Jammu & Kashmir High Court
Sher-I-Kashmir National Medical ... vs State Of J And K And Ors. on 26 May, 2004
JUDGMENT V.K. Jhanji, J.
1. This petition has been filed by the Sher-i-Kashmir National Medical Institute Trust (hereinafter referred to as the petitioner-Trust), a public charitable trust, created vide registered deed on 19th May, 1973, through its Vice Chairman, Dr. Muhammad Ali Matoo, challenging Government Order No.820-HME of 2003 dated 22nd July, 2003 issued pursuant to Cabinet Decision No.119/Cir dated 22nd July, 2003, under the signatures of Secretary to Government, Health and Medical Education Department, Jammu and Kashmir. By virtue of the aforesaid order, the Government has accorded sanction to the:
1) revocation of Government Order No.214-ME of 1976 dated 27.08.1976 and Government order No. Rev (NDK) 90 of 1978 dated 19.04.1978 and taking over the possession of the property and land etc. referred to in the said Government orders;
2) taking over the possession and management of Kashmir Nursing Home, Gupkar Road, Srinagar;
3) taking over the full management of the affairs of Sher-i-Kashmir Institute of Medical Sciences, Soura, and any other institution / institutions affiliated with it;
4) taking over the legal possession of the property situated at Kothibagh, Srinagar, (Dr. Ali Jan Shopping Complex).
5) referring to the Vigilance Organisation for investigating the matter of transfer of the land situated at Kothibagh by the trustees / management of Sher-i-Kashmir National Medical Institute Trust to the parties who have constructed houses and shops thereon and are using it for commercial purpose in breach of the purpose for which it was handed over to the trustees.
2. It may be relevant to mention here that this writ petition, in usual course, came up for hearing on admission before a learned Single Judge of this Court on Ist September, 2003. The learned Single Judge found that ground of mala fides taken in the petition against respondents 5, 6, 7 and 8 were not supported by any particulars or material, therefore, issuance of notice to them was deferred. Notice was issued to only respondents 1 to 4 and 9 to 11. Having regard to the subject and nature of the controversy, the public interest, patient care etc. involved, and the relief prayed for in the writ petition, the learned Single Judge referred the matter to a larger Bench. It is thus that the writ petition came up before us the Division Bench for hearing on 14th October, 2003. The learned counsel on both sides consented to the hearing of the case for final disposal. We heard the matter consecutively on two days on 14th and 15th October, 2003. During the course of arguments, Mr. M.A. Goni, learned counsel for the petitioner, complained of inaccessibility to the records of the trust, its office being located in one of the buildings taken over by the Government, and the petitioner's consequent inability, for want of record, to project effectively and adequately its case in the writ petition before the Court. He strenuously stressed that the impugned action was mala fide, aimed at tarnishing the image of Late Sheikh Muhammad Abdullah and his family as the present Government wanted to settle scores with the said family and second that the petitioner-Trust did not have access to the records of the Trust as a result it was unable to render proper assistance to the Court on facts of the case. He also submitted at the Bar that Dr. Farooq Abdullah, Mr. Tariq Abdullah, Sheikh Nazir Ahmad and some of their relatives and associates had donated their own landed properties situated at Soura to the Trust records whereof were lying in the Trust Office. The learned Advocate General, Mr. A. H. Naik, while refuting these statements, stated at the Bar that the Government did not want to open the Pandora box containing the evil designs, mischief and wide spectrum of illegalities behind Government order dated 19th April, 1978, resorted to the detriment of the public property, lest the feelings of any one get, in any way, hurt. He submitted that, since the petitioner was bent upon vigorously giving a different dimension to the action, not even remotely intended by the Government, he be permitted to bring on record the facts and documents demonstrating the vicious designs behind the Government order dated 19th April, 1978. He sought permission to place on record additional affidavit along with documents. Necessary orders in this regard were passed on 15th October, 2003 directing the concerned authorities to open the office of the Trust and allow access to the Dy. Registrar Judicial of this Court at Srinagar along with two representatives of the petitioner-Trust to the records so as to enable them to locate the record and documents and to have copies thereof needed by them for purposes of effectively setting up of their case before this Court. The learned Advocate General was granted permission to file additional affidavit and, consequently, the petitioner was also granted liberty to file rejoinder thereto on the basis of record that they might obtain from the Trust office. That task was accomplished by the Dy. Registrar Judicial. Additional Affidavit and reply thereto have also come on record.
3. I proceed to give a resume of the facts that emerge from the pleadings of the parties.
4. The Housing Department of Government of Jammu and Kashmir had acquired land measuring about 1000 Kanals situated at village Zoonimar in District Srinagar for purpose of construction of a Housing Colony. Village Zoonimar and Soura are two localities abreast each other. The money required for the purpose was obtained as loan from Life Insurance Corporation of India against the mortgage of the aforesaid land with it. Syed Mir Qasim was the Chief Minister of the State at the relevant time. The Government of Jammu and Kashmir seems to have been working on a plan of building a 500-bedded Hospital at Soura, Srinagar. In a meeting held on 21st November, 1972, some friends and admirers of late Sheikh Muhammad Abdullah, on the occasion of his 68th Birthday, decided to set up a public charitable trust for the establishment of a Medical Institute at Srinagar. In December, 1972, late Sheikh Muhammad Abdullah approached the Chief Minister of the State, informing him that, on his birthday, some of his friends and admirers had presented to him a sum of Rs.1.5 lakhs for instituting a benevolent trust and that the consensus was on building a Hospital. He sought co-operation of the State Government and requested for leasing out 230 Kanals and 13 Marlas of land situated to the West of Soura, acquired by the Government and the Government dispensary that existed at Soura, adjacent to the land in question, as also contribution towards construction and maintenance of the Hospital. The Trust was eventually created on 19th May, 1973. Late Sheikh Muhammad Abdullah was the life-time Chairman of the Trust and Syed Mir Qasim, the then Chief Minister of the State, was one of the ten trustees thereof.
5. It appears that, consequent to the aforesaid request made by late Sheikh Muhammad Abdullah to the Chief Minister, Vide Government order No.872-HD of 1973 dated 14.10.1973, subject to the execution of a lease deed with the Government of Jammu and Kashmir, sanction was accorded to leasing out to the Trust of 292 Kanals and 8 Marlas of land comprising Khasra Nos.415, 423, 424, 422, 5381/421, 5582/421, 425, 426, 429, 432, 430, 431, 433, 434, 416, 417, 418, 419, 437, 438, 411, 412, 413, 414, 388, 5379/390, 5380/390, 391, 392, 389, 394, 410, 405, 407, 408, 409/1, 409/2, 406, 398, 399 situated at Zoonimar, Srinagar, for a period of 40 years at a consolidated rent of Rs.101/- per annum. Earlier to that, vide Government order No.627-HD/G of 1973 dated 4th September, 1973, sanction was accorded to transfer of Government Dispensary situated at Soura comprising main Dispensary building, its Kitchen Block, Chowkidar's shed alongwith land underneath and appurtenant thereto, to the Trust. However, no lease deed was executed between the parties in this regard. Thereafter, Vide Government order No.232-MD/G of 1974 dated 23rd May, 1974, sanction was accorded to the allotment of another government property, namely, Drug Research Laboratory situating a Moulana Azad Road, Kothibagh, Srinagar, to the petitioner-Trust on rent basis. It was stated in the order that the terms of rent would be decided separately. Meanwhile, in the month of February, 1975, late Sheikh Muhammad Abdullah took over as Chief Minister of Jammu and Kashmir State. Immediately after late Sheikh Muhammad Abdullah, who also happened to be the Chairman of the Trust, took over as Chief Minister of the State, Shri R. K. Sawhney, Secretary of the petitioner-Trust addressed a communication under No.723 dated 22nd May, 1975 requesting him to amend Government Order No.872-HD of 1973 dated 14th October, 1973 to make absolute grant of 292 Kanals and 8 Marlas of the land at Zoonimar, Srinagar, in favour of the Trust. The contemporaneous record reveals that, the matter relating to the absolute transfer of 292.8 Kanals of land situated at Soura; the Government Dispensary at Soura and the Drug Research Laboratory situated at Moulana Azad Road, Kothibagh, Srinagar, to the Trust was processed at various levels, including Health Department, and sent to the Law Department for its opinion. The Law Department opined as under:
The legal position in respect of transfer of immovable property, including the land to non-permanent residents (including non-juristic persons) is very tight and there is no exception about it provided for in any law for the time being in force. In these circumstances, in case the Government decides to transfer the immovable property, including the land in the manner as suggested by the Trust to the Sher-i-Kashmir National Medical Institute, then an exception has to be provided for in Section 140 of the Transfer of Property Act, 1977 as was done in the case of transfer of land in favour of Vishwayatan Yogashram, Jammu.
6. This exception to be provided by way of amendment to the Transfer of Property Act, 1977, will be in the following form:
After Clause (b) of Section 140 of the Transfer of Property Act Samvat 1977 the following shall be added, namely:
`(c) a transfer of immovable property in favour of Sher-i-Kashmir National Medical Institute Trust, Srinagar.'
