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Monday, January 5, 2015

SPECIAL LEAVE PETITION (C) NO…28195-96 OF 2014 (CC NO.1707 OF 2014) RAUNAQ EDUCATION FOUNDATION .... PETITIONER VERSUS STATE OF HARYANA & ORS. ..... RESPONDENTS

      REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                SPECIAL LEAVE PETITION (C) NO. 28189 OF 2014
                            (CC NO.2940 OF 2014)

                                    WITH

               SPECIAL LEAVE PETITION (C) NO…28195-96  OF 2014
                            (CC NO.1707 OF 2014)




RAUNAQ EDUCATION FOUNDATION       .... PETITIONER

VERSUS

STATE OF HARYANA & ORS.                     ..... RESPONDENTS


                                  O R D E R


ADARSH KUMAR GOEL, J.

1.    Delay condoned.  Heard on merits.
2.    These petitions have been preferred against  the  Judgment  and  Order
dated 27th September, 2013 passed in LPA No.1687 of 2013,  Order dated  16th
September, 2013  passed  in  LPA  No.1618  of  2013  and  Order  dated  16th
December, 2013 passed in RA LP No.133 of 2013 in LPA No.1618 of 2013 by  the
High Court of Punjab and Haryana at Chandigarh, upholding the order  of  the
learned  Single  Judge,  declining  to  interfere  with  the  Order  of  the
Government of Haryana dated
18th September, 1998, resuming land  measuring  76  acres  5  kanals  and  5
marlas, except land measuring 7 acres left to be retained by the  petitioner
foundation.
3.    The case of the petitioner is that it gave a proposal  on  1st  April,
1972 to start a educational complex for the benefit of the residents of  the
State of Haryana.   Accordingly, the State of Haryana released
76 acres of land from the Forest Department and acquired the same under  the
Land Acquisition Act, 1894 vide notifications dated
15th May, 1972 and 28th August, 1972 under Sections 4  and  6  respectively.
Award for compensation was given on 21st  February,  1973.   Possession  was
delivered to the  petitioner  on  24th  January,  1974  subject  to  certain
conditions  including  the  requirement  to  make  construction  within  the
specific time.  Since the land was not utilized as  expected,  in  terms  of
agreement dated 18th February, 1988 under which the land was  given  to  the
petitioner subject to  certain  conditions,  the  Village  Panchayat  sought
return of the land by passing a resolution dated 20th  October,  1989.    On
that basis, after due enquiry, resumption Order dated 18th  September,  1998
came to be  finally  passed  after  various  proceedings  holding  that  the
petitioner failed to comply with the conditions subject to  which  land  was
given to it.   It was held that the petitioner failed to  utilize  the  land
for the purpose for which it was given, except a part of it.
4.    The petitioner called in question the said  order  by  filing  a  writ
petition.  Learned single Judge, after due consideration, did not  find  any
merit in the contentions  raised  on  behalf  of  the  petitioner.   It  was
observed :
“It is appropriate to notice that actual  running  of  the  school  was  the
primary consideration of the State of Haryana in allotting 76 acres of  land
to the foundation.  The petitioners  have  not  produced  any  documents  in
regard to admission of children, the  year  in  which  the  admissions  were
started, the classes in which  the  admissions  were  made,  the  number  of
children admitted in a particular class,  the  number  of  faculty  members,
their  date  of  appointment,  qualifications  etc.  and   above   all   the
performance  of  the  school  children  in  academics   or   extracurricular
activities.  It is also doubtful if the school had been affiliated with  any
educational board.  I have no hesitation to hold that the  petitioners  have
intentionally  withheld  this  information  as  revelation   thereof   would
completely shake their tall claim to start an educational institutions,  one
of the best in the area to impart quality education.

Admittedly, the petitioners did  not  start  construction  of  stated  third
phase by the time, they  filed  the  petition.   The  joint  inspection  was
conducted in October/November 1997.  A Local Commissioner was  appointed  by
this  Court  in  August  1999.   Shri  Sanjeev  Sharma,  Local  Commissioner
inspected the site in the presence of the petitioners and  made  a  detailed
report in compliance with order dated 16.08.1999.  The petitioners have  not
challenged  the  correctness  of  this  report  with  regard  to  extent  of
construction.  The joint  inspection,  in  no  circumstances,  could  reveal
something  more  than  what  is  contained  in  the  report  of  the   Local
Commissioner.  Under these circumstances, the supply or non-supply of  joint
inspection  report  also  loses  its  significance.   In  other  words,   no
prejudice has been caused to the petitioners for want  of  supply  of  joint
inspection report.

