Plea For Anticipatory Bail Not Maintainable Before High Court Without Approaching Sessions Court, Unless There Are Special Reasons: Allahabad High Court

 It must be said right at the outset that in a latest, landmark and laudable judgment titled Harendra Singh @ Harendra Bahadur Vs The State Of U.P. in Criminal Misc. Application No. 6478 of 2019 (Bail) delivered on July 8, 2019 by the Allahabad High Court, it has been held that plea for anticipatory bail is not maintainable before High Court without approaching Sessions Court unless there are special reasons. Justice Chandra Dhari Singh of Allahabad High Court has authored this noteworthy and commendable judgment. This noteworthy judgment makes it absolutely clear that the party has to explain why it has come to the High Court directly without approaching first the Sessions Court and anticipatory bail application filed under Section 438 of the Code of Criminal Procedure is not maintainable before the High Court without exhausting remedy before the Court of Sessions, unless there are ‘extraneous or special reasons’.

                                      First and foremost, after stating that, “Heard learned Counsel for the applicant and learned A.G.A.” in para 1,  it is then clearly pointed out in para 2 that, “By means of instant application filed under Section 438 of Cr.P.C., the applicant has sought anticipatory bail in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC lodged at Police Station, Kotwali Nagar, District Raebareli.”

                                     It would be pertinent to mention here that it is then pointed out in para 3 that, “Before adverting to the factual matrix of this case and to ascertain as to whether the applicant is entitled for grant of anticipatory bail or not; a serious legal question has been raised before this Court by the learned A.G.A. that the applicant without exhausting the remedy under Section 438 of Cr.P.C. before the jurisdiction Sessions Court, has directly approached this Court. Therefore, this application is not maintainable and the applicant has to be relegated to the Court of Sessions first and then he can approach this Court. In this background, the legal question that arises for consideration of this Court is that-

           ‘Whether the application filed under Section 438 of the Cr.P.C. is maintained before the High Court without exhausting remedy under the said provision before the Court of Sessions which has concurrent jurisdiction with that of the High Court?’”

                                  What’s more, it is then rightly pointed out in para 6 that, “On plain and meaningful reading of the abovesaid provision, it is crystal clear that it confers concurrent jurisdiction on the High Court as well as the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision.”

                                       To be sure, it is then rightly pointed out in para 16 that, “In a decision reported in 1983 (2) KLJ 8 in the case of K.C. Iyya Vs. State of Karnataka, the High Court of Karnataka has observed as follows:

          ‘7. Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter’.”

                                       In a similar vein, it is then also rightly stated in para 17 that, “In the case of Shivasubramanyam Vs. State of Karnataka and another; 2002 CRI.L.J 1998, the Karnataka High Court has reiterated the abovesaid principles and ultimately held that the application filed under Section 438 of Cr.P.C. directly to the High Court is maintainable only under exceptional and under special circumstances, but not as a routine and the party cannot come before the Court as a matter of right.”

                                In totality, it is then observed in para 18 that, “By looking into the abovesaid discussions, I am of the opinion that the party has to approach the Sessions Court first and then he has to approach the High Court which is the normal course. But the courts have also observed that in extraordinary circumstances with special reasons, the party can also approach the High Court. The High Court cannot entertain Section 438 of Cr.P.C. as a matter of routine without examining whether there are any special reasons or special circumstances to entertain the said application.”

                                      It also cannot be lost on us that it is then observed in para 19 that, “In the case of Sri Kwmia Gwra Brahma Vs. State of Assam (Bail No. 3024 of 2014), the Gauhati High Court has also expressed similar view and held that the party has to approach the Court of Sessions first under Section 438 of Cr.P.C. and he can later approach the High Court.”

                                      Needless to say, para 20 then leaves no stone unturned to make it absolutely clear that, “The intention of bringing out Section 438 of Cr.P.C. is enabling each and every person in the country if under extraordinary circumstances under exigencies either to approach the Court of Sessions or the High Court which can be concurrently exercised by both the courts. Though such remedy, cannot be riddled down by imposing any extraordinary condition but still the Court can refuse to entertain the bail petition and direct the party to approach the Court of Sessions first because Section 438 of Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors.”

                     Be it noted, it is then illustrated in para 21 why the party should first approach the lower court by stating that, “It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two courts of one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible.”

                             While continuing in the same vein as to why the parties should first approach the lower court, it is then further noted in para 22 that, “It is also to be notable that the Sessions Court will always be nearest and accessible Court to the parties. Moreover, considering the work load of the courts in the country, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.”

                                Not stopping here, it is then further observed in para 23 that, “The grant of anticipatory bail or regular bail requires appreciation, scrutiny of facts and after going through the entire materials on record. In that context, if the Sessions Court has already applied its mind and passed the appropriate order, it would be easy for the High Court to look into or have a cursory glance of the observation made by the Sessions Court and dispose of the case, with expedition.”