7. The Health Department also processed a memorandum for its approval by the Cabinet which was subsequently approved by the Cabinet under Decision No.121 dated 17th February, 1976. Consequently, the Transfer of Property Act, Samvat 1977 was amended on the aforesaid lines in March, 1976.
8. Thereafter, the matter was sent to the Revenue Department. The contemporaneous record reveals that the Revenue Secretary at paragraph 18 of the note recorded as under:
Now the question arises regarding the transfer of this whole property to the Trust. This has actually to be done by the General Department as it involves the property of many Departments. Besides this, we have to execute a transfer deed with the Trust for which sufficient court fees etc. has to be made available by the Trust. The case will, therefore, be returned to the Health Department with the request that the transfer of this whole property has to be made under Transfer of Property Act and a deed is to be executed in the Court of law for such transfer. Accordingly, the Health Department/General Department will issue necessary orders regarding such transfer.
(Underlining supplied)
9. Consequent upon the above, a meeting was convened in the office of Commissioner, Housing and Urban Development Department on 23rd June, 1976 in which Revenue Secretary, Health Secretary, Special Secretary, Housing; Special Secretary, General Department and Deputy Secretary, Housing, participated. In the said meeting, the question of transfer of land of the Housing Department in Soura, the Dispensary building and land at Moulana Azad Road and the building formerly used by the Drug Research Laboratory with land appurtenant thereto to the petitioner-Trust was discussed. Minutes of the meeting circulated vide endorsement dated 3rd July, 1976, inter alia, state as under:
The Commissioner, Housing and Urban Development stated that an area of about 292 Kanals in Soura, which had been developed into plots had been already transferred to the Institute. It was agreed that the Housing Department will intimate to the General Department the particulars and the area of the land already transferred and proposed to be transferred. The Commissioner for Housing and Urban Development mentioned that the acquisition and the development cost of this land will have to be got written off and the Government will also have to incur liability for payment of instalments and interest to the L. I. C. who had partly financed the acquisition of this land.
The Health Secretary will send the particulars of the property of the Health Department proposed to be transferred to the Sher-i-Kashmir Medical Institute.
It was mentioned that the properties in question were proposed to be transferred to the Institute in proprietary right free of cost and would be by way of donation. The transfer of property Act has already been amended to allow transfer of State Property to the said Institute and it was agreed that the deed will eventually be signed on behalf of the Government by the Secretary to Government, Revenue Department after orders of the Cabinet on the proposal are obtained.
(Underlining supplied)
10. The Additional Secretary to Government, Revenue Department, vide his letter dated 20th July, 1976, wrote back to the Secretary to Government, General Department that, as the transfer on proprietary basis had to be made under the J&K Transfer of Property Act, which was not the subject matter of Revenue Department, the deed in this behalf was to be executed by the General Department.
11. While the matter was in process with the Government, Mr. R. K. Sawhney, Secretary of the Trust, addressed letter dated 6th August, 1976 to the Secretary to Government, Revenue Department, requesting him to intimate the steps taken by him regarding the transfer of land and buildings to the Trust. The letter is quoted below:
SHER-I-KASHMIR NATIONAL MEDICAL INSTITUTE TRUST CHAIRMAN: SHEIKH MUHAMMAD ABDULLAH Maulana Azad Road Srinagar Kashmir.
No. 193-94 August 6, 1976 Shri Ghulam Mustaffa Khan, Secretary to Government, Revenue Department, Srinagar.
My dear Khan Sahib, Sub: Transfer of land and buildings to Sher-i-Kashmir National Medical Institute Trust.
Kindly refer to my D. O. letter No.1288 dated 10th May, 1976, regarding the subject noted above, to which I have received no reply from you so far.
I would request you to kindly intimate the steps that have been taken by you in this regard.
A copy of my D. O. letter referred to above is enclosed herewith for your kind reference.
With kind regards, Yours Sincerely, Sd/-
R. K. Sawhney SECRETARY.
12. In reply to the aforesaid letter, he was informed by Revenue Secretary that the case had gone to General Department and that he should contact Secretary, General Department, in this behalf. The Secretary of the Trust then addressed communication No.264-66/8 dated 23rd August, 1976 to the Secretary to Government, General Department, which too is quoted below:
SHER-I-KASHMIR NATIONAL MEDICAL INSTITUTE TRUST CHAIRMAN: SHEIKH MUHAMMAD ABDULLAH Maulana Azad Road Srinagar Kashmir.
No.264-66/8 Dated August 23, 1976 The Secretary to Government, General Department, Srinagar.
Dear Sir, Ref: i. Transfer of 292 Kanals and 8 Marlas of land to the Trust;
ii. Transfer of Drug Research Laboratory Building Kothibagh Srinagar to the Trust;
iii. Transfer of Government Dispensary at Soura to the Trust.
The Additional Secretary to Government, Revenue Deptt. has, vide his letter No. Rev (NDK)73/35 dated 16-8-1976 (copy enclosed herewith for your kind reference) informed that the case regarding the above noted subject has gone to the General Department with all formalities having been completed, for issuing transfer orders under the provisions of the Transfer of Property Act. I would, as such, request you to kindly take very early action in the matter at TOP PRIORITY basis and issue necessary orders in the matter.
Thanking you Yours faithfully, Sd/-
R.K. Sawhney SECRETARY.
13. The above two letters are worded in a manner from which it is difficult to imagine that the Secretary of a public charitable trust could address the Secretary to Government, Revenue Department, and Secretary to Government, General Department, in such a tenor.
14. Vide Government order No.214-ME of 1976 dated 27th August, 1976, yet another property, namely, the Kashmir Nursing Home, Gupkar road, Srinagar, was transferred along with its land, buildings and annexe and all its assets, including equipment, to the Trust on the condition that the Trust shall use the premises of the Nursing Home solely and exclusively for maintaining a Nursing Home and that the Trust shall provide adequate representation to the Government on its Management Committee. It was further provided in the order that the Management Committee shall consist of not less than 7 and not more than 11 members. The Government's representation was prescribed to be 3 in a committee of 7, 4 in a committee of 9 and 5 in a committee of 11 to be nominated by the Government.
15. While the matter relating to absolute transfer was still under process, Mr. R.K. Sawhney, Secretary of the Trust, addressed a D. O. Letter No.122/8/77 dated 5th August, 1977 to Mirza Muhammad Afzal Beg, the then Deputy Chief Minister, Jammu and Kashmir Government, who also held the Revenue Portfolio at the relevant time, besides being one of the trustees of the petitioner-Trust. The letter reads as under:-
SHER-I-KASHMIR NATIONAL MEDICAL INSTITUTE TRUST CHAIRMAN: SHEIKH MUHAMMAD ABDULLAH R.K. SawhneyMaulana Azad Road Secretary.Srinagar Kashmir.
D.O. No.122/8/77 August 5, 1977 Jenab Mirza Mohammad Afzal Beg Deputy Chief Minister, Jammu & Kashmir Government Srinagar.
My dear Beg Sahib, I would like to invite your kind attention to our discussions held in the Central Office of the Sher-i-Kashmir National Medical Institute Trust yesterday in the meeting of Board of Trustees, regarding transfer of (i) land measuring 292 Kanals at Soura, Srinagar, and (2) Drug Research Laboratory buildings at Kothibagh, to the Trust.
As regards transfer of 292 kanals of land, I would like to inform you that the State Government, vide Government Order No.872-HB of 1973 dated 14.10.1973 sanctioned grant of the land situated at Zoonimar, Tehsil Srinagar on lease in favour of the Trust for a period of 40 years at a consolidated rent of Rs.101/- per annum. The then Chief Minister was approached vide this office letter No.723 dated 22.5.1975 (copy enclosed) to amend the Government Order to make absolute grant of the land in favour of the Trust. It was explained in the said letter that the Medical Institute is a charitable Institute set up in this backward State to help the poor and down trodden people of the State so that they get proper treatment of their ailment within the State without going to big cities where specialized treatments are available involving huge expenditure. Since then the matter has been with different administrative Departments of the State Government and presently with the Health and Family Planning Department.
The Dug Research Laboratory buildings at Kothibagh, Srinagar, were allotted by the State Government to the Trust on rent basis; vide Government Order No.232-MD/G of 1974 dated 23.5.1974. The then Chief Minister of the State was requested vide this office letter No.729 dated 22.5.1977 (copy enclosed) to amend the said Government Order and make absolute grant of the buildings to the Trust. Syed Mir Qasim who was then the Chief Minister, had in principle agreed to transfer the buildings to the Trust. Since then the matter has remained under correspondence in different Administrative Departments of the State Government. Meanwhile, we received a letter No.879-80 dated 25.4.1977 from the Executive Engineer Construction Division No. I, Srinagar, demanding payment of rent for these buildings at the rate of Rs.800/- per month tentatively till the final assessment was made, (copy of the letter enclosed). We approached Shri S. Baner Ji, the then Advisor to Governor of the State, vide this office letter No.2135/77 dated 9th May, 1977 (copy enclosed) informing him of the need of starting a properly equipped laboratory in the city of Srinagar for clinical investigations which has costed the Trust nearly rupees four lakhs to equip with most modern and sophisticated equipment. He was also informed that the Trust is very shortly planning to equip the laboratory for the latest and complicated investigations so that the people of the State are able to get thorough investigations done under one roof and do not have to go outside the State for higher clinical investigations. He was requested to take personal interest in the matter and favour us with necessary sanction to transfer of the said buildings to the Trust.