The petitioners have tried to justify their failure to complete the  project
for want of adequate funds due to financial difficulties  of  their  funding
sources.  The possession  of  land  was  delivered  in  January  1974.   The
foundation should have  shown  keenness  to  complete  the  project  at  the
earliest.  It remained silent for 12 years.  Thereafter  also,  it  did  not
complete the project within  three  years  of  entering  into  agreement  in
February 1988.  The plea of inadequacy of funds more  than  25  years  after
their approaching the State of Haryana for allotment  of  land  cannot  hold
ground.  Rather the foundation should have,  on  its  own,  surrendered  the
land to the State of Haryana if it was not able to complete the project  due
to inadequacy of funds.
……………
The State of Haryana acquired more than 76 acres of land  belonging  to  the
Gram  Panchayat,  Village  Bari.   The  Gram  Panchayat’s  land  necessarily
denotes land meant for common purposes of the village.  The  people  of  the
village have been deprived of the benefits of this  common  land  due  to  a
false promise made by the foundation.  As the foundation utterly  failed  to
achieve the object for which the Gram Panchayat was deprived of land of  its
ownership, no fault can be found in the decision of  the  State  Government.
Rather, the officer who passed the impugned order has taken a  very  liberal
and reasonable view of the matter and left 7 acres of land at  the  disposal
of foundation, though the entire land could be  resumed.   In  view  of  the
above, the  contention  of  the  petitioners  that  the  impugned  order  is
vitiated for want of supply of documents,  joint  inspection  report  or  an
opportunity of personal hearing  is  devoid  of  merit  and  is  accordingly
rejected.  Similarly, the other plea that  resumption  order  could  not  be
passed in the circumstances of the present case is untenable.

Before parting with this order, it is appropriate to mention that  the  land
resumed by the impugned order has been re-vested in the Gram  Panchayat.   A
mutation has been sanctioned in favour of  the  Gram  Panchayat,  which  has
been challenged in CWP No.13676 of 2007.  The land  after  resumption  would
now be available for common benefit of the villagers.

As an upshot of the discussion made hereinabove, the  foundation  is  guilty
of using the land for personal gain,  failed  to  complete  construction  in
compliance with terms and conditions of the agreement even uptill  1999  and
further defaulted in proving true to its promise/representation made to  the
State as back as in the year 1972, rather deprived  the  villagers  of  huge
land meant for their common benefits, therefore, in my  considered  opinion,
allowing the prayer of the petitioners would amount to  putting  premium  on
their failures.  The petitioners, therefore,  cannot  be  held  entitled  to
relief in exercise of jurisdiction under Article 226 of the Constitution  of
India.”

5.    The Division Bench after thorough consideration reiterated  the  above
findings as follows :
      “19.  Thus, from the reading of the said  affidavit  also,  which  had
been filed on 26.08.2012, nothing has been brought on record  to  show  that
any  such  utilization  has  been  done  regarding  the  setting  up  of  an
educational complex.  The  affidavit  only  pertains  to  the  efforts  made
regarding  the  administration  of  the  school  and  does  not  talk  about
utilization of the huge chunk of land for  any  further  expansion  for  the
purpose of setting  of an educational complex.   The  site  plan  which  has
been attached alongwith the said affidavit goes on to show that there  is  a
proposed boys and girls hostel to be set up, a proposed Apollo Institute  of
Management and Studies.   Thus,  the  submission  of  the  counsel  for  the
appellants that in pursuance of the interim  order  passed,  the  Foundation
had complied with the terms of the allotment, is  also  without  any  basis.
The observations of the Learned Single Judge that the objects for which  the
land was acquired were not met and the Gram Panchayat was  deprived  of  its
ownership due to the false  promise  made  by  the  Foundation  for  brining
education  to  the  residents  of  the  State  of  Haryana,  are  absolutely
justified.

