A.N. Surti, J.
1. The petitioners, who are students receiving medical education and residing in Hostels, Civil Hospital compound, Ahmedabad, have filed the present petition yesterday for the following reliefs:
(1) To issue writ of mandamus or any other order or writ in the nature of mandamus restraining the respondents, their agents and servants from ordering and implementing the eviction of the students staying in the hostels attached to the Medical Colleges in the State of Gujarat.
(2) Pending the hearing and final disposal of this petition, the respondents their agents and servants be restrained by appropriate order for ordering the students staying in the hostels of the medical colleges in the State of Gujarat to evict the hostels premises,
2. To-day an application for amending the petition is given and the following further reliefs are also asked for:
(3) To direct the respondents Nos. 1 and 3 to open the Colleges forthwith by appropriate writ order or direction and quash the notice at Annexure IV.
(4) To allow the petitioners to prosecute this petition in representative capacity under Order 1, Rule 8 of the Code of Civil procedure.
3. For the disposal of the present petition, suffice it to say that she petitioners were substantially aggrieved by the impugned intended action on the part of the Government calling upon then students to evict the hostels premises which they occupy.
4. The petition was resisted by the respondents by filing three different and distinct affidavits In substance, in their affidavits-in-reply, the stand taken by the respondents is, that with a view to avoid violence or that with a view to avoid apprehended violence, the concerned authorities felt, that if the students are requested to evict the hostel premises, the said action would assist the State Government in avoiding violence and in restoring peace.
5. The Deputy Commissioner of Police has filed the affidavit-in-reply, and in substances, in para 3 of his affidavit, the Deputy Commissioner states that en January 5, 1981, Shahibaug Police Station received a com plaint from the Senior Administrative Officer in the Directorate of Medical Education and Research which office is situated at a distance of about 50 yards from the medical hostels and B.J. Medical College to the effect, that a crowd of about 150 Medical students went to the Director's office shouting slogans. In that very affidavit, it is stated that the students after reaching the office, damaged glass panes of the staff car of the Director. The students damaged the glass panes of doors and windows, broke lube-lights and furniture articles in the office and also damaged the glass panes of the staff car of the Director. Suffice it to say, that on such a complaint being received, the necessary complaint in regard to the offence of rioting was made out vide C.R. No. 4 of 1981. In the very paragraph it is also alleged that the students hijacked AMTS buses which were near the Civil Hospital complex, Ahmedabad.
6. In paragraph 5 of the affidavit-in-reply, it is also stated that about 200 medical students of the B.J. Medical College went to the Dental College situated in the very, hospital compound. Some mischievous agitators smashed glass panes of the Notice Board, tube-lights, etc. thus causing damage to the public property. Thereafter, about 150 students of that very college went to The Nathibai Municipal Medical College in Ellis Bridge shouting slogans and there also they broke glass panes of the Notice Board, tube-lights etc, causing further damage to the public property.
7. In paragraph 6 of the affidavit-in-reply, the Deputy Commissioner of Police further states, that there was some agitation in respect of reserve seats assigned to the members of the scheduled castes and scheduled tribes, and between those who belonged to non-scheduled caste and tribes.
8. In paragraph 7 of the affidavit-in-reply, it is also stated that at about 11-30 P.M. the vehicles of the Health department parked in the parking place between the P.G. Hostel and, 'B' block of the U.G. Hostel were damaged and two of the jeeps ware set on fire after sprinkling kerosene on the vehicles. On January 21, 1981 about 300 students of the B.J. Medical College took out procession and tried to hijack AMTS bus.
9. On 22nd, 23rd, 24th, 25th and 26th agitations were made, and the conflict between the two groups of students within the College campus was beginning to have its repercussions in the surrounding areas where predominantly Harijan areas as a distance of about two furlongs from the Civil Hospital by non-Harijans, and a shop was also broken and set on fire. On January 26, 1981 there were some incidents where the members of the Scheduled caste stay. On January 27, 1981 the police thought it necessary to pass orders under Section 37(3) of the Bombay Police Act. On January 28, 1981, the police had to resort to tear gas.