In this connection, I would like to mention here that in the year 1962 the State Government vide Government Order No.lPW-2/Deb/62 dated 31.1.1962 (copy enclosed), sanctioned leasing out of the premises and buildings known as Revd. Biscoe's and Revd. Barton's Homes at Sheikh Bagh, Srinagar, to the C. M. S. School authorities for a period of 40 years at a nominal rent of Re.1/- per annum.
The Board of Trustees would be highly grateful if you very kindly amend the relevant Government orders mentioned above and sanction absolute grant of the land and buildings in favour of the Trust.
With kind regards.
Yours Sincerely, Sd/-
R. K. Sawhney (Underlining and highlighting supplied)
16. Before proceeding further, it may be mentioned here that there is a glaring mis-statement made in the aforesaid letter insofar as it is stated therein that letter dated 22nd May, 1975 was addressed to the then Chief Minister. On 22nd May, 1975 the Chief Minister of the State was Late Sheikh Muhammad Abdullah not Syed Mir Qasim. Be that as it may, there is an endorsement dated 5th August, 1977 recorded on the left margin of this communication signed by Mr. Beg, the then Deputy Chief Minister, also holding the Revenue portfolio, to the following effect:
Please take up with Revenue Secretary who has been directed by me already.
17. It is note worthy that the letter is written on 5th August, 1977 and it reaches the Deputy Chief Minister on the same day and, before its receipt, he had given the necessary directions to the Revenue Secretary in this behalf. The Government seems to have been more particular and concerned about the affairs of the Trust than the interest of the Government. Record shows that since June 1976, the matter was with the General Department. However, on receipt of the aforesaid communication, the Deputy Chief Minister on 11th August, 1977, called a meeting of the concerned officers in his office and directed the Revenue Secretary to play the role of a Coordinator in getting this matter of important nature finalized.
18. Consequent to the above, a note for the Memorandum of Submission to the Cabinet under the caption Transfer of State property to the Sher-i-Kashmir National Medical Institute Trust was prepared. While indicating the four properties transferred on lease/rent etc. to the Trust vide four different Government orders in paragraph fist of the aforesaid Memorandum of Submission to the Cabinet, in its paragraph 2 the following was mentioned:
The Trust for some time past has been requesting for transfer of the aforesaid property to it on proprietorship basis, free of costs and without any rider because the terms and conditions attached to the temporary transfer of the property will effect or is likely to effect the aim/object behind its establishment in the State, i.e., to serve the suffering humanity without any bureaucratic interference
19. Consequent to the note, Memorandum of Submission to the Cabinet was prepared by Secretary to Government, Revenue Department on 20th March, 1978. Paragraph No.6, 7 and 8 of the Memorandum may be quoted below:
The details of the immovable property to be transferred to the Institute on proprietorship basis free of cost are as under:
--------------------------------------------------------------------------------
S.No. Particulars of Identification Ref. under
which Property consent of the Deptt
was obtained.
--------------------------------------------------------------------------------
1. Government Dispensary at Soura consisting of:
i) main building, As per site plan Health Deptt marked (A) U.O. No.177-PB/78 dated 19.1.978.
ii) Chowkidar's shed
iii) Kitchen block
iv) land measuring 8 Kanals (open as well as under structures).
2. Drug Research Laboratory As per site plan -do-
building & open land appurtenant Marked (B) to it measuring 7 Kanals 12 marlas (under structures 4 Kanals and open land 3 kanals 12 marlas.).
3. Kashmir Nursing Home As per site plan -do-
consisting of building and marked (C) its annexe and open land with its assets including equipment. Land involved measures 7 Kanals 5 marlas (under structures 7 Kanals and 12 marlas and open land 14 Kanals 13 marlas).
4. Land measuring 292 kansls Site plan Not 8 marlas situated at marked (D) received Zoonimar, Srinagar.
The Finance Department have vide their U.O. No. FE-EN-42/7P-HD/76 dated 11.2.1978 at page 113/C conveyed their agreement for transfer of land free of costs.
20. The Revenue Secretary with the approval of the Hon'ble Deputy Chief Minister (Revenue) submits to the Cabinet the following resolution for orders:
1. Resolved that the property, details whereof are given at S. No. 1, 2 and 3 of para 6 of the memorandum be, in exercise of the powers vested under section 140 clause (c) of the Transfer of Property Act, 1977, transferred from the Health, Family Welfare and Medical Education Department to Sher-i-Kashmir National Medical Institute Trust, Srinagar on proprietorship basis free of costs.
2. In respect of the property, the details whereof are given at S. No.4 of para 6 of the memorandum the case is submitted to the Cabinet for such orders as are deemed suitable.
21. The Cabinet, vide its Decision No.577 dated 12th April, 1978, took the following decision:
The proposal of the Revenue Department was approved with the modification that the property as listed at S. No.1, 2, 3 & 4 of para 6 of the memorandum be transferred to the Sher-i-Kashmir National Medical Institute Trust, Srinagar, in ownership right as donation from the J&K Govt.
22. Consequent to the aforesaid Cabinet Decision, Government issued Order No. Rev. (NDK) 90 of 1978 dated 19th April, 1978, which is quoted below:
GOVERNMENT OF JAMMU AND KASHMIR REVENUE DEPARTMENT.
Subject: Transfer of State Property including land to the Sher-i-Kashmir National Medical Institute Trust, Srinagar, in ownership right.
Reference: Cabinet Decision No.577 dated 12.4.1978.
Government order No. Rev (NDK) 90 of 1978 Dated 19.4.1978 In exercise of the powers conferred by clause (c) of Section 140 of the Transfer of Property Act, 1977 (Smvt), sanction is hereby accorded to the transfer of the State property, detailed below, to the Sher-i-Kashmir National Medical Institute Trust, Srinagar in ownership right, as a donation from the J&K Government :-
---------------------------------------------------------------------------
S.No. Particulars Identification:
---------------------------------------------------------------------------
1. Land measuring 292 kansls 8 marlas situated at Zoonimar, Srinagar, belonging To the Housing & Urban Dev. Deptt.
comprised in Khasra Nos.415, 423, 424, 422, 5381/421, 5582/421, 425, 426, 429, 432, 430, 431, 433, 434, 416, 417, 418, 419, 437, 438, 411, 412, 413, 414, 388, 5379/390, 5380/390, 391, 392, 389, 394, 410, 405, 407, 408, 409/1, 409/2, 406, 398, 399
2. Govt. Dispensary at Soura i) main building, comprised in Khasra ii) Chowkidar's shed consisting of: iii) Kitchen block and the under and No.5386/332 appurtenant measuring 8 Kanals situated at Soura, Tehsil. Khas belonging to Health Department.
3. Drug Research Lab. Comprised in Khasra building including land under No.437/167 and appurtenant to it measuring 7 Kanals 12 marlas situated at Kothibagh belonging to Health Department.
4. Kashmir Nursing Home Comprised in consisting of buildings and Khasra Nos. annexe including the land 11, 42, 43. under and appurtenant to it measuring 22 Kanals 5 marlas situated in Estate Bonumsar (Gupkar Road) Sgr.
belonging to Health Department.
---------------------------------------------------------------------------
By order of the Govt. of Jammu and Kashmir.
Sd/-
Secretary to Government, Revenue Department.
23. Copy of the aforesaid Government order was, inter alia, endorsed to the Secretary, Sher-i-Kashmir National Medical Institute Trust, Srinagar. Though there was no formal deed of transfer of the aforesaid properties to the Trust executed yet, the Trust got the aforesaid properties mutated in its name in the revenue records.
24. As mentioned earlier, the Government of Jammu and Kashmir also seems to have been working on the setting-up of a 500-bedded Hospital at Soura. Before the issuance of the aforesaid order, the Government in the Medical Education Department issued Order No.18-ME of 1977 dated 18th January, 1977 renaming the said Hospital as Institute of Medical Sciences, Soura, Srinagar. The order reads as under:
GOVERNMENT OF JAMMU AND KASHMIR, CIVIL SECRETARIAT. DEPARTMENT OF MEDICAL EDUCATION.
Sub: Renaming of 500-bedded Hospital, Soura, (Srinagar).
Ref: Decision taken in the meeting of Governing Body of 500-Bedded Hospital, Soura (Srinagar)held on 27.11.1976.
Government Order No.18-ME of 1977 Dated. 18.1.1977.
It is hereby ordered that 500 Bedded Hospital, Soura (Srinagar) be renamed as Institute of Medical Sciences, Srinagar.