20.   Another factor which is to be taken  into  consideration  is  that  in
pursuance of the resumption, the Gram Panchayat had also  submitted  a  bank
draft of 2,76,548/- vide letter dated 16.10.1998, regarding the cost of  the
land which had been resumed and in pursuance of  which,  mutation  had  also
been entered in favour of the Gram Panchayat.  As per the written  statement
of respondent No.5 – Gram Panchayat, the said amount had  been  accepted  by
the appellants and  they  had  taken  possession.   No  replication  to  the
written statement, filed by respondent No.5 – Gram Panchayat, was filed  and
thus, the Trust has also retained the said amount for all this period.

21.   Accordingly, there is no infirmity or illegality in the order  of  the
Learned  Single  Judge,  upholding  the  resumption,  which  would   warrant
interference in appeal.  The present appeal is,  accordingly,  dismissed  in
limine.”

6.    When the matter came up before this Court on 24th February, 2014,  the
following order was passed :
“In the meantime, the petitioner may file  additional  affidavit  indicating
how much area of the land is still an open land and what are the  nature  of
construction which have been done by the petitioner after allotment  of  the
land.”

      The affidavit filed in pursuance of the above order was not  found  to
be satisfactory and on 11th April, 2014, the following order was passed :
“Counsel for the petitioner is directed to file a better affidavit within  a
period of one week explaining as to how the area which has been alleged  not
have been used by the petitioner for the school purposes have been  utilized
and also whether the construction was undertaken  after  the  interim  order
was passed by the High Court.”

7.    We have heard  Shri  Kapil  Sibal,  learned  senior  counsel  for  the
petitioner.
8.    He submitted that the petitioner is ready  and  willing  to  construct
and run a school for 500 poor and under privileged children of the  area  at
its cost, within the  time  frame  as  may  be  laid  down  and  subject  to
appropriate conditions.  The petitioner will bear the education  cost,  fees
etc. of such poor and under privileged children for all times to come.
9.    We have  bestowed  our  serious  consideration  to  the  proposal  put
forward.  Though any proposal for advancement of poor and  under  privileged
children is welcome but the background of the  matter  noticed  above  shows
the track record of the petitioner which renders the  proposal  suspect  and
in any case land allowed to be  retained  being  enough  if  the  petitioner
wishes to carry out the proposal  now  given,  no  ground  is  made  out  to
interfere with the impugned order.  The petitioner took prime  land  of  the
State and failed to comply  with  the  conditions  on  which  the  land  was
allotted, for a long time.  Accordingly, the  land  stands  resumed  by  the
State of Haryana and as per order of the High Court,  the  land  stands  re-
vested in the Gram Panchayat.  Mutation has also been sanctioned  in  favour
of the Gram Panchayat and the land is to be used  for  the  benefit  of  the
villagers.
10.   As already noted, the High Court has duly examined all aspects of  the
matter.  On orders of the High Court,  an  Advocate  Commissioner  inspected
the site in the presence of representative of the petitioner,  who  reported
that in the area marked “X” no construction  was  made,  as  claimed.   This
report was not even challenged by the petitioner.  Having taken  huge  track
of prime public land in the name of advancing the  cause  of  education,  it
failed to act as per the agreement and put  forward  the  specious  plea  of
lack of funds.  The people of the village were deprived of  the  benefit  of
the common land due to false promise of the petitioner.  Still, 7  acres  of
land has been allowed to be retained by the petitioner.  If  the  petitioner
wants to serve poor and under privileged children as  now  proposed,  it  is
free to do so on this part of the said land.
11.   We also find that the Division Bench considered  the  contention  that
construction was raised during pendency of proceedings.   It was found  that
interim order dated 14th May, 2001 permitting construction  was  subject  to
result  of  the  writ  petition.   Moreover,  even  thereafter   no   proper
utilization of land was shown to have been  made,  though  the  brochure  of
school painted a rosy picture.   Thus, the track record  of  the  petitioner
is to take private benefit from land of  the  village,  taken  over  by  the
State at petitioner’s instance to advance education – a public cause.   Such
individual and private benefit at the cost of  public  cannot  be  permitted
and is contrary to constitutional values to be  followed  by  the  State  of
advancing welfare of the society.  A finding of fact has  been  recorded  by
the competent authority about the failure of the  petitioner  to  carry  out
the terms and conditions of allotment which finding has  been  duly  upheld,
concurrently by the learned Single Judge  and  the  Division  Bench.   Thus,
public interest will not in any manner be advanced by interference  by  this
Court on a mere offer to serve  poor  children  when  track  record  of  the
petitioner has been to advance  individual  interest  at  the  cost  of  the
village.
12.   We have not been able to discern as to why forest land  was  acquired,
if such land was already vested in the  Government.   There  is  nothing  to
show that the requisite permission was taken for converting forest land  for
non forest purposes.   In B L Wadhera vs.  Union  of  India[1],  this  Court
considered the validity  of  gifting  of  the  village  common  land  for  a
hospital to Shri Chandra Shekhar, former Prime Minister. Quashing  the  said
decision, this Court observed :
“41. Once the land was found to have been used for the purposes  of  forest,
the provisions of the Indian Forest Act  and  the  Forest  Conservation  Act
would be attracted, putting restrictions on dereservation of the  forest  or
use of the land for non-forest purposes. The Forest Conservation  Act,  1980
has  been  enacted  with  the  object  of  preventing   deforestation.   The
provisions of the aforesaid Act are applicable to all forests.  It  is  true
that “forest” has not been defined under the Act  but  this  Court  in  T.N.
Godavarman Thirumulkpad v. Union of India1 has held that the  word  “forest”
must be understood according to its dictionary meaning. It would  cover  all
statutorily recognised forest whether designated as reserved,  protected  or
otherwise for the purposes of Section 2(i) of the Forest  Conservation  Act.
The term “forest land” occurring in Section 2  will  include  not  only  the
forest as understood in the dictionary sense but also any area  regarded  as
forest  in  the  government  record  irrespective  of  the  ownership.   The
provisions of the Forest Conservation Act are applicable to all  forests  so
understood irrespective of the ownership  or  classification  thereof.  This
Court has issued certain directions and guidelines for the  preservation  of
forest and its produce in T.N. Godavarman case1 which are not shown to  have
been implemented by the respondent State.

