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…28195-28196 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
-----------------------
[1]
(2002) 9 SCC 108
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…28195-28196 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
-----------------------
[1]
(2002) 9 SCC 108