                                      Going forward, it is then stipulated in para 24 that, “It is also worth to note here that the Sessions Court and the High Court arte concurrently empowered to grant bail under Section 438 of Cr.P.C. The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviate the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far  as the Sessions Courts are concerned. Even once again re-looking into structure of Section 438 of Cr.P.C., it is purely the discretionary power given to the Court to entertain the Petition. It is the discretion given to the Courts to exercise that power. When discretion vests with Court, the party has to explain why he has come to the High Court directly, for the discretionary relief under the said provision.”

                                            To say the least, it is then summed up in para 25 by holding that, “Therefore, looking to the abovesaid rulings of different High Courts, I do not find any strong reason to deviate from the said view taken by the other High Courts. Hence, I am of the opinion, the point formulated by me noted above has to be answered accordingly.”

                                      While proceeding ahead on a sure wicket, it is then envisaged in para 26 that, “Hence, I answer the point raised as follows:

    “The bail application filed under Section 438 of Cr.P.C. is not maintainable before the High Court without exhausting remedy before the Court of Sessions, which has got concurrent jurisdiction. However, for extraneous or special reasons, the High Court can also exercise such power for grant of the remedy under the said provision”.”

                              Interestingly enough, it is then observed in para 27 that, “Having held in such manner, now let me see whether the petitioner has approached this Court with any such extraneous or special reason.”

                                    Briefly stated, it is then recapitulated in para 28 that, “Factual matrix of the case is that an FIR was lodged by informant Sri Atul Kumar Singh, Officer In-charge of Police Station Kotwali Nagar, District Rae bareli in Case Crime No. 476 of 2019, under Sections 419, 420, 467, 468, 471 IPC against the applicant. It is alleged in the FIR that the complainant along with S.I. Pawan Pratap Singh, S.I. Umesh Chandra, S.I. Vivek Tripathi and some police constables were engaged in checking of the vehicles. In the meantime, they received an information through “Mukhbir” that a Bolero vehicle is on the way in which 7-8 persons are seated and they are in possession of Ganja. It is also alleged that the Bolero was stopped and five persons were arrested. The arrested persons were disclosed their identity as Jitreya Tarabdar, Radheshyam Viswas, Jayant Sardar, Brojoshish Viswas and Bobby Halder.”

                               Moving on, para 29 then discloses that, “It has been averred by the applicant in the bail application that he is a member of Gram Sabha and due to difference in opinion between him and the Gram Pradhan, he has been falsely implicated in the present case by the local police. In the earlier occasion also, the son of the applicant, namely, Vikas Kumar was falsely implicated in a case at the instance of the same Gram Pradhan. It is also disclosed in the application that against the present applicant, a criminal case is pending before the court of Additional District Judge VIth, Raebareli arising out of Case Crime No. 71 of 2018, under Section 8/20 of N.D.P.S. Act but in the entire application, the applicant has not disclosed the urgency for filing the instant application before this Court directly.”

                                     As it turned out, para 30 then sums up saying that, “In view of the above facts and circumstances the learned Counsel for the applicant also failed to explain as to why he has rushed to this Court directly for seeking said discretionary relief under the provisions of Section 438 of Cr.P.C. He has also failed to disclose any extraneous or special reason.” Para 31 then states that, “Lastly, learned Counsel for the applicant has sought permission to withdraw the bail application with liberty to approach the concerned Sessions Court.”

                               Finally and most crucially, it is then held in para 32 that, “Considering the abovesaid circumstances and the request made by the learned Counsel for the applicant for withdrawing the bail application with liberty to approach the concerned Sessions Court and also in the interest of justice, the instant bail application is dismissed as withdrawn with liberty to the applicant to approach the concerned sessions court and file an application under Section 438 of Cr.P.C.”

                                  In a nutshell, this extremely laudable, latest and landmark judgment which has been delivered recently by the Allahabad High Court has served to send an unmistakable message to all litigants that they should first approach the Sessions Court only and only then should they knock the doors of the High Court. The benefits of doing so has already been pointed out in detail above. It is only under exceptional circumstances that the litigant can approach the High Court directly without approaching the Sessions Court which has to be explained also. Such permission also cannot be granted as a matter of routine unless there are “extraneous or special reasons” to do so! In this present case, the applicant clearly failed to prove any such “extraneous or special reasons” and so had no option but to withdraw the plea and the Allahabad High Court was magnanimous enough to grant the permission to do so accordingly with liberty to approach the Sessions Court! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That would take within its sweep the right to food, the right to clothing, the right to decent environment  and a reasonable accommodation to live in. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That would take within its sweep the right to food, the right to clothing, the right to decent environment  and a reasonable accommodation to live in. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Vandalism In Colleges: Allahabad High Court Issues Guidelines For All State Aided Universities

 

     It has to be said with consummate ease that in a notable and latest judgment titled Lucknow University Vandalism v. State of UP in PIL CIVIL No. 19390 of 2018 that was reserved on 29.10.2018 and delivered finally on 28.02.2019, the Allahabad High Court has commendably disposed of a suo motu PIL that it had instituted after violent protests caused injuries to many staff members of Lucknow University on July 4, 2018, by issuing temporary guidelines to all the state-aided universities. These guidelines were formulated by a Committee appointed by the Allahabad High Court on July 6. It will remain in effect until the state government and all government-aided universities frame the necessary rules and regulations to ensure a congenial and conducive environment for academic pursuits in institutions of higher learning.

