1 W.P. No.1343 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.1343 Of 2011 1) Santosh Ganpatrao Nagargoje, Age 34 years, Occupation : agriculture. 2) Madhav Manohar Gitte, Age 32 years, Occupation : Service. Both residents of Narwatwadi, Taluka Renapur, District Latur. .. Petitioners. Versus 1) The State of Maharashtra Through Secretary, Education Department, Mantralaya, Mumbai. 2) The Education Officer (Primary) Zilla Parishad, Latur. .. Respondents. -------- Shri. Vivek V. Bhavthankar, Advocate for petitioners. Shri. V.D. Godbharle, Assistant Government Pleader, for respondent No. 1. Shri. N.D. Sonwane, Advocate, instructed by Shri. V.D. Hon, Advocate, for respondent No.2. -------- CORAM: D.B. BHOSALE & S.B. DESHMUKH, JJ. DATE: 9th AUGUST 2011 2 W.P. No.1343 of 2011 ORAL JUDGMENT (Per S.B. Deshmukh, J.) : 1) We have heard learned counsel Mr. Bhavthankar, for the petitioners, Mr. V.D. Godbharle, learned Assistant Government Pleader for respondent No. 1 and Advocate Mr. N.D. Sonwane, instructed by Advocate Mr. V.D. Hon, appearing for respondent No.2. 2) Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3) The petitioners have made following prayers in the writ petition. "(A) A writ of certiorari or any other appropriate writ or order of like nature may kindly be issued quashing the order dt 6/10/2010 of recovery against petitioners issued by resp.no.2 Education officer Pri. Zilla Parishad, Latur Exh. 'P'. (C) The recovery proceedings initiated by Education Officer Pri Z.P. Latur against both petitioners on the ground that they have illegally demolished school building of Zilla Parishad school at village Narwatwadi, Tq. Renapur, dist. Latur and resp.no.2 may kindly be directed to refund the amount already recovered by him under the said scheme." 3 W.P. No.1343 of 2011 4) Petitioner No.1 is the Sarpanch of village Narwatwadi, Taluka Renapur, District Latur and petitioner No.2 is the Head Master of Zilla Parishad Primary School of village Narwatwadi. There is a Village Education Committee at Narwatwadi, constituted under the "Sarva Shiksha Abhiyan Scheme". Petitioner No.1, at the relevant time, was the Chairman and petitioner No.2 was the Secretary of the said Village Education Committee. The school building at village Narwatwadi, according to the petitioners, was old and in dilapidated condition. There was correspondence amongst the petitioners and respondent No.2 regarding dilapidated condition of the school building and requirement of grant for maintenance, construction, reconstruction of the school building under the scheme. It is contended on behalf of the petitioners, that on August 11, 2008, petitioner No.2 addressed a communication to the Block Education Officer, Panchayat Samiti, informing that out of three rooms of the school building, one room is not in use. Two other rooms are not in good condition. The entire school building consisting of three rooms, according to petitioner No.2, was likely to be 4 W.P. No.1343 of 2011 collapsed. It was also pointed out that there was/is no other alternative premises available for holding the classes of the school. The Block Education Officer visited the school building for inspection. He found the condition of the school building in deteriorating position. 5) According to the contentions of the petitioners, the bad condition of the school building was a threat to lives of the students taking education in the school. On requests of the petitioners, budget for construction of one room was granted. Two other rooms were collapsed as they were adjacent to each other. One room could be constructed within the budget amount granted by the respondents. The villagers and the parents of the students, according to the petitioners, demolished two rooms which were in dilapidated condition causing threat to lives of the students at any time. It is also alleged that this demolition by the villagers took place on the day when petitioner No.2-Head Master was on leave. On this background, on January 8, 2010 respondent No.2 issued a show cause notice to the petitioners. The petitioners have replied the show cause notice pointing out the fact 5 W.P. No.1343 of 2011 situation. Respondent No.2-Education Officer sought report through subordinate officers about the ground reality. The report submitted by the subordinate officers of respondent No.2, according to the petitioners, substantiated the contentions of the petitioners. The said report was prepared and submitted by the Kendra Pramukh. Respondent No.2 started recovery proceedings against the petitioners by issuing communication impugned in this writ petition dated 6th of October 2010. 6) We have seen the report of petitioner No.2 - Head Master submitted to the Block Education Officer dated 11th of August 2008. It reveals from this reprot that Zilla Parishad Primary School Narwatwadi, Kendra Pangaon consists of three rooms. Out of these three rooms one room is not in use. Walls, doors and windows are in dilapidated condition. There is no flooring also. Ceiling of this room is consisting of tin sheets. There is leakage in the room. In substance this room is not in use. Remaining two rooms are also not in proper condition. There is leakage of slab of these two rooms also. Walls of these rooms are not in proper condition. On account of leakage 6 W.P. No.1343 of 2011 the walls have become weak. The villagers and the parents have apprehended that said building / these rooms may collapse at any point of time. Despite this dangerous condition of these two rooms, since there was no alternative premises available, petitioner No.2 was required to hold classes of the school in these two rooms. Petitioner No.2 also has addressed a communication thereafter on September 21, 2006 to the Block Education Officer, Renapur. In this communication also earlier report has been reiterated. However, in absence of alternate arrangement, petitioner No.2 is required to use these rooms for the purpose of running the school. This communication shows acknowledgment by the Block Education Officer. 