By order of the Government of Jammu and Kashmir.
Sd/-
(J.P. Kesar) Secretary to Government.
25. Thereafter, on 17th December, 1980, an agreement was entered into between the Government of Jammu and Kashmir and the petitioner-Trust. The agreement reads as under:
This agreement made at Jammu on the 17th day of December of 1980 between the Governor of Jammu & Kashmir through the Chief Secretary (herein after called the Government) of the one part and the Board of Trustees of the Sher-i-Kashmir National Medical Institute Trust (hereinafter called the Trust) established under Trust Deed dated 19th May, 1973 and represented through their Vice Chairman, Dr. Ali Mohammad (Jan) of the other part, who has been specifically authorised by the Trust vide Resolutation dated 18th October, 1980.
Whereas the Trust was and is the owner of 292 Kanals 8 marlas of land situated at Soura, Tehsil Srinagar, under survey No. 415, 423, 424, 422, 5381/421, 5582/421, 425, 426, 429, 432, 430, 431, 433, 434, 416, 417, 418, 419, 437, 438, 411, 412, 413, 414, 388, 5379/390, 5380/390, 391, 392, 389, 394, 410, 405, 407, 408, 409/1, 409/2, 406, 398 and 399 evaluated as per Central Government approved valuators under their certificate No.11/79 dated 3.10.1979 at Rs.1.88 Crores sixteen lakhs ninety six thousands (Rs.1,16,96,000.00) as on 3.10.1979, the Sher-i-Kashmir Hospital valued about Rs.8,50,000.00 and the polyclinic alongwith the land under the possession of the Trust valued at about Rs.16,20,000..00 for the construction and establish of the Institute.
26. And whereas, the Trust decided to establish a Medical Institute at the above site;
i) to help, aid, assist, promote, organize, undertake and impart medical instructions, education, training and Research at all levels including undergraduate and post-graduate levels in the diagnosis and treatment of and all related disciplines and branches of medicine, science and technology;
ii) to help, aid, assist, sponsor, organize, establish and or maintain Hospitals, dispensaries, clinics, Health centers, Maternity homes, Antenatal and post natal clinics, convalescent homes, Nursing Homes, Sanatoria, Asylums, child welfare centers, orphanages, medical schools and colleges and all types of Medical Institutions including mobile dispensaries and mobile operation theaters etc;
iii) to meet the every day increasing demand for medical relief for the people in general who cannot afford to go out of the State for specialized treatment; and
iv) to provide specialized facilities, post-graduate studies as well as Research and training facilities;
27. And whereas, the Government also decided to establish an Institute of Medical Sciences (hereinafter referred to as the Institute) in the Northern part of Srinagar.
i) To provide facilities of specialized medical care, need oriented education in medical and health science and clinical research; and
ii) to develop a referral linkage between the primary, secondary and tertiary case institutions of the State in order to achieve regionalization of health care;
28. And whereas, after initial collaboration between the Government and the Trust, it was decided that in order to achieve the laudable object envisaged both by the Government and the Trust, and to avoid multiplicity of similar institutions within the same locality and to avoid possibility of duplication and waste of talent, the Institute should be a joint venture of the Government and the Trust;
29. And whereas, in pursuance of that decision, the Trust offers the above mentioned piece of land measuring 292 Kanals 8 marlas at Soura, Tehsil Srinagar (hereinafter called the site) as the site for the construction of the Institute.
30. And whereas, the Government, having accepted the said offer of the Trust, started construction of the Institute; building at the above said site and whereas no agreement or terms between the Government and the Trust had been reduced to writing so far;
31. Now, therefore, this deed witnesses and the parties do hereby mutually agree as follows:
1) The Trust shall provide to the Institute the land measuring 292 Kanals 8 Marlas valaued at Rs.1,16,96,000.00 mentioned above, the Sher-i-Kashmir Hospital valued about Rs.8,50,000 and the polyclinic along with the land under the possession of the Trust valued about Rs.16,20,000.00 for the construction and establishment of the Institute.
2) The site and other properties mentioned above made available to the Government for the Institute shall continue to be the property of the Trust without any change in its proprietary rights;
3) The government shall be responsible for the construction of the buildings of the Institute and shall meet all recurring and non-recurring charges that may be necessary for constructing, maintaining and running the Institute. The Government shall complete the construction of the Institute and shall be responsible for the commissioning it with suitable required equipment and adequate staffing both technical and otherwise.
4) The Trust shall contribute to the Institute besides the fixed assets mentioned above, any amount received by it as donations or contributions from time to time in the name of the Institute, which shall be used for purposes of research.
5) There shall be a Governing Body of the Institute (hereinafter referred to as Governing Body) with the following composition:
I. Chief Minister, J&K Chairman II. All Members of the Cabinet Members (other than Chief Minister).
III. Four representatives of the Sher-I-Kashmir National Medical Institute Trust, nominated by the Trust from amongst their Chairman, Vice Chairman, Secretary, Treasurer And the Trustees subject to the Condition that the number of such Members does not exceed the Number of members of the Cabinet (other than Chief Minister). Members IV. One of the four representatives Of the Sher-I-Kashmir National Vice - Medical Institute Trust referred to Chairman at (iii) above nominated by the Trust.
V. Project Director/Director Member Secy.
VI. The Chairman may, if he so desires nominate other government functionaries, educationists and Scientists etc. to advise the Governing Body with regard to specific issues.
6) The term of the office of the Chairman, the Members other than the ones nominated by the Chairman and the Member Secretary shall continue so long as he/she/they hold(s) the respective Office by virtue of which he/she/they was/were nominated as Chairman, Member or Member Secretary of the Governing Body respectively.
7) The term of office of the Members nominated by the Chairman shall be for a period of three years at a time, from the date of nomination.
8) The Chairman, the Members and the Member Secretary of the Governing Body shall be appointed as such by the Government by special notification.
9) The Governing Body shall be the supreme executive of the Institute and the decisions taken by the Governing Body shall be deemed to have approval of the Cabinet.
10) The Governing Body shall define the objectives and functions of the Institute and periodically update them so as to enable the Institute to play its rightful role of upgrading the health status of the people.
11) The Governing Body shall frame rules and regulations of the Institute from time to time.
12) The Governing Body may constitute as many standing committees and as many ad hoc committees as it may consider necessary for exercising any power of discharging any function of the Institute or for inquiring into, or reporting or advising upon, any matter which the governing Body may refer or any function which the governing body may delegate to them.
13) The Governing Body shall hold meetings from time to time as may be necessary which shall be at least twice a year.
14) The quorum of the meeting shall be half of the Cabinet Ministers and half of the Trust representatives. If the quorum is not present within half an hour from the time appointed for holding meeting, it shall stand adjourned to the same day in the next week at the same time and place and notice of such adjourned meeting shall be given to each member who was not present at the meeting, on the same day by post, telegram or by special messenger, as the case may require. If at any adjourned meeting also the quorum is not present within half an hour from the time appointed for holding the meeting, the Members present at the meeting shall form the quorum to decide matters which do not need the decision of the Cabinet, provided that if the members present form half of the Cabinet Ministers the quorum shall be competent to decide all matters relating to the Institute.
15) The standing academic committee of the Institute shall have the following compositions:
1. Vice-Chairman of the Governing BodyChairman
2. Project Director/Director Institute of Vice-Medical Sciences.Chairman.
3. Two Members of the Governing Body (other than Chairman and Vice-Chairman)one each from the Government and Sher-i-Kkashmir National Medical Institute Trust, nominated by the Governing Body.Members.
4. Dean, Institute of Medical Sciences. Secretary.
5. The Governing Body may nominate, as Advisers, well known scientists, Medical Educationists and researchers on the standing Academic Committee of the Institute on the recommendations of the Standing Academic Committee.
16) The Institute shall operate on funds both plan and non-plan through the consolidated funds of the State to which will be credited all receipts of the Institute other than those covered by clause 4 of this Agreement.
17) The terms of the Agreement shall not be changed except by a majority vote of the Governing Body subject to the approval of more than 50% of the members of the Sher-i-Kashmir National Medical Institute Trust represented on the Governing Body.
18) If any dispute, doubt, difference, or question shall at any time hereafter arise touching or concerning the construction, effect or meaning of any clause of this Agreement or any matter connected therewith, or the respective rights and liabilities of the partiers hereto, then every such dispute, doubt, question or difference shall be referred to a person mutually agreed to by the Government and the Trust for arbitration. The decision of the Arbitrator thereon shall be final, conclusive and binding on the parties.
32. In witnesses whereof the parties hereto have signed this Agreement in token of acceptance of the terms and conditions thereof on the dates mentioned against each.
33. The Institute of Medical Sciences at Soura was, eventually, set up and made fully functional in the year 1983 at the total expense of the Government and, eversince its establishment, all the funds, on its construction, equipment, maintenance etc. etc. have been and are being borne by the State Government. The Institute is spread over the total area of land measuring nearly about 1000 Kanals, which was originally acquired by the State for setting up of the Housing Colony, including the land that fell under the Government Dispensary.