[pic]42. Section 2 of the Forest Conservation Act  mandates  that  no  State
Government or authority shall make an order directing that any  forest  land
or any portion thereof shall cease to be reserved or any forest land or  any
portion thereof may be used for non-forest purposes or forest  land  or  any
portion thereof may be assigned by way of lease or otherwise to any  private
person or to an authority, corporation, agency  or  any  other  organisation
owned and controlled by the Government or any such land or  portion  thereof
be cleared of trees which have grown therein — without  the  prior  approval
of the Central Government.  The  gifting  of  land,  in  the  instant  case,
cannot, in any way, be termed to be for a forest  purpose.  Learned  counsel
appearing for the State of Haryana showed us a government  order  which  had
declared the area, covered by gift deeds, as forest prohibiting the  cutting
of the trees, declared as forest though for a limited period  of  25  years.
It is submitted that as the period of 25 years was not extended,  the  land,
earlier declared as forest, had ceased to be a forest land. Such a  plea  is
contradictory in terms. The State of Haryana is proved to  be  conscious  of
the fact that the land, intended to be gifted, was either  the  forest  land
or property of  the  Forest  Department  regarding  which  condition  6  was
imposed in its order granting the approval for gifting the land by the  Gram
Panchayat to the Trust. It is too late now in the  day  for  the  respondent
State to urge that as notification declaring the  land  as  forest  was  not
extended after initial period of 25 years, the same be deemed to  not  be  a
forest land or land used for the purpose of the  forest.  In  the  affidavit
filed on behalf of the respondents it is specifically stated:
“It is submitted that the State Government had only given  approval  to  the
Gram Panchayat for gifting the land.  However,  while  permitting  the  Gram
Panchayat to gift  the  land  by  way  of  abundant  precaution,  the  State
Government had imposed  the  condition  to  the  effect  that  the  land  in
question be got released from the Forest Department in accordance with  law.
The permission given by State Government did not mean at all that the  donee
or the donor was authorised in any  way  to  divert  the  user  of  land  in
question.”

The contradictory pleas taken and stands adopted  by  the  respondent  State
strengthens the argument of the petitioner that the  transaction  of  making
the gifts in favour of Respondent 7  is  actuated  by  considerations  other
than those specified under the Act and the Rules made thereunder.