7) We have also considered Annexure "C" - report of the Education Extension Officer, Renapur dated 2nd of July 2008. It appears that, on 2nd of July 2008 at 11.15 a.m. inspection was carried by visiting the school premises by the Education Extension Officer. He found that Mr. Gitte. M.M. Head master - petitioner No.2 was on leave. Other teacher Smt. Mehtre C.G. was present 7 W.P. No.1343 of 2011 imparting education to the 1st to 4th standards. The inspecting party found 100% attendance of the students. He also found that, as per annual plan, education was being imparted and books were also distributed to the students. Midday meals was being served to the students. Pertaining to the school building the inspecting party found that the school consists of three rooms. One room was demolished. Two rooms, according to the inspecting party, were dangerous. The inspecting party also stressed in the report that there was no toilet facility available. Even drinking water was also not available to the students. On inspection of the proceedings book he found that on 15th of July 2005 at 10.00 a.m. Village Education Committee meeting had taken place and two resolutions were passed. He has recorded the substance of those resolutions in this report. He found that, the proceedings book was signed by the President-Chairman, four members and the Secretary of the Committee. Annexure "D" to the petition is a communication addressed to petitioner No.2 by the Project Engineer and the Block Education Officer, Panchayat Samiti, Renapur. This communication is dated 21st of July 2009. Petitioner No.2 8 W.P. No.1343 of 2011 was informed that the school building is old. And on account of heavy rains or natural calamity the building is likely to be collapsed causing danger to the lives of the students. Petitioner No.2, therefore, was informed not to use the two rooms of that school building for holding the classes of the school. Annexure "F' letter dated 8th January 2010 addressed to petitioner No.2 by the Block Education Officer is also pointed out to us. It was informed that the school building was constructed in the year 1993-94 from the development fund of the Zilla Parishad. According to the Block Education Officer, the rooms were demolished without obtaining permission from the superior officers and unauthorisedly. Petitioner No.2 was called upon to tender explanation. 8) Our attention was also invited to the communication dated 8th January 2010, Annexed "G" to the petition. This notice was replied by petitioner No.2 copy of which at Annexure "H" is on record. It is contended on behalf of the petitioners that the Village Education Committee had passed resolution seeking sanction from the superior officers for demolition of the 9 W.P. No.1343 of 2011 dilapidated rooms and reconstruction thereof. Despite this fact, according to the petitioners, during the period from 24th December 2009 to 26th December 2009 when petitioner No.2 - Head Master was on leave and there were holidays for the school for three days i.e. 25th, 27th and 28th December 2009, the villagers, parents, Chairman and other members of the Education Committee have demolished the dangerous rooms. According to petitioner No.2, when he resumed the school he found that the rooms have been unauthorizedly demolished. He was to inform / report the unauthorized demolition to the Block Education Officer. However, petitioner No.1 Chairman informed that he had already informed / reported the demolition. This explanation tendered by petitioner No.2 is countersigned by many villagers. The report of the Kendra Pramukh, Central Primary Girls School Pangaon, Annexure "K" is dated 18th of January 2010. On inspection which he carried out on 12th of January 2010 at 5.00 p.m. he found that old building was demolished. During the year 2008 - 2009 one room was reconstructed, two rooms according to the information received by him from the villagers, were constructed somewhere in the year 10 W.P. No.1343 of 2011 1985-1986. Wall from the southern side of one of the rooms was totally collapsed. There was leakage from the slab and walls of the rooms were also wet. He has further reported that whenever he had occasion to visit the school he found the same dilapidated condition. 9) It is contended on behalf of the petitioners that they are not responsible and liable for the demolition. Petitioner No.2 was on leave during the period of alleged demolition of the school building. His contention of being on leave is supported by the reports on record. The reports which are placed on record do show that the school was being run properly. All the students from 1st to 4th Standards were required to use only two rooms which were also in dilapidated condition. There is no material brought on record to show that the petitioners are liable or responsible for tortuous act of alleged demolition of the school building. In the absence of such material the order of recovery issued against the petitioners, impugned in this writ petition, in our opinion, is not sustainable. Indisputedly it is not a case of alleged misappropriation by the petitioners. Demolition of the 11 W.P. No.1343 of 2011 school building also cannot be attributed to the petitioners. From the impugned communication dated 6th of October 2010 it appears that an amount of Rs.23,547/- has been deposited through DD No.67082 dated 20th of April 2010 by the petitioners. 10) In the light of the view which we are taking in this petition, in our opinion, the order impugned needs to be quashed and set side. In this view of the matter we quash and set aside the impugned communication dated 6th October 2010. We make it clear that the recovery of the amount of Rs.73,589/- from the petitioners is quashed and set aside. Rule is made absolute in above terms. Sd/- Sd/- (S.B. DESHMUKH, J.) (D.B. BHOSALE, J.) rsl