As it turned out, a Division Bench of Allahabad High Court consisting of Justice Vikram Nath and Justice Rajesh Singh Chauhan had constituted the suo motu PIL after violent protests by a collection of individuals protesting against the rejection of their applications to the university. They alleged that their admission to the post-graduate courses had been denied because they had agitated against the visit of Yogi Adityanath. In the ensuing protests that followed, 10 University staff members were injured including Proctor Vinod Singh and Chief Provost Sangita Rani.

To begin with, the ball is set rolling in the  judgment by first and foremost beginning by quoting Swami Vivekananda who once famously stated that, “Education is the manifestation of perfection already in man.” The background in which the purpose of education along with work atmosphere prevalent in  any educational institution is then underscored and set out in para 1 which first and foremost points out that, “Education is the light that shows a mankind the right direction to surge. The purpose of education is not just making a student literate but after rationale thinking, knowledge and self-sufficiency. If education fails to inculcate self-discipline and commitment to achieve in the minds of a student, it is not their fault but it is somehow the fault of the entire system. Education is an engine for the growth and progress of any society; it not only imparts knowledge and skill along with inculcating values but it is also responsible for building human capital which creates, operates and sets technical, innovation and economic growth. Besides the above, if the atmosphere of any educational institution, in particular that of higher educational institution is not worthy of studying, nothing can be achieved out of that organisation and all that the students would achieve would be the degraded values, uncivilised and rustic behavior, irresponsible attitude towards the society and nation, sense of responsibility for one and all, etc. Resultant thereof there would be no scope and hope for development of the society and nation in all walks of life, whether it is social, economic, technical, political, philosophical etc. If the atmosphere of any higher educational system/institutes is destroyed, it results in the complete destruction of the values and thus the very purpose of such an organisation is defeated.”

While narrating the nitty gritty of this particular case, it is then observed in para 2 that, “In a backdrop of peculiar facts and circumstances, this Court took cognizance of a news item published in almost all the newspapers in respect of an unbecoming and unfortunate incident dated 4.7.2018 whereby a group of about 25 students, some of whom were rusticated students of the Lucknow University, entered into the University premises in the morning, blocked the way of the Vice Chancellor, raised slogans and threatened him of dire consequences. The motive of the aforesaid untoward incident was to pressurise the Vice Chancellor to take back the rusticated students in the University. It appeared that the said move was politically motivated inasmuch as the slogans to that kind were being uttered by some of the rusticated students. Anyhow, the Vice Chancellor escaped from the aforesaid vandalism with the aid and assistance of the security personnel of the University but in the afternoon when the Vice Chancellor was returning from one function, these students attacked him and his security inside the University campus, resultant thereof about ten teachers of the University were injured along with several security personnel and other ministerial staff of the University. Taking suo motu cognizance of the aforesaid incident in question, this Court passed an order dated 5.7.2018 as under:-

“In all the leading newspapers of Lucknow one of the front-page news is about the attack on the teachers of Lucknow University forcing the Vice Chancellor of the University to close the University indefinitely (sine die) and also at the same time stalling the entire admission process for the Academic Year 2018-19. The report further mentions that on 4.7.2018 a group of about 25 students which included some of the students who had been expelled from the University entered the University premises firstly around 11.30 A.M. and surrounded the Vice Chancellor and raised slogans and also threatened him of dire consequences and demanded re-admission. Later again at about 1.30 P.M. when the Vice Chancellor was returning from a function inside the University premises, these students again attacked the Vice Chancellor and his security. In the entire transaction that took place about 10 teachers of the University were injured along with several security and other ministerial staff of the University. The newspaper report further mentions that the police was informed about the likelihood of the expelled students creating ruckus but despite the same local police did not take appropriate measures to control the situation which was apprehended by the University administration.

It is unfortunate and extremely painful that the students have the courage, audacity and boldness to enter the premises from where they have been expelled and tried to create physical violence and attacked the Vice Chancellor, teachers of the University and staff of the University. Copy of the Hindustan Times Daily published from Lucknow and Dainik Jagran Daily published from Lucknow be made part of the record.

We accordingly direct that this may be registered as a Public Interest Litigation titled ‘Lucknow University Vandalism’.

Put up tomorrow at 10.15 A.M.