10. In the last paragraph of the affidavit-in-reply of the Deputy Commissioner of Police, it is stated that the situation was so tense in the College Campus, that 300 Constables had to be posted in the Civil Hospital Compound for the purpose of maintaining peace in the compound.
11. The second affidavit-in-reply is filed by the Deputy Secretary to the Government of Gujarat, Health and Family Welfare Department. In his affidavit-in-reply, he states certain details indicating for the reservation of seats for the members of the scheduled castes and scheduled tribes, a point with which I am not concerned at the moment. Suffice it to say, that on reading the affidavit-in-reply of the Deputy Secretary, it is clearly stated therein that representatives of the students Union were heard by the Minister of Health. The authorities also consulted the representatives of the Indian Medical Association and leading honorary doctors in regard to the policy as to what seats should be assigned to the Scheduled castes and scheduled tribes. I am not at ail concerned with that aspect of the matter at this moment. My immediate anxiety is to pass just and proper orders, so that violence in any event may not take place either in the Civil Hospital compound or elsewhere. I may also state, to safeguard the interest of the students, that it will he the right of the petitioners to revive the present petition by making a motion to this Court for getting the other reliefs as mentioned in the present petition after complete peace is restored, and the reasonable apprehension of fear of violence are avoided by all concerned.
12. But what is more important to note is affidavit of Dr. S.C. Kukreti, Chief Warden, B.J. Medical College Hostels, Ahmedabad-16, who is in charge of the hostels in the Civil Hospitals compound, Ahmedabad. Dr. Kukreti has stated in para 2 of his affidavit-in-reply that there are three hostel buildings for boys, and one hostel building for girls staying in the B.J. Medical College. There are about 750 students studying in the aforesaid four buildings, and in one of the buildings, there are about 130 lady students, whereas in the other building there are about 140 students belonging to scheduled castes and scheduled tribes.
13. In paragraph 3 of the affidavit-in-reply the Chief Warden of the B.J. Medical College also states that tension had been mounting up in the college premises including the Hostel premises on the issue of reservation of seats for scheduled castes and scheduled tribes students since December 31, 1980, and that in view of the mounting tension, it was in the interest of the students themselves to vacate the Hostel premises.
14. Copies of the aforesaid affidavits-in-reply were given to Mr. V.B. Patel, the learned Counsel for the petitioners-students. I also asked him to let me know whether he would require time to file affidavit-in-rejoinder denying the narration of various events set out on the aforesaid three affidavits, but Mr. Patel chose to argue the matter without filing any affidavit-in-rejoinder.
15. It was under these circumstances, that I had to decide the matter before me. I wish to make it absolutely clear, that to-day I heard the learned Counsels at the Bar only on the limited question of eviction of the students from the hostels and nothing more. Once again, I may mention that it will be open to the petitioners-students to revive the petition for the other reliefs set out in the petition, if occasion and circumstances so require.
16. Mr. Patel, the learned Counsel for the petitioners-students very strenuously urged, that in the instant case, possibly the eviction of the students from the hostels may flare up the situation, and hence, the order of eviction from the hostels should be stayed, so that the violence may not be repeated. He also strongly urged before me, that when one only peruses paragraphs 11 and onwards of the affidavit-in-reply filed by the Deputy Commissioner of Police, it will be clear that no untoward act is attributed to students, and if no untoward act could be attributed to students, on and from January 23, 1981 there was no tittle of justification on the part of the respondents to take the impugned action or decision to evict the students from the hostels. Developing his submission further on this ground, Mr. Patel also urged, that in view of the facts set out in para; 11 and onwards in the affidavit-in-reply filed by the Deputy Commissioner of Police, the impugned action suffers from the vice of arbitrariness, malice and non-application of mind. He also urged very forcibly, that the concerned authorities should have noticed that no nexus Is established between several acts alleged to have been done or committed by the students from January 5, 1981 to January 23, 1981, and that being so, it would be patently wrong for the State Government to pass the impugned order calling upon the students to evict the hostel premises.