34. The Drug Research Laboratory at Moulana Azad Road, Kothibagh was dismantled by the petitioner-Trust and converted into a shopping plaza, leasing out the shops and office accommodation therein to private individuals. As regards Kashmir Nursing Home at (Bonumsar) Gupkar Road, Srinagar, the said building has been renovated / reconstructed converting it into a 40-bed Nursing Home and the State Government has incurred an expenditure of Rs.95 lakhs on it. When the Nursing Home was ready, the petitioner-Trust wanted to rent it out to a third party for running the Nursing Home. However, before that could be formally done, the Government issued the impugned order which reads as under:
GOVERNMENT OF JAMMU & KASHMIR HEALTH & MEDICAL EDUCATION DEPARTMENT Sub: Taking over of Kashmir Nursing Home, Gupkar Road, Srinagar and allied matters.
Ref: Cabinet Decision No.119/Cir dated 22.7.2003.
Government Order No.820-HME of 2003 Dated 22.7.2003.
Whereas vide Government Order No.214-HME of 1976 dated 27.8.1976, Kashmir Nursing Home, Gupkar Road was transferred along with its land, building and all the assets to the Sher-i-Kashmir National Medical Institute Trust (hereinafter referred to as the Trust) with the condition that the same shall exclusively be used for maintaining a Nursing Home; and Whereas the Trust had to provide adequate representation to the Government on its Management Committee; and Whereas no such representation has been provided to the Government on the Management Committee which is breach of the transfer of the Nursing Home;
Whereas, vide Government order No. Rev (NDK) 90 of 1978 dated 19.4.1978, land measuring 292 Kanals 8 marlas situated at Zoonimar, Srinagar, Government Dispensary at Soura, Drug Research Lab along with land measuring 7 Kanals and 12 marlas and Kashmir Nursing Home measuring 23 Kanals 5 marlas, particulars whereof are given in Annexure `A' to this order, were transferred to the Trust in ownership as a donation from the Jammu & Kashmir Government; and Whereas, no formal deed of transfer was executed between the parties in respect of the aforementioned property; and Whereas in the year 1995-96, the management of the Trust approached to the Government for taking over the Kashmir Nursing Home as the Trust was not able to maintain the Nursing Home because of the paucity of the funds; and Whereas, in a meeting held under the chairmanship of the then Chief Minister on June 4, 1997, it was decided to take over the aforesaid Nursing Home by the Government and to run it on the analogy of Col. Chopra Nursing Home of Government Medical College, Jammu; and Whereas, vide Government Order No.695-HME of 1997 dated 6.8.1997, the Government sanctioned an amount of Rs.50.00 Lakhs as Grant-in-Aid in favour of the Trust for completion of the new building coming up in the premises of Kashmir Nursing Home; and Whereas, the matter remained pending and, resultantly, the Kashmir Nursing Home remained closed; and Whereas the matter regarding transfer of land effected vide aforesaid Government order was discussed in a meeting by Commr./Secretary, Health & Medical Education, with the then Law Secretary and it was opined that-
`the transfer of landed property with structures thereon though done twice had been done only through simple Government order which ab initio is violative of the State laws. The property was required to have been transferred under the Transfer of Property Act and further conditions defined too, stating whether this is a lease, perpetual or a 99 year lease etc. Therefore, the simplest way to take back the property so transferred to the said Trust is by simply rescinding the Government orders issued in this behalf'.
Whereas, Shri R. K. Raina, Director, Madr-e-Meharban Institute of Health Services, Jammu, through a communication dated 18.5.2003 addressed to Commissioner/Secretary Health & ME Department, sought the permission of the Government for opening a branch of Madr-e-Meharban Institute of Health Sciences, Jammu, at Srinagar; and Whereas the said Dr. R. K. Raina stated in the aforesaid communication that the Trust had agreed, in principle, to lease out the premises of the Kashmir Nursing Home at Gupkar Road to the aforesaid Institute for utilizing the Nursing Home both for patient care as well as for training of para-medical personnel; and Whereas, from the aforesaid communication it is revealed that the Trust has decided to transfer the said Kashmir Nursing Home to a third party in violation of the Government order No.214-HME of 1976 dated 27.8.1976 and without bringing it in the notice of the Government; and Whereas, the purported transfer of the Nursing Home by the Trust to a third party will create interest in his favour at the cost of the State Government and public at large; and Whereas, the Trust had entered into an agreement with the third party to transfer the said Nursing Home to that party for which the inauguration was fixed for 23rd July, 2003, the invitation cadres having been already distributed; and Whereas, purported transfer of land as detailed in Annexure `A' vide Government order No. Rev (NDK) 90 of 1978 dated 19.4.1978 in favour of the Trust is also without any legal authority and in disregard to the provisions of the law; and Whereas, the Government has received numerous complaints about the running and management of the Sher-i-Kashmir Institute of Medical Sciences, Soura; and Whereas the employees of the SKIMS have held demonstrations demanding that the control of the Trust on SKIMS be removed; and Whereas, the SKIMS was made exclusively with the State land and Government funds and the full financial burden of its upkeep, plan and non-plan expenses are borne by the Government; and Whereas, property situated at Kothibagh (commonly known as Dr. Ali Jan Shopping Complex) purported to have been transferred to the Trust vide Government order No. Rev (NDK) 90 of 1978 dated 19.4.1978 has been transferred by the Trust to third parties who have constructed shops and offices thereon and are using the same for commercial purposes in violation of the purpose for which the said property had been so transferred; and Whereas the transfer of the land by the Trust in favour of the third parties, being in violation of the Government order and the purpose for which it was transferred, requires to be probed into thoroughly; and Whereas, it is in interest of public at large, patient care and for managing the affairs of the Institutes and properties more professionally and efficiently that the Government rescinds the aforesaid Government orders and takes over the possession of the Institutes and the properties;
Whereas the Trust has committed various breaches despite the notices and warnings to that effect given to it by the Government; and Now, therefore, in the interest of public at large, patient care and to manage the affairs of the aforesaid institutions and the properties efficiently and professionally, sanction is hereby accorded to the:
1) revocation of Government Order No.214-ME of 1976 dated 27.08.1976 and Government order No. Rev (NDK) 90 of 1978 dated 19.04.1978 and taking over the possession of the property and land etc. referred to in the said Government orders;
2) taking over the possession and management of Kashmir Nursing Home, Gupkar Road, Srinagar;
3) taking over the full management of the affairs of Sher-i-Kashmir Institute of Medical Sciences, Soura, and any other institution / institutions affiliated with it;
4) taking over the legal possession of the property situated at Kothibagh, Srinagar, (Dr. Ali Jan Shopping Complex) over which the State Government asserts the lawful title and claims as real owner thereof vis-à-vis those who have raised construction thereon and are in physical possession thereof; and;
5) referring of the matter to the Vigilance Organisation for investigating the transfer of the land mentioned hereinabove by the trustees / management of Sher-i-Kashmir National Medical Institute Trust to the parties who have constructed houses and shops thereon and are using it for commercial purpose in breach of the purpose for which it was handed over to the trustees.
By order of the Government of Jammu and Kashmir.
Sd/ Secretary to Government, Health & ME Department.