We require the presence of the Vice Chancellor, the Registrar and the Proctor of the Lucknow University before the Court for providing necessary assistance. Further we require the presence of the Director General of Police, U.P. and the Senior Superintendent of Police, Lucknow to inform the Court about the steps taken when the University authorities first informed about the likelihood of the incident taking place and also the steps taken after the incident had taken place. Sri Ramesh Pandey, learned Chief Standing Counsel will inform all the authorities mentioned above, both that of University and also of administration so that their presence is ensured”.”

To be sure, it is then explained in para 3 about taking suo moto cognizance by the Court that, “The purpose to take suo motu cognizance of the aforesaid incident was not confined to Lucknow University, but was to bring under its ambit and take judicial notice of a state-wide issue of rampant vandalism and anarchy prevalent in most government aided institutions/Universities in the State, relating to the environment in higher educational institutions, University or Degree College or Medical College or Management College etc. so as to ensure an atmosphere which is conducive and which encourages the students to attain their goals as per their dreams, and where parents do not hesitate in sending their wards to the institution concerned for the reason of any non-congenial, un-academic or unruly atmosphere. If the atmosphere of the higher University/Institute is such where vandalism, goondaism and anarchy is so deep rooted and is a routine feature, no sensible and responsible parent and student would prefer to take admission there. Normally, such types of incidents take place in higher Universities/Institutions, which are managed and controlled by the Government as against the private Institutions/Universities that maintain proper discipline. The stark contrast between the institutions managed/controlled by the Government and private universities/institutions is glaring when it comes to lack of security measures for students and staff on University campus. This Court vide order dated 6.7.2018 expressed its concern as under:-

“We had registered this Public Interest Litigation (P.I.L.) not only for the unfortunate incident which took place at the campus of Lucknow University, but also taking into consideration the number of incidents of rowdyism and vandalism which are occurring in the public institutions of higher education and learning in the State. Violent protests, vandalism, and aggressive agitation are not protected under the umbrella of the Right to Freedom of Speech and Expression and neither our constitutional ideology nor our values endorse it. In fact, such acts only tarnish the core values and ethos of the Constitution.

The incidents of vandalism in Universities’ campuses are spreading and it is becoming a recognizable national pattern. The students instead of adopting peaceful means of protests are now adopting radical and aggressive methods of protests, which are intensifying with each passing day. The support of political parties to such students bodies has further polarized the situation and is going against the spirit of student activism. In the present case, there is visible support of the outsiders in the vandalism, who are not associated with the institution in any manner.

Universities are the temple of modern India. They are the protective spaces for the promotion of democratic ideals of social imagination and civic values. They are trusted upon to educate and produce intelligent, compassionate, critically engaged citizens fully aware of the fact that without informed and educated citizens, there will be no law and order. But at present what is happening across the public universities in the country is juxtaposition. Students need to feel safe in order to learn, and therefore, it is necessary that we have discipline, law and order, a friendly environment of teaching and learning at all educational institutions. Failing in providing so, good students are turning their backs from public universities where education is provided for peanuts and moving to private universities and institutions which are charging hefty fees and flourishing. The basic requirement is determination of good learning environment in these Institutions. The Government is spending Crores of rupees on these Institutions, providing subsidized education for all. Entire infrastructure and human resource made available for imparting education is being utilized to the minimum and in fact is being wasted.

When so much expenditure is incurred, we feel it would be befitting that such huge expenditure would be appropriately and properly utilized to produce the best and for that, if a little more is required to spend, the Government should not think even twice, but implement such security measures as they may deem fit to ensure the best learning environment for the students.

Instead of involving all the different concerned Departments, we require the Chief Secretary of the State to constitute a Committee of the Principal Secretary and experts in the subject for designing a mechanism and laying down standard guidelines and policies for safe and healthy learning environment at these Institutions where students may come free from any kind of apprehension or fear of getting into any incident or mess and the parents may also feel free to send their children to such Institutions, rather than keeping them at home and suggesting that Institutions are unsafe or diverting them to other Private Institutions”.”

Going ahead, the Bench then observes in para 4 that, “Expressing its concern, as above, this Court vide order dated 6.7.2018 fixed the next date for 16.7.2018 and issued direction as under:-

“By the next date fixed, the Chief Secretary will file an affidavit, placing on record constitution of committee as required above and also may be fixed for the Committee to submit its report. We also require the Vice-Chancellor, Lucknow University to work out on similar lines by constituting a Committee and submitting the suggestions. He will also indicate in his affidavit the Constitution of the Committee and the time the Committee would take to submit its report.

Let a copy of the order be provided to Shri Ramesh Pandey, learned Chief Standing Counsel, free of cost, latest by Monday i.e. 9.7.2018, for necessary compliance. Other parties may obtain certified copies of the order on payment of usual charges.

The personal appearance of Vice-Chancellor and the Director General of Police would not be necessary for the next date, however, they are free to come to apprise the Court, but the Proctor, the Registrar of the Lucknow University and the Senior Superintendent of Police will remain present on the next date”.”

It would be instructive to note that it is then illustrated in para 5 that, “On 16.7.2018, this Court passed the following order: –

“Pursuant to our order dated 6.7.2018, the Proctor, the Registrar of the Lucknow University and the new Senior Superintendent of Police, Lucknow, Shri Kalanidhi Naithani are present.

Shri Savitra Vardhan Singh, learned counsel representing Luknow University has filed two separate affidavits, one sworn by the Vice-Chancellor and the other by the Proctor of the Lucknow University. Further, Shri V.K. Shahi, learned Additional Advocate General along with Shri Ramesh Pandey, learned Chief Standing Counsel and Shri Siddharth Dhaon, learned Additional Chief Standing Counsel have filed three separate affidavits, one sworn by the Chief Secretary, the other by the Director General of Police and the third by the present Senior Superintendent of Police, Shri Naithani.

Copies of the affidavits filed by the University have been provided to the State. Appropriate reply may be given within 10 days.

Further, in the affidavit filed by the Chief Secretary, an office order dated 13.7.2018 has been annexed as Annexure-I, whereby a Committee of 11 members have been constituted under the Chairmanship of the Additional Chief Secretary, Higher Education, Department of Government of U.P. and the said Committee is required to submit a report within a month, as observed in the order dated 6.7.2018.

Further, from perusal of affidavit of the Director General of Police reflects that on 5.7.2018, the Circle Officer, Shri Anurag Vats was transferred. Further, the Senior Superintendent of Police, who was posted at the time of incident, has also been transferred on 7.7.2018.

Annexure-A3 is a circular issued by the Director General of Police to all the Senior Superintendent of Police and Superintendent of Police in-charge of the different districts to provide adequate security and ensure that the atmosphere in the Institution of Higher Education of the State is made safe and secure.

According to the affidavit filed by the present Senior Superintendent of Police, the investigation is still going on. Separate police teams have been constituted to arrest the accused who have not been arrested so far. Only 7 accused have been arrested so far. In paragraph 15, it is stated that adequate police force has been deployed at the campus to keep the campus safe and secure. Other steps taken by the present Senior Superintendent of Police have also been mentioned in the affidavit and necessary papers have been attached. Further, 15 days’ time is sought by the Senior Superintendent of Police to arrest the remaining accused and complete the investigation.

The Proctor and the Registrar may submit their replies to the affidavits filed by the State today, if they so desire.

In the affidavit filed by the Vice-Chancellor, Annexure-A5 is an office order dated 11.7.2018, whereby a Committee of 15 members, chaired by the Vice-Chancellor, has been constituted to submit its report as required in the order dated 6.7.2018. In paragraph 17 it has been stated that the Committee will submit its report within 15 days from today.

In our order dated 6.7.2018, we had heard the parties present before the Court orally and had accordingly required them to file their affidavits to place their respective versions, which included 3 officers of the University and two from the Police Department. We have been informed that after passing of the order dated 6.7.2018, the Police administration transferred the then Senior Superintendent of Police on 7.7.2018. No affidavit has been filed by the then Senior Superintendent of Police. A reply may be filed to the affidavit filed by the Proctor by the then Senior Superintendent of Police also.

Further the Principal Secretary (Home) and the Director General of Police, both may file their separate affidavits placing on record the urgency and the reason why the Senior Superintendent of Police was transferred on the very next day when we had taken cognizance and had passed the order dated 6.7.2018.

On this aspect, we are not observing anything at this stage but after perusal of the affidavits of the Director General of Police and Principal Secretary (Home), if necessary, the same would be appropriately dealt with.

List this matter on 06th August, 2018 at 10.15 a.m.

By the said date the University would submit it’s report as it has required 15 days’ time and the progress of the Committee constituted by the Chief Secretary may also be placed on the next date.

On the next date, the Proctor of the Lucknow University and the Senior Superintendent of Police, Lucknow may again remain present”.”

Furthermore, it is then noted in para 6 that, “In compliance of the order being passed by this Court, Sri VK Shahi, learned Addl. Advocate General gave a statement on 13.8.2018 before this Court, that a Committee, as per the directions of this Court, has been constituted under the Chairmanship of Additional Chief Secretary, Higher Education in which there are eleven members and the said Committee is deliberating on the issue and would be submitting its report within fifteen days. On the same date i.e. 13.8.2018, two affidavits, one by Professor Vinod Singh, the Proctor and the other by the Vice Chancellor of the University were filed giving suggestions regarding modalities, which are required in the interest of the Institution in question. A copy of those suggestions was provided to the Committee so constituted under the Chairmanship of Additional Chief Secretary, Higher Education with the direction for the consideration and providing with further suggestions so that the atmosphere of these higher educational institutions be conducive, fixing the next date as 4.9.2018. Sri V.K. Shahi, learned Addl. Advocate General apprised the Court on 4.9.2018 that the Committee of eleven persons constituted by the Government is deliberating and apparently its report has been prepared, therefore, a week’s further time was sought to place the aforesaid report on record. Therefore, the case was posted for 18.9.2018.”

What follows next is what is so explicitly stated in para 7 that, “On 18.9.2018, Sri V.K. Shahi, learned Addl. Advocate General filed two affidavits; one was sworn by the Superintendent of Police, Lucknow placing on record status of the investigation and another one duly sworn by the Secretary, Higher Education, Lucknow enclosing therewith a copy of suggestions given by the Eleven Members Committee constituted by the Chief Secretary, Government of U.P. under the order of this Court. Since the suggestions had already been provided by the Vice Chancellor of Lucknow University on 6.8.2018 and the suggestions by the State Government through affidavit were filed later, this Court directed the Vice Chancellor, Lucknow University to examine the suggestions given by the Committee of the State Government and thereafter prepare a comprehensive report of suggestions which the University may prepare incorporating all the suggestions of the Committee of the State Government, which are not included in the University Report/ Suggestions so that this Court could consider the same on the next date and pass appropriate orders. This Court on 18.9.2018 directed the counsel for the Lucknow University to prepare a comprehensive report and place it before the Court in Hindi and English both, fixing the next date for 29.10.2018.”

To put things in perspective, it is then very rightly underscored in para 8 stating that, “The endeavour of this Court was to determine and prescribe the modalities to create perfect educational atmosphere in the higher Universities / Colleges / Institutes, be it Government Organisations, semi-Government organisations or private organisations so that the students of these organisations / institutes could not only achieve the best education, but also achieve their goals and prove to become assets to the society. It would be in the best interest of the nation inasmuch as the students, who reach on to higher posts and positions in the State instrumentalities and become the instrumentalities in policy making and could contribute their best. The modalities which are set up, rather have been determined and settled jointly by the State Government as well as by the Vice Chancellor of the Lucknow University would be fruitful not only for the University of Lucknow but for all the Universities; whether it be Medical University or Engineering College, Management College or any Degree College of the State Government.”

More importantly, it would be incumbent to now mentions what para 9 illustrates. It states quite explicitly and elegantly that, “On 29.10.2018, learned counsel representing Lucknow University filed an affidavit sworn by the Vice Chancellor, Lucknow University enclosing therewith a copy of the comprehensive report relating to the security measures to be taken by the higher educational institutions of the State as also by the State administration.”

For the sake of brevity, it must be said that in this same para 9, it is then mentioned specifically that,

“Comprehensive Report pursuant to order dt. 18.09.2018 passed by the Hon’ble High Court in PIL Civil No. 19390/2018

In due compliance of the directives of Hon’ble High Court the Vice-Chancellor, Lucknow University submitted his report as an Annexure to his Affidavit Dt. 06.08.2018. To the same reference 11 member Committee constituted by the State convened its meeting on 06.08.2018. After thorough discussion for providing conducive and free environment to the student for education in Universities/Institutions and to frame security standards and procedure report was prepared and submitted before the Hon’ble High Court by the State. In view of the order dt. 18.09.2018 and to prepare a comprehensive report, perusal of the report/minutes dt. 06.08.2018 prepared by the State was done. To invite more suggestions on the subject issue the Vice-Chancellor, Lucknow University convened a meeting of the Vice-Chancellors of all the Universities of the State of U.P. on 23.10.2018. Under the Chairmanship of the Vice-Chancellor, Lucknow University, the Vice-Chancellor of the six Universities and Registrars of the other Universities participated. During the meeting discussion at length was done for providing education friendly, free and healthy environment to the students of the University/Educational Institutions. Security measures and standards for maintenance of law and order in the Universities was also discussed. During the meeting there was a consensus about following measures for necessary action at the level of University Administration/State Administration.

Action to be taken at the level of University Administration:

1.  The Proctor along with his team shall visit all the departments of University on regular intervals and ensure tough measures for security. He should maintain law and order in the campus by conducting surprise checks.

2.  By department-wise co-ordination with the Heads of Departments responsibility and administrative work should be allotted to every member of proctorial team.

3.  Fundamental Security standards should be established for controlling and regulating such incidents in University. Directives should be prepared for permitting entry to the students, teachers and employees of the University.

4.  Grievance Redressal mechanism should be enforced for immediate redressal of the grievances of the students and the employees.

5.  For ensuring internal security of the Universities and making standards, security audit of the campus should be done in due consultation with Police Administration.

6.  For successful functioning of the Central mess or other mess of the University hostels, a committee should be constituted so that timely action could be ensured to deal with the unexpected incidents in the hostels.

7.  For maintaining peace and discipline in the University, the Proctor of the University should make effective protocol and should ensure compliance.

8.  Student Care System should be established at the level of University and regular efforts should be made for its empowerment.

Action to be taken at the level of state administration/district administration:

1.  Regular meetings of the State level coordination committee must be ensured so that security standards in the Universities could be effectively implemented.

2.  The Proctors of State Universities should be delegated with the powers of an Executive Magistrate as under Criminal Procedural Code on a permanent basis. These powers are conferred to them temporarily only during examination times.

3.  Universities should be declared Academic/peace zones. Necessary legal action should be taken against whosoever found violating such zones.

4.  For staging dharna/demonstration by the students, permission from University/District Administration should be made compulsory. Such demonstrations should be banned in University campus and should be permitted only on the places as identified by the District Administration outside the University.

5.  Unauthorized entry of the outsiders and expelled students into the University Campus should be kept in the category of Criminal Trespass and action should be taken under the relevant provisions of Criminal Law Amendment Act/Goonda Act.

6.  The District Administration should ensure the security audit standards of the campus in due coordination with University Administration.

7.  Section 144 format should be prepared by police administration and guidelines should be prepared for its implementation in due consultation with university administration.

8.  No student group under the banner of any political party should be allowed to enter into the University Campus. Unauthorized dharna/demonstrations should be prohibited under Section 144 of the Criminal Procedure.

Needless to say, it is then clarified in para 10 that, “The above-mentioned directions / measures are not all-inclusive and are open to additions by the appropriate authorities, so as to ensure the best interest of students, staff and Universities / institutions’ motto and curriculum and ought to be incorporated and enacted upon by the concerned Universities / institutional authorities so as to ensure the best possible outcome from each student, faculty and staff member. These guidelines would provide these government managed / controlled institutions / Universities to compete and be at par with the private institutions by eliminating anti-social activities and elements, thus resulting in meritorious and diligent students to opt for and take admission in these government managed / controlled institutions without any hesitation.”

It also cannot be discounted that it is then observed in para 11 that, “This Court has taken judicial notice of the budget sanctioned by the State for the State controlled / managed Universities / institutions which is a whooping amount of Rs 3506376 lacs i.e. almost Rs. Three thousand fie hundred crores for the educational financial year 2018-2019.” Para 12 then illustrates the enormous budget allocated for higher education in the state of U.P. for the financial years 2016-2017, 2017-2018 and2018-2019.

Now coming to para 13, it minces no words in holding that, “It has been noticed by this Court that a huge budget is allocated for higher education but the atmosphere of the higher educational institutes of U.P. whether it be University or Colleges is not so productive and conducive for students inasmuch as quite often there is threat of insecurity for trivial issues. Students, who are not interested in studying and are interested in destroying the educational atmosphere of the University / Organisation ruin and collapse the entire atmosphere of the organisation for their ulterior motives resultant thereof the students at large, who are genuinely interested in studying, who come to the University to achieve higher standards in studies so as to achieve their goal, cannot achieve the same and sometimes give up on their dreams and aspirations, knowingly and unknowingly, and join those anti-social elements of the University, who are proxy students or ostensible students, consequently, depriving the nation from dedicated students with good academic background. All the aforesaid anti-social activities can be cured by adopting proper mechanism as there is no scarcity of funds, therefore, the aforementioned huge fund may be utilised in maintaining law and order along with a good, conducive and productive atmosphere in the campus.”

Honestly speaking, the Bench then acknowledges candidly in para 14 that, “We cannot turn our eyes away from the apparent and ostensive difference in tuition fee between the government managed / controlled institutions and the private universities / colleges, the result of which is evident when it comes to quality of education being imparted at both types of institutions.”

What’s more, the Bench then points out in para 15 that, “Education empowers an individual with intrinsic as well as instrumental values. It is but a means of development of the society as a whole which in effect is a step towards the empowerment of mankind. For this purpose to be truly fulfilled, education friendly environment is a must. With the Right to Education having been deemed as a Fundamental Right, our policy makers have ensured that proper and solid foundation be laid towards achieving this goal of educating every young mind in the nation. But it is important to take note here that an academic friendly environment is not only necessary just at the basic, primary level but also in higher educational institutes / Universities. It is these higher educational institutions / organizations that pave way for the next leaders of the nation in all streams of life, and therefore it is of utmost importance that a professional, productive and constructive environment is maintained in these institutes so as to enable the students to achieve their academic goals.”

It cannot be lost on us that the Bench then in para 16 among other things acknowledges the unpalatable truth that, “Unwarranted behaviour on University campus as in the present case which encourages vandalism, hooliganism, goondaism and anarchy is becoming a pattern / trend in the country and as is evident in this case, students with political / monetary backing are creating ruckus and chaos without any fear of sanction. It is time that these corrosive activities in the name of Student Body Elections and other activities be checked and controlled as per the regulations applicable by the Supreme Court not just for the sake of security but also to inculcate the ideology and principle of idealism and professionalism on campuses. It is the duty of the administrative system of the University and the State to ensure mental peace and safety for their children within the minds of parents.”

Simply put, the Bench then stipulates in para 17 that, “To ensure and fulfil the agenda, initiated today via this PIL, it is of utmost importance that the guidelines / measures above discussed should be implemented and enacted upon with utmost urgency so as to achieve productive and positive outcomes.”

Truth be told, the Bench then also acknowledges in para 18 that, “It has also been noticed that despite the colossal amount allocated to the University / Universities in budget, students with quality academic background and merit do not turn up to take admission on account of non-productive atmosphere in such Universities and these students prefer Private Universities / Colleges over Universities / Colleges managed and controlled by the Government. It is a well-known fact that with the backing of the sanctioned budget by the State, the government managed / controlled institutions / Universities hire the best ie. Crème de la crème, of faculty after due process and proper vetting. But due to the non-academic environment present in most of these institutions / Universities, meritorious students who avoid taking admission in the said Universities / institutions are depriving themselves, thus resulting in wastage / non-optimum utilization of the vast reservoir of knowledge at their dispense. The State is willing to finance and pump in money for the betterment of students as is evident from the budget quoted in the earlier part of this order but it’s a shame that the best of the best students cannot make use of this facility because of such unruly activities. Further, the free structure is very low and no substantial fund is generated out of fee of the students because of which for financial aid, such Universities bank upon the Central / State budget. The Universities may utilize this budget to uplift the educational atmosphere and standard of the University by providing good facility of library, improving standards of faculties, creating extra curriculum facilities relating to education, social, philosophical, physical and mental fitness etc in the Universities besides a sense of security and protection so that not only good students get attracted to the University but are also able to achieve high standards in life which would be in the best of their interest and in the best interest of the nation too. Therefore, the modalities which have been suggested by the competent authority of the State as well as by the Vice Chancellor of the University as considered above may be adopted in its letter and spirit.”

Finally and perhaps most importantly, it is then directed by the Allahabad High Court Bench in para 19 that, “We accordingly issue a Mandamus to the State Government and to all the government aided institutions of higher education and learning in all streams of education to frame the necessary statutes, rules and regulations and by laws / ordinances as may be necessary for maintenance of a congenial and conducive atmosphere of education within the campuses taking into consideration the suggestions / recommendations contained in the comprehensive report quoted in this order and any other provision which may be deemed necessary as we have already held that the suggestions and recommendations contained in the report are only inclusive and not exhaustive. For the said purpose we also direct the State Government and the government aided educational organizations to bring about the necessary laws within six months and till such time as necessary laws are enacted, the suggestions and recommendations quoted above may be implemented forthwith.”

All in all, this latest, landmark and laudable judgment by the 2 Judge Bench of the Allahabad High Court was the crying need of the hour! The State Government and the government aided educational organizations must abide by what the Allahabad High Court has directed so commendably and courageously by constituting suo moto PIL. It brooks no delay anymore! The comprehensive report submitted must be implemented in totality at the earliest along with other all such measures which even though not listed but are necessary in making the atmosphere of educational institutions more conducive and vibrant!

Adityanath hate speech : Supreme Court Serves notice to UP Government

NEW DELHI: The Supreme Court on Monday asked the Uttar Pradesh government to explain in four weeks why Chief Minister Yogi Adityanath should not be prosecuted for an alleged hate speech he gave in 2007 in Gorakhpur.

A Supreme Court bench comprising Chief Justice of India Dipak Misra asked the government to reply as to why he should not be prosecuted for allegedly giving a hate speech in 2007,

The Allahabad High Court had upheld a decision by the Uttar Pradesh government to deny sanction to prosecute Yogi Adityanath in the case. The court has sought a response to the notice within four weeks.

In November 2008, the petition was filed by Mohammad Asad Hayat and Parvez, who said a hate speech by the chief minister had triggered the riots in which one person was killed. Parwaz was a resident of Gorakhpur and had filed an FIR in connection with the riots and Hayat was a witness in the case.

Adityanath, who then represented Gorakhpur in Lok Sabha, was arrested and also remanded to police custody for 11 days.

Mosque demolition: Clean-chit for Advani challenged by CBI

The CBI Friday moved the Supreme Court challenging the Allahabad High Court verdict discharging Bharatiya Janata Party leader L.K. Advani and 20 others of the allegation of demolishing the Babri Masjid in Uttar Pradesh’s Ayodhya Dec 6, 1992.

Advani and 20 others were discharged by the high court May 20, 2010 in a case in which they were accused of conspiracy to demolish the Babri Masjid.

The move by the Central Bureau of Investigation (CBI) assumes significance as it comes on the eve of the budget session of parliament and the government, clouded by various scams, appears to be on the back foot in the wake of the opposition parties’ offensive