43. Learned counsel, appearing for Respondent 7, has submitted that  as  the
land is being utilised for  the  purpose  of  the  Trust  and  Shri  Chandra
Shekhar is  not  taking  any  advantage  from  the  said  land,  the  action
initiated by way of public interest litigation is not sustainable. There  is
no doubt that the land has  not  been  utilised  by  Respondent  7  for  any
commercial purpose but it is equally true that the land  is  being  utilised
for purposes other than those contemplated under the Act and the Rules  made
thereunder for which the gift was approved to be made by the Gram  Panchayat
in favour of Respondent 7.  We  are  not  impressed  with  the  argument  of
Respondent 7 that the gifted land was acquired for the purposes  of  welfare
of the people and  the  [pic]upliftment  of  the  inhabitants  of  the  Gram
Panchayat. The land appears to be utilised  for  the  personal  leisure  and
pleasure of some individuals including the Chairman of  Respondent  7  which
cannot be termed to  be  used  for  the  upliftment  of  the  poor  and  the
oppressed as claimed. It  cannot  be  disputed  that  in  this  country  the
position of the rural poor  is  worst.  According  to  an  assessment  about
2/3rds of the rural population which consists of  farm  workers,  small  and
marginal farmers, poor artisans and the  unemployed  agricultural  labourers
are possessed of 15 to 20% of  the  total  available  land.  The  number  of
owners of land with less  than  0.2  hectares  is  about  29  million.  When
millions of landless agriculturists are struggling  to  get  some  land  for
feeding  their  families  and  protecting  their  lives,  Respondent  7  has
manoeuvred to usurp about 600 acres of land, apparently for not  any  public
purpose. It is unimaginable  that  for  the  construction  of  a  three-room
dispensary, Respondent 7 would require and the Gram Panchayat  as  also  the
State of Haryana would oblige by conferring  State  largesse  of  about  271
kanals of land. The shocking facts of the case further  disclose  that  even
this three-room dispensary has not been built on the  land  in  controversy.
For a reasonable person, as Respondent 7 is presumed to  be,  the  aforesaid
land  should  have  been  returned  to  the  Gram  Panchayat  after   public
controversy had  risen  culminating  in  the  filing  of  the  present  writ
petition in public interest. This Court cannot  remain  a  silent  spectator
where people’s property is  being  usurped  for  the  personal  leisure  and
pleasure of  some  individuals  under  the  self-created  legal,  protective
umbrella and name of a trust. A politician of the stature  of  Shri  Chandra
Shekhar  cannot  claim  to  minimise  the  sufferings  of  the   people   by
constituting the Trust and utilising the lands taken  by  it  allegedly  for
the upliftment of the poor and the oppressed. The purpose of the  respondent
Trust may be laudable but under the cloak of those purposes the property  of
the people cannot be permitted to be utilised for the aforesaid  objectives,
particularly when the  law  mandates  the  utilisation  of  the  transferred
property in a specified manner and for the benefit  of  the  inhabitants  of
the area, the poor and oppressed  and  the  Scheduled  Castes  and  Backward
Classes. We are not impressed with any of the  pleas  raised  on  behalf  of
Respondent 7 that the land was acquired bona fide for the proclaimed  object
of upliftment of the people of this country in general and of  the  area  in
particular. We fail to understand as to how the country can be  uplifted  by
personal adventures of constituting trusts and acquiring hundreds  of  acres
of lands for the purposes of  that  Trust.  It  is  nothing  except  seeking
personal glorification of the persons concerned.”

13.   We cannot lose sight of above observations in view of  the  fact  that
we are dealing with the issue of allocation of  public  land  to  a  private
entity which requires fair, transparent and non arbitrary exercise of  power
in the light of mandate of Article 14 read with Articles 39 (b) and  (c)  of
the Constitution.  Once it is found that beneficiary of such  allotment  has
abused its position to its advantage and to the disadvantage of the  public,
this Court cannot interfere with  the  fair  order  passed  by  a  competent
authority resuming the land.
14.   Thus, the proposal put forward cannot be taken at its face  value  and
cannot be the basis for interfering with the impugned orders.  The land  has
to be utilised by the competent authority in a  transparent  manner  as  per
applicable policy and law.
 The special leave petitions are dismissed.


                                                          ……..…………………………….J.
                                                         [ V. GOPALA GOWDA ]

                                                         .….………………………………..J.
NEW DELHI                       [ ADARSH KUMAR GOEL ]
October 14, 2014
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[1]     (2002) 9 SCC 108

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