17. When such a submission was made by Mr. Patel, I drew the attention of Mr. Patel to the three affidavits filed by the Government Officers and in substance brought to his notice, that if the concerned authorities feel that violence can be avoided by eviction of students from the hostels on the basis of the facts mentioned by the Deputy Commissioner of Police in the affidavit-in reply, can I say that the impugned action suffers from vice of arbitrariness? Can I say that the impugned action suffers from the vice of non-application of mind? I brought to the notice of Mr. Patel that the impugned action was taken by the concerned authorities to avoid violence and nothing more as stated above. As stated above I am only concerned at the moment with avoidence of violence in the Civil Hospital compound, and elsewhere in the neighbourhood, and nothing more. When tuch facts were brought to the notice of Mr. Patel, Mr. Patel also urged before me, that even intended eviction may also flare up the situation and may also result into violence.
18. In view of my aforesaid discussion, the crux for the matter for my consideration is, that there are two courses open to the State Government to avoid violence viz. (1) To evict the students from the hostels so that there may not be violence; and (2) Not to evict the students, as the very eviction of the students may flare up the situation and there may be violence as submitted by Mr. Patel. When these two courses are open to the State Government, can I, while exercising the powers under Article 226 of the Constitution, with all constitutional limitations of which I am very much conscious, compel the State Government to adopt or resort to one of the two courses? Can I say to the State that the State shall not follow the course which the State has so chosen? I am afraid that when I am exercising my powers under Article 226 of the Constitution, it is not open to me to decide the matter as an Appellate Authority sitting over the decision taken by the State Government in such matters. Had I been functioning as an appellate Authority, possibly my decision might have been different; but when I am functioning under Article 226 of the Constitution, I must respect the constitutional provisions, and I cannot tell the respondents-authorities that you shall not choose a particular course for the purpose of avoiding violence, and that the State must choose the other way suggested by Mr. Patel. My constitutional jurisdiction is very limited, and I am bound in law to respect the constitutional limitations when I am deciding the matter under Article 226 of the Constitution.
19. In view of what has been stated above, I am convinced beyond any doubt that this is not a case where I can interfere with the impugned action or the order passed by the Government. I would have certainly interfered with the same if I had come to the conclusion, that the orders made by the Government are capricious, malicious or have been made by the State as a result of non-application of mind. Can I say with tittle of confidence that the impugned orders suffer from vice of arbitrariness particularly when the Deputy Commissioner of Police has given a chain of events from January 5, 1981 and onwards, which resulted into serious violence. Can I say that the impugned order suffers from the vice of malice? Can I say that the order is capricious, in view of the aforesaid glaring facts? To take such a view would amount to nothing else, but patent perversity of judgment and flagrant violation of Article 226 of the Constitution, I have no jurisdiction or Authority of law to function as a Court of Appeal, and to set aside the impugned action on the reconsideration of all the objective facts considered by the respondents as stated in their three affidavits-in-reply.
20. As a result of the aforesaid discussion, the petition only to the aforesaid limited extent fails, and the notice issued in this behalf stands discharged. As the interest of the students is at stake.
21. I have granted specific permission to the learned Counsel for the petitioners to revive the petition for other reliefs if occasion and circumstances so require.
22. Mr. Tanna, with his usual tanacity, appearing as an intervener, did support the petitioners, but to no useful purpose. As a matter of fact my whole approach at the moment was to consider the question of violence and that being so, I am sorry to say that I did not hear Mr. Tanna for the other reliefs set out in the petition.
23 The petition to the aforesaid extent is dismissed, but having regard to the fact that Mr. Patel was championing the cause of the medical students the notice is discharged to the aforesaid limited extent with no order as to costs. This order is only confined to the students residing in the hostels in Ahmedabad only, and this order will not apply to the students residing in hostels at Jamnagar, Baroda and Surat.