dispose of this petition in terms of  the undertaking given by Sri U.N. Sharma,  learned Senior Counsel on behalf of the Board  that no action adversely affecting the  petitioner pursuant to the order dated  4.4.2005 shall be taken till the mater is  decided by the Board. However, we make it  clear that in case the petitioner is aggrieved  by the order passed by the Board, he shall be  at liberty to approach the appropriate Forum  and the deposit already made by the  petitioner shall be subject to the decision to  be taken by the Board".

After the decision in the aforesaid writ petition, the  appellant filed a representation dated 14.6.2O05 before the  Chairman of the OEF. This representation was rejected by the  Board by the order dated 21.6.2005 which was impugned in

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the writ petition. In the order it has been observed that  according to the guidelines, the Society was created by well  meaning officers and staff to look after the educational  requirement of the wards of the employees and allied  establishment, but the rational behind the creation of the  Society had lost its relevance as only 10% to 11% of the total  students of the school are wards of employees and officers.  Thus the decision was taken to close down the School more  particularly when the Audit Department had also raised  objection.  In the order it was also pointed out that the School  was running without there being any sanction of the  Competent Authority as per the Land Lease Policy. A further  observation was made that the Board has also given directions  several times in the past that officers of the Organization  should not involve themselves in the running of the  Educational Institutions and should instead concentrate on  their core activity for which they had been arrived at on wrong  understanding of the relevant provisions. According to the  correct calculation the lease rent shall be Rs.2,19,688/- per  annum and one time premium was also to be charged. The  appellant was, therefore, directed to comply with the directives  contained in the communication dated 4.4.2005. This order  dated 21.6.2005 was also impugned in the writ petition. By  the impugned judgment, the writ petition was dismissed.  

       Learned counsel for the appellant submitted that the  High Court erroneously proceeded on the basis that the  occupation of the premises in question was unauthorized.   Earlier in the same premises, a school was being run by the  Kendriya Vidalaya. Society which is registered has as its  members, officers and employees of the OEF.  The school is  primary meant for the children of the employees and officers  of the factory.  Documents on record go to show that  permission as requested was granted and the monthly rent  was fixed at Rs.3,904/-.  The premium has been raised to  Rs.18,500/- p.m. in addition to the arrears of the amounts of  Rs.32,95,315/- which has been deposited on 5.5.2005. The  school which is running in the premises is affiliated to CBSE.  Only after the High Court’s order, the affiliation was   discontinued. But in view of the order passed by this Court  the affiliation has been restored.  About 1000 students are  prosecuting their studies. It was pointed out that reasonable  time may be granted to the appellant so that the students who  are prosecuting in class IX and XI of the institution can  appear at the final examinations. With reference to policy of  the OEF, it is submitted that the appellant is willing to pay the  lease amount and has in fact deposited about Rs.22 lakhs on  5.5.2005.  

In response, it is  pointed out that though appellant   claims that school is meant for the wards of the employees  and the officers, their number is 10 to 11 percent of the total  students strength.  It is pointed out that the so called handing  over of  possession was done by the same person who had  applied for the allotment of the land. Because of the fact that  large number of students are unconnected with the families of  the employees and the officers, there is likelihood of security  problems.

       In reply, learned counsel for the appellant submitted that  the possession was handed over to the appellant and it was  within the knowledge of all concerned. Nearly 600 students   were earlier prosecuting their studies.  They continued in the  appellant’s school.  Subsequently, there may have been some  variation in the number of students, but that cannot be a

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ground to refuse continuance of appellant in the premises.

We find that undisputedly, there is no decision of the  OEF Board to grant any lease.  But at the same time the  school has been running and was affiliated to CBSE.   Students are prosecuting their studies.  In that sense the  students prosecuting their studies are not students of any  non-affiliated institution.  At the same time, it cannot be lost  sight of that contrary to the original position the percentage of  wards of employees and officers is less than 15%. Therefore,  the stand that there is valid sanction in favour of the  appellant to run the school in the premises cannot be  accepted.  It is not disputed by learned counsel for the  respondents that students are prosecuting studies in class IX  and XI. It would not be in the interest of students to direct  immediate closure of the institution and/or to direct the  appellant to vacate the premises forthwith.   

Let an  undertaking be filed by the appellant to vacate  the premises latest by 31.3.2008 with the further undertaking  to pay the amounts to be charged by the respondents for  occupation of the premises.  On such undertaking being filed,  appellant shall be permitted to occupy the premises till  31.3.2008.    

The appeal is accordingly disposed of. However, disposal  of the present appeal shall not stand on the way of the  appellant moving the authorities for grant of lease of the  premises in question. If such request is made the same shall  be considered in its own perspective about which we express  no opinion.  There will be no order as to costs.