35. The case of the petitioner-Trust is that the Trust was created by forty settlers who raised donations from various persons for its establishment. Objectives of the Trust, inter alia, were to establish Sher-i-Kashmir National Medical Institute; help, aid, assist, sponsor, organize, establish and / or maintain hospitals, dispensaries, clinics, health centers, maternity homes etc. Satisfied by the objectives and purpose of the petitioner-Trust, whereas general public have been donating movable and immovable properties to the petitioner-Trust, the Government of Jammu and Kashmir, initially, vide Order No.MP/214-ME of 1976 dated 27th August, 1976 transferred to the petitioner-Trust the State owned property, namely, Kashmir Nursing Home comprising 22 Kanals of land, structures standing thereon along with its assets, situated at Gupkar Road, Srinagar. The aforesaid Government order dated 27th August, 1976, however, lost its significance when, subsequently, vide Government order No. Rev (NDK) 90 of 1978 dated 19th April, 1978, the Government of Jammu and Kashmir transferred, as donation, various properties indicated in the said Government order, including the Kashmir Nursing Home, to the ownership of the petitioner-Trust.. Apart from the properties donated by the State, as mentioned above, one Mr. Raj Sawhney, who was then Secretary of the Trust, donated a big parcel of land measuring 60 Kanals to the Trust. Besides, one Mr. Beant Singh, identified as owner of Palladium Cinema, also donated 40 Kanals of land to the Trust. Since the stated object of establishing the Medical Institute was a huge project, it was not within the means and resources of the petitioner-Trust, therefore, the Government of Jammu and Kashmir was made aware of this charitable object of the Trust and, being satisfied with the object and the purposes of the petitioner-Trust, the Government of Jammu and Kashmir agreed to construct the Sher-i-Kashmir Institute of Medical Sciences at Soura, Srinagar. In this connection, on 17th December, 1980, an agreement was executed by and between the Government of Jammu and Kashmir and the petitioner-Trust through. Under clause (1) of this agreement, the petitioner-Trust provided to the Government land measuring 292 Kanals and 8 marlas, Sher-i-Kashmir Hospital and the Polyclinic along with the land situated at Soura (Zoonimar), for construction and establishment of the Medical Institute. In terms of clause (2) of the agreement, it was agreed upon that the site and the properties mentioned above and made available to the Government would continue to be the property of the petitioner-Trust without any change in its proprietary rights. The Government of Jammu and Kashmir, being cognizant of the increasing demand for medical relief amongst the people of Jammu and Kashmir in general, particularly those who could not afford to go out of the State for specialized treatment and for the provision of specialized facilities like Post-graduate studies, research and training faculties, agreed to the establishment of the Institute under the terms and conditions indicated in the agreement. In addition to the aforesaid fixed assets, the petitioner-Trust also agreed to contribute to the Medical Institute donations or contributions that it might receive in the name of the Institute, to be used for purposes of research works. It was agreed upon that the Vice Chairman of the Governing Body would be one of the representatives of the Trust. Dr. Muhammad Ali Matoo is the present Vice Chairman of the Governing Body and earlier late Dr. Ali Jan and Dr. G. Q. Allaqaband have held such position from 1983 to 1989 and 1989 to 1997 respectively. The executive power in relation to the affairs of the Medical Institute rests with the Government of Jammu and Kashmir through its Director as a Major Head of the Department and that the Vice Chairman of the Governing Body of the Institute has no executive power. The Vice Chairman has no veto power and he has to strictly abide by the resolutions of the Governing Body which in turn are required to be vetted by the full Cabinet of Ministers of the Government of Jammu and Kashmir who are members of the Governing Body. That apart, the Vice Chairman does not receive and has never received any compensation for the assignment of the post of Vice Chairman of the Institute.
36. The further case of the petitioner-Trust is that the Kashmir Nursing Home and the land underneath and appurtenant thereto, transferred to it by the Government of Jammu and Kashmir vide Government Order No. Rev. (NDK) 90 of 1978 dated 19th April, 1978, was run by the petitioner-Trust as a Nursing Home until early 1990s. As the structure that existed on the said land at the time of its transfer to the petitioner-Trust was insufficient for running an organized and professional Nursing Home, the petitioner-Trust felt the necessity of constructing a new building near the old building site. The Trust, accordingly, undertook the construction work of a 40-bed Nursing Home with provision for modern facilities. All expenditures for such construction were borne out of the Trust funds. (This statement is belied by their subsequent averments). That apart, in order to raise funds for its stated objects and purposes, the petitioner-Trust started construction of a shopping complex, namely, Dr. Ali Jan Plaza at Moulana Azad Road, Kothibagh, Srinagar, on the land transferred to it by the Government. However, after the eruption of militancy in the State, construction work was interrupted as the contractor to whom the work was entrusted, abandoned the projects and left the Valley. The construction of the new Nursing Home at Gupkar Road, Srinagar, and Dr. Ali Jan Plaza at Moulana Azad Road, Kothibagh, Srinagar, was resumed only in the year 1997. The construction of the new Nursing Home was completed in the early 2003 at an expenditure of Rs.2.00 Crores. The staff of the Nursing Home, who continued to be paid their salaries aggregating to the tune of nearly Rs.94.00 Lakhs from 1989 to 2003, became a constant heavy burden on the funds of the Trust. Eventually, in terms of decision dated 16th April, 2003 taken by the Board of Trustees, their services were terminated with a golden handshake. As the petitioner-Trust was not equipped with the expertise, staff and other resources or infrastructure to manage the new Nursing Home on day-to-day basis and run it in accordance with the guidelines of the Medical Council of India and also to increase the corpus of the Trust funds, it decided to outsource its management. Several offers were received and one such offer was received from a local person with whom the petitioner-Trust executed a duly registered contract. The petitioner-Trust incurred an expenditure of Rs.3.00 Crores for the construction of Dr. Ali Jan Plaza at Moulana Azad Road, Kothibagh, Srinagar. Against the aforesaid property situated at Kothibagh Srinagar, the petitioner-Trust was sanctioned a loan of Rs.1.40 Crores by the Jammu and Kashmir Bank out of which an amount of Rs.1.25 Crores was withdrawn in the year 1989. The Trust has already repaid the amount of Rs.1.25 Crores along with interest of Rs.1.10 Crores to the Bank. The shops and office accommodations available in the shopping plaza were allotted on lease to different persons in exchange for corpus donations and monthly rental payments which supplemented the Trust income to be used for its stated objects and purposes and, in doing so, the Trust received an amount of Rs.30,12,453/- on account of rent from the lessees. Both the landed properties located at Moulana Azad Road, Kothibagh, and at Gupkar Road, Srinagar, are owned by the Trust and stand duly mutated in its favour in the revenue records.
37. It is alleged that Mufti Muhammad Sayeed, the present Chief Minister of the State, always harboured a political grudge against Sheikh Muhammad Abdullah and his son Dr. Farooq Abdullah in particular and all their family members in general and, immediately after taking over as Chief Minister of the State, it became known that he and his Government were intent on ending, what they alleged was, the monopoly of Sheikh family in the State. In pursuit of that objective, respondents 5 to 8 (namely, Mufti Muhammad Syed, Chief Minister; Shri Muzaffar Hussain Beigh, Minister for Finance, Law and Parliamentary Affairs; Shri Chowdhary Lal Singh, State Health Minister and Hakim Muhammd Yasin, State Revenue Minister) and rest of the Government in general, began conspiring to usurp the assets of different trusts established as charitable and religious trusts and level baseless allegations, aimed solely at defaming the family of Sheikh Muhammad Abdullah in particular and the people associated with the family in general.
38. The case of the petitioner-Trust further is that on a news item that appeared in a local English daily Excelsior captioned Nursing Home Ali Jan Plaza being taken over, the petitioner, on inquiry, was informed that, during the intervening night of July 22nd/23rd, 2003 the eve of the inauguration of the newly constructed Kashmir Nursing Home, the Government had taken forcible possession of the Nursing Home at Gupkar Road as also made an attempt to seize Dr. Ali Jan Plaza. The functionaries of the State Government on instructions had gone to the extent of seizing and sealing the office of the Trust which was situated within the Nursing Home building. It is alleged that the Government of Jammu and Kashmir in general and respondents 5 to 8 in particular had launched a vilification campaign against the most respected family of Kashmir by quoting and referring to wrong facts thereby trying to mislead the public at large. The respondents, being in Government, were in control of all resources to place an iron curtain on the true and actual facts. The entire exercise, according to the petitioner, was vindictive, politically motivated, biased, and discriminatory; against the principles of natural justice, provisions of the Trust Act, 1977 and the Civil Procedure Code and in colourable exercise of power. The petitioner-Trust was never served with any notice by the Government nor ever informed about the suspicions entertained by it about the functioning of the Trust. According to the petitioner, Government Order No.214-HME of 1976 dated 27th August, 1976, referred to in the impugned order, whereby Kashmir Nursing Home was initially transferred to the Trust was superseded by the subsequent Government order dated 19th April, 1978. The Trust, treating the ownership of the properties in question as a lawful donation from the Government, relied and acted upon the said Government order and, in reliance upon the said Government order and clause (2) of the agreement entered into between the Government and the Trust, provided the 292 Kanals and 8 marlas of land situated at Soura to the Government for construction of the Institute. According to the petitioner-Trust, the reason mentioned in the impugned order, that the Trust did not take any step for executing a formal deed of transfer after the issuance of Government Order dated 19th April, 1978, was misplaced. The Government failed to serve any notice or warning to the Trust in respect of its ownership or use of the properties in question and that the subsequent investments made by the Trust to fund the construction of Dr. Ali Jan Plaza at Moulana Azad Road and Kashmir Nursing Home building at Gupkar Road, within the knowledge of the Government, and indeed with its active participation in some areas, constitutes factors on account of which it could not, at this stage, be legal for the Government to rescind the order dated 19th April, 1978. The transfer of the properties to the Trust by the Government coupled with the silence of the Government over the years and developments of the properties made by the Trust after incurring substantial amounts had created a constructive trust in favour of the Trust. Therefore, the Government was estopped from claiming that the petitioner-Trust was not the owner of such property. It is alleged that the action was mala fide and discriminatory against the petitioner-Trust. Besides 292 Kanals and 8 marlas of land situated at Soura, the petitioner Trust, pursuant to the agreement between the Government and the Trust, also provided to the Institute, Sher-i-Kashmir Hospital and Polyclinic which were housed on the land donated to the Trust by one Mr. Raj Sawhney and Mr. Beant Singh. Rescinding that part of the Government order dated 19th April, 1978 meant that the construction of the Institute itself was illegal because once the transfer of ownership right of 292 Kanals of land was illegal, then the agreement executed between the Government and the Trust was retrospectively ineffective. The land, over which the Sher-i-Kashmir Hospital and Polyclinic stood, admittedly, belonged to the Trust and needed to be returned to the Trust. Taking over the full management of the affairs of the Medical Institute was illegal, as being violative of relevant clauses of the agreement. Similarly taking over of the possession of Dr. Ali Jan Plaza and Kashmir Nursing Home was also illegal. That leasing out of houses and shops in exchange for corpus donation and monthly rental was expressly permitted under paragraph 19 of the Trust Deed and, therefore, any such action by the Trust was not in violation of the provisions of the Trust Deed. The impugned order on its face was tainted, vindictive, without jurisdiction and violative of all canons of law. Order dated 19th April, 1978 transferred the Kashmir Nursing Home alongwith its land to the Trust without any condition of giving representation to the Government on the management committee of the said Nursing Home and, therefore, the petitioner Trust was not in breach of any requirement to provide any such representation to the Government. In their haste, the respondents did not have time to think whether it was appropriate for the Health and Medical Education Department, through its Secretary, to issue the impugned order rescinding orders issued by the Revenue Department in 1976 and 1978, since they related to the transfer of State owned property.
39. The grounds urged in the petition are that since the Government in terms of the impugned order had sanctioned taking over of the functioning of the Trust and its properties, it tantamounted to circumventing the procedure and remedy available under Section 92 of the Code of Civil Procedure as also the arbitration clause provided in the agreement executed by and between the Government and the Trust. The agreement for all practical purposes was in force and it could neither be annulled nor its terms could be changed save as provided in clause 17 of the agreement; that the Petitioner / Trust and the Board of trustees had all along been strictly observing the provisions of Trust Act, 1977; that the execution of a contract for running the management of the Nursing Home by local doctors was considered a necessity by the Board of Trustees and while executing that contract with the doctors, the Trust took all necessary precautions for protecting the title of the property and also to ensure that the objects and the purposes of the Trust were also practiced by the party which was taking over the management of the Nursing Home. Petitioner-Trust has also appended a copy of such contract as annexure H to the petition. It is alleged that the impugned order was an arbitrary and colourable exercise of power, politically motivated to settle scores and to defame the family of Sheikh Muhammad Abdullah and Dr. Farooq Abdullah by levelling false and frivolous allegations. According to the petitioner, the Trust had a total of 11 trustees out of which only Dr. Muhammad Ali Matoo happened to be the son-in-law of late Sheikh Muhammad Abdullah and that no other trustee was related to the Abdullahs such that the trust was held by independent trustees as well. It is further alleged that respondents 5 to 8 conspired to take over the Trust and Trust properties illegally and expropriate, in utter violation of the law, the trust on account of alleged links between the Trust and the family of Sheikh Muhammad Abdullah and the fact that it was setup during the tenure of Sheikh Muhammad Abdullah as Chief Minister. According to the petitioner, it was inaccurate and unfair to brand the Trust as a family affair of the Abdullahs. On these facts and grounds, the petitioner-Trust has made the following prayers in the writ petition:
It is, therefore, most respectfully prayed that this Hon'ble Court may be graciously pleased to:
(a) Issue an appropriate writ, direction or order quashing and setting aside Cabinet Decision No.119/Cir. Dated July 22, 2003;
(b) Issue an appropriate writ, direction or order quashing and setting aside Government Order No.820-HME of 2003 dated July 22, 2003;
(c) Issue an appropriate writ, direction or order commanding he respondents No.1 to 11 not to interfere with the working of the Trust and with the Trust properties, including the property transferred to the Trust vide Government Order No. Rev (NDK) 90 of 1978 dated April 19, 1978 and all other property owned by the Trust;
(d) Issue an appropriate writ, direction or order commanding the respondents No.1 to 11 to return/restore the possession and management of the Kashmir Nursing Home, including the Trust Office, located at Gupkar Road, Srinagar, to the Trust;
(e) Issue an appropriate writ, direction or order to the respondents No.1 to 11 to run the Sher-i-Kashmir Institute of Medical Sciences (SKIMS) and any other institution/institutions affiliated with it in accordance with the terms of the agreement dated 17th December, 1980, through the Governing Body constituted under Clause (5) and other relevant Clauses of said Agreement;
(f) Pass such further or other orders that this Hon'ble Court may deem just and proper in the facts and circumstances of the case.
40. In their reply affidavit, the respondents have taken certain preliminary objections to the maintainability of this writ petition, such as, that none of the fundamental, legal or constitutional rights of the petitioner had been violated; that the writ petition involved disputed questions of fact which could not be gone into in writ jurisdiction; that relief under Article 226 was not available for deciding disputes for which remedies were available under the general law; that the reliefs prayed for in the writ petition tantamount to claiming declaration of title to property which could not be granted in writ petition etc.
41. The respondents have also given a brief resume of the factual background of the case which we have substantially already noticed. However, in addition thereto, it is stated that vide Award No.214-16/824/LAC, 7 Kanals and 7 marlas of land were acquired from Dr. Farooq Abdullah and Tariq Abdullah and compensation was duly paid to them by the Government. Government order No.872 of 1973 dated 14th October, 1973, whereby sanction was accorded to the transfer of land measuring 292.8 Kanals on lease basis in favour of the Trust, envisaged execution of a lease deed. However, no instrument of lease was ever executed between the Government and the Trust. Similarly the conditions of transfer envisaged to be laid in terms of Government Order No.223-MD of 1974 dated 23rd May, 1974, whereby Drug Research Laboratory along with 7 Kanals and 8 marlas of land situated at Kothibagh, Srinagar, was transferred to the Trust on rent basis, never came to be provided for the purported transfer. Further, the conditions prescribed in Government Order No.214-ME of 1976 dated 27th August, 1976, whereby Kashmir Nursing Home at Gupkar Road, Srinagar, along with land and buildings, was purportedly transferred to the Trust were not fulfilled by the Trust and no transfer deed, as envisaged in law, ever came to be executed between the Trust and the Government.
42. Responding to the averments made in the writ petition, it is urged in the reply that the substratum of the agreement between the Government and the Trust, that land measuring 292.8 Kanals situated at Soura and Sher-i-Kashmir Hospital was the property of the Trust, was factually and legally incorrect and not true. It is denied that the Trust was the owner of the said property as mentioned in the agreement. According to the respondents, such a statement in the agreement amounted to misrepresentation and fraud, which vitiated the agreement. It is stated that from the time of acquisition of land, the commencement of construction of the Medical Institute till July, 2003, the State Government had incurred an expenditure, both plan and non-plan, of Rs.520,67,17,800 (Rupees Five hundred twenty Crores, sixty Seven Lakhs, Seventeen Thousand and Eight Hundred). In this connection, the respondents have appended with the reply as annexure R4, an extract statement of expenses incurred on construction, development and maintenance of the Medical Institute. According to the respondents, the Medical Institute was being run on the total investment of the State exchequer right from its very inception and the inclusion of four representatives of the Trust, with virtual veto power on the Governing Body of the Institute, had resulted in failure of the management to run the Institute as warranted under law. The management had deteriorated the condition of the Institute so much so that the irregularities in the selection and appointment of Faculty Members in the Institute had become public through media as also through various writ petitions filed before the Court. On knowledge, the Government, vide Order No.902-GAD of 2001 dated 7th August, 2001 read with Government Order No.930-GAD of 2001, constituted a Committee under the Chairmanship of Justice G. A. Kuchhai (Retired). The Committee found that the selection of Faculty Members of the Medical Institute suffered from gross irregularities. The Committee also found that the recommendations of the XXVII Apical Selection Committee were not signed by all the Members of the Apical Committee which, apart from other Members, consisted of Vice Chairman of the Governing Body, namely, Dr. Muhammad Ali Matoo. The Committee, in its report, observed that, on account of impediments caused by the Institute authorities under the dictates of the Petitioner, Dr. Muhammad Ali Matoo, it could not thoroughly verify the specific allegations received through media, anonymous letters and some representations of the aggrieved candidates regarding absence of Members of the Apical Committee of the Medical Institute on the day of interview, tampering with evaluation marks assigned by the Experts and Members of the Apical Selection Committee and arbitrary allocation of marks for publication. Apart from the report of the Mr. Justice Kuchhai Commission regarding the irregularities committed by the Institute, some other complaints were received from the Prime Minister's office; Chairman, Petition Committee (Lok Sabha) and Employees' Unions. In the recruitment process of the Institute, the Vice Chairman of the erstwhile Governing Body was Vice Chairman of the Apical Selection Committee as well as Chairman of the Senior Selection Committee. Consequently, recruitment to the posts of Faculty Members was made on the recommendations of the Apical Selection Committee and the petitioner, Dr. Muhammad Ali Matoo, had important role to play in his capacity as Vice Chairman of the said Committee. Similarly, the selection and appointments against Gazetted posts in the Institute were made on the basis of the recommendations of the Senior Selection Committee and the petitioner again was Chairman of the said Committee. Glaring examples of malpractices, unfairness in the selection of Faculty Members by the Vice Chairman of the Trust were noticed by a learned Single Judge of this Court while deciding writ petition, SWP No.1284/2001 titled Dr. Fayaz Ahmad Sofi v. State of J&K on 12th June, 2003. The hygienic condition of the Institute had deteriorated to the detriment of health care of the common masses and there was total mismanagement in dealing with the affairs of the Institute. The management of the Institute was held hostage to the agreement under which the Institute was being controlled and run as a personal fiefdom of a certain family through their son-in-law, the petitioner in the writ petition. The Government was committed to upgrading and improving health services in the State and to attain that objective certain measures, including opening of a new Children Hospital and upgradation of Lal Ded Hospital for Women, were being given top priority in the health sector. In that background, according to the respondents, the wrecked and miserable condition of the Medical Institute was a challenge that the Government could have ignored only as a dereliction of its duties under the Constitution. Failures of the trustees of the petitioner-Trust constituted an anticipatory breach of their own commitments and fundamental condition of the agreement dated 17th December, 1980. In the totality of the facts and circumstances, it was felt that the affairs of the Institute were not run, as warranted, in the interest of public. The Government, therefore, was compelled to act and discharge its duties by taking over the responsibility for the upkeep and management of the Institute which, but for the façade of agreement dated 17th December, 1980, should have been under the control of the Government like any other Department. As to the arbitration clause, i.e. clause 18, of the agreement, it is stated that the same is not applicable to the facts and circumstances of the case and, in any case, it was for the petitioner-Trust to take recourse to this clause of the agreement which also barred the filing of the present writ petition. According to the respondents, by virtue of Government order dated 19th April, 1978, no right or title in the properties was vested in the petitioner-Trust and that Section 140 of the Transfer of Property Act was not the source of power to transfer land or other immovable property; it was only an enabling provision. The transfer of immovable property was governed under the provisions of the Constitution of Jammu and Kashmir and other laws on the subject. Therefore, merely on the issuance of a Government Order, the Trust could not claim any title with respect to the said properties, as the orders were not followed by execution of necessary deeds in accordance with law. According to the respondents, Government order itself could not change the title of State property. It is stated that the Medical Institute is not confined to only 292.8 Kanals of land, wrongly claimed by the petitioner as Trust property. The campus of the Institute is spread over a vast area of land measuring 977 Kanals, 15 marlas and 158 square feet which is all State owned land.
43. Insofar as the Kashmir Nursing Home situated at Gupkar Road, Srinagar, is concerned, the case of the respondents is that the petitioner-Trust deviated from the object for which it was transferred to it and the conditions of the order too were not fulfilled by the Trust inasmuch as no representation was given to the Government in its management. The order also did not visualize or permit transfer of the property to third party. It is stated that the Government provided an amount of Rs.95 lakhs to the Trust for the renovation of the Nursing Home, but the Trust kept it closed since 1989. It is also stated that the Drug Research Laboratory situated at Moulana Azad Road, Kothibagh, Srinagar, was attached to the Nursing Home for purposes of rendering effective services to the patients of the Nursing Home; therefore, there was no legal authority for raising a shopping complex on the site where Drug Research Laboratory existed. According to the respondents, the contractual agreement enclosed with the writ petition was a sufficient proof that the Trust wanted to give the Nursing Home to a third party for extraneous considerations. According to the respondents, the third party, named in the agreement in question, was a house-wife and happened to be a relative of the petitioner, Dr. Muhammad Ali Matoo, and that fact left no manner of doubt about the mala fide and extraneous consideration that had prompted the transaction in question. Accordingly, the transaction is stated to be illegal and in breach of Government order No.214-ME of 1976 dated 27th August, 1976. It is also stated that accommodation available in Ali Jan Shopping Complex has a huge commercial value and persons occupying the same must have paid huge amounts for the shops as premium which was under investigation. It is also the case of the respondents that, before the issuance of the impugned order, notice was served upon the Trust and a copy of the impugned order was also made available to the petitioner-Trust. Failure on the part of either party to execute a formal deed of transfer would not ipso facto amount to transfer of the property in ownership, or confer title in the properties, in the Trust and that the legal possession / title of the property were all along with the Government. The Clauses of the Trust Deed relied upon by the petitioner-Trust to urge that the Trust had power to lease out its properties could not be a substitute for the Statutes prescribing for the method and mode for vesting of title or interest in immovable properties. According to the respondents, Section 92 of the Code of Civil Procedure is not attracted to the facts and circumstances of the present case as the Government had neither removed any trustee nor appointed new trustees. The Government had also not seized the records of the Trust.
44. As to the execution of agreement between the Government and the Trust, it is stated that the Trust, by misrepresentation of facts, had managed execution of agreement which, on proper examination, was found to be contrary to law as the land in question was never the property of the Trust. According to the respondents, the Trust Act, 1977, relied upon by the petitioner-Trust, has no application to Public Trusts. Allegations of mala fides and discrimination are denied.
45. In the additional affidavit, in addition to what has already been noticed by us hereinabove, it is stated that, immediately after assuming the office of Chief Minister, late Sheikh Muhammad Abdullah and his Cabinet colleagues, who also happened to be trustees of the Trust, contrary to the terms and conditions of the earlier Government orders on the subject as also against the provisions of law governing such transfers, initiated the process of transfer of all the aforesaid properties, including land, on proprietorship basis to the Trust. When in 1976 late Sheikh Muhammad Abdullah was the Chairman of the Trust as also Chief Minister of the State, the Trust had been insisting upon transfer of the properties in question to the Trust on ownership basis. It was decided that, after orders of Cabinet on the proposal of transfer were obtained, the transfer deed, on behalf of the Government, would be signed by Secretary to Government, Revenue Department. The respondents have made reference to various letters written by the petitioner-Trust to the Government, which have already been referred to by us above. Thereafter, according to the respondents, on 19th April, 1978, the Trust addressed another communication to the Revenue Secretary in this behalf and on the same date Government order dated 19th April, 1978 was passed according sanction to the transfer in question. However, after the accord of aforesaid sanction to transfer, no formal transfer, as required under law and rules, had taken place. In this connection, it is stated that, the Chief Minister's Secretariat, on 12th May, 1978, addressed a communication to the Secretary to Government, Revenue Department, requesting him to take immediate action with respect to the absolute transfer of the properties to the Trust. Another communication dated 12th June, 1978 was addressed to the Revenue Secretary on the same lines by the Chief Minister's Secretariat. It is also stated that the official records reveal that in the year 1986 there had been a move in the Revenue Department to rescind Government Order dated 19th April, 1978 as formal deeds of transfer had not been executed. It is also stated that on 24th March, 1998, the Secretary of the Trust was requested to provide a copy of the agreement relating to the transfer of State property to the Trust.
46. Regarding the factum of mutations, it is stated that, though mutations do not create or extinguish title in property yet, after the issuance of the impugned Government order, the entire properties stand mutated in the name of the State by the Revenue Department.
47. In paragraph 11 of the additional affidavit, it is stated that the Government had started construction of a 500-bed Hospital at Soura, Srinagar, prior to the agreement dated 17th December, 1980 entered into between the Government and the Trust which, vide Government order No.18-ME of 1977 dated 18th January, 1977, was renamed as Institute of Medical Sciences, Soura, Srinagar, and declared as a Hospital run by the Government of Jammu and Kashmir in terms of Government order No.36-ME of 1979 dated 1st February, 1979. Even after the execution of the agreement, in terms of Government order No. GD (Adm) 10 of 1986-Health dated 18th March, 1986, the Medical Institute was declared to be a Government Organisation for all intents. The 500-bedded Hospital was merged with the Sher-i-Kashmir Institute of Medical Sciences, Soura, which has all along been fully financed by the Government. Therefore, there was no logic or justification for continuing the trustees in the management of the Institute. It is further stated that, 1997 onwards, maximum number of Members, including Chairman and Vice Chairman, on the Governing Body of the Institute were from one family, including the petitioner and that Dr. Ali Muhammad Matoo pursuant to Government orders No.122-ISM of 1981 dated 8th July, 1981; 137-IMS of 1985 dated 8th November, 1985, had been the Chairman of Standing Academic Committee, Purchase Committee, Senior Selection Committee and, as the decisions regarding policy matters of the Institute were being taken by him in his aforesaid capacities, his removal from the management was necessary.
48. The petitioner-Trust has filed its rejoinder both to the reply affidavit as well as to the additional affidavit. Rejoinder to the reply affidavit is a reiteration of the facts already stated in the writ petition. Rejoinder to the additional affidavit has been filed by Dr. Farooq Abdullah, Chairman of the Trust. In the said rejoinder-affidavit, it is stated that though elaborate details had been narrated in the writ petition yet some facts could not be bought on record as certain records and relevant documents were not available with the petitioner at the time of filing of the writ petition and that, since certain records were made available to the petitioner pursuant to the direction dated 15th October, 2003 passed by this Court, indulgence of the Court has been sought to treat the averments made in the rejoinder affidavit as supplementