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Natthi Lal Saraswat v. State of U.P. And Others - WRIT - C No. 3366 of 2004 [2004] RD-AH 52 (30 January 2004)


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Civil Misc. Writ Petition No.3366 of 2004

   Natthi Lal Saraswat    .........    Petitioner


State of U.P. & Ors. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. Arun Tandon, J.

(By Dr. B.S. Chauhan, J.)

Petitioner is a resident of village Chauhari, post office Sonai, Tehsil Mant, District Mathura. He has filed the present writ petition for a direction to the respondents not to construct the school building in the village on the ground that the construction of the said building is being raised on a piece of land, which is reserved for cremation purposes.

Shri R.B. Singh, learned counsel for the petitioner has submitted that the land reserved for cremation ground cannot be used for constructing the building of a Junior High School. It is desirable that the building of the Junior High School should be constructed closer to the location of the primary school, as it would be more convenient for the school going children. The said construction is illegal and in contravention of the statutory requirements. The respondents should be restrained from constructing the building of the school on the premises in dispute.

Shri C.K. Rai, learned Standing Counsel has vehemently opposed the petition contending that the land is being used for a good cause. Basic education is a fundamental right of all the children. Land available near the primary school cannot be permitted to raise construction of the junior high school as the same is a playground of the primary school. Court should not grant any indulgence in such a matter on a technical ground. If there is no sufficient land for cremation, the District Collector is competent to earmark the sufficient land for that purpose separately but as the construction of the school has already started, at this stage Court should not interfere.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

The Constitution Bench of Hon'ble Supreme Court in Unni Krishnan J.P. Vs. State of Andhra Pradesh & Ors., AIR 1993 SC 2178, has held that basic education is a fundamental right of every child. Right to life includes right to education, as it flows from the right to life guaranteed under Article 21 of the Constitution of India. Activity of imparting education is neither trade nor a commercial activity. It has always been treated as a religious duty, therefore, may be a charitable activity but never a business.

Personality of a child is developed during the basic education during his formative years of his life. Teaching alphabets and figures are not the only constituents of imparting education. It requires development of the child in all the fields. (Vide Andhra Kesari Education Society Vs. Director of School Education & Ors., AIR 1989 SC 183; Ram Sukh & Ors. Vs. State of Rajasthan & Ors., 1990 SC 592).

In Dental Council of India Vs. Subharti K.K.B. Charitable Trust & Anr., AIR 2001 SC 2151, the Hon'ble Apex Court  explained the importance of education observing as under:-

"It is equality true that unless there are proper educational facilities in the society, it would be difficult to meet with the requirements of younger generation who have  keen desire to acquire knowledge and education to compete in the global market........ Since ages our culture and civilization have recognized that education is one of the pious obligation of the Society............. It is for us to preserve that rich heritage of our culture of transcending the education continuously unpolluted."

The Court further observed that education is not a consumer service nor the educational institution can be equated with shops, therefore, "there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned."

Similarly, in Rohit Singhal & Ors. Vs. Principal, Jawahar N. Vidyalaya & Ors., (2003) 1 SCC 687, the Hon'ble Supreme Court expressed its great concern regarding the children education observing as under:-

"Children are not only the future citizens but also the future of the earth. Elders in general, and parents and teachers in particular, owe a responsibility for taking care of the well-being and welfare of the children. The world shall be a better or worse place to live according to how we treat the children today. Education is an investment made by the nation in its children for harvesting a future crop of responsible adults productive of a well functioning Society. However, children are vulnerable. They need to be valued, nurtured, caressed and protected."

Thus, in view of the above, it can be summerised that education is the subject which should be given first preference over other issues. More so, the cremation ground may be far away from the residential area of the village and as the construction of the school has already started, there is no occasion for us to interfere with the same. We are not inclined to interfere in the construction of the school building even if there is violation of any statutory provision, though, our attention has not been drawn as which rule stood violated. Writ is a discretionary relief and we are of the view that the case does not represent special features warranting interference in writ jurisdiction. The writ petition in that regard is dismissed.

However, if the petitioner has any grievance that the piece of land meant for cremation purposes would be encroached if the school building is constructed, he may make a representation before the District Collector, Mathura and on said representation being made by the petitioner, the District Magistrate after being satisfied, may earmark certain land for the said purposes.

With these observations, the petition stands disposed of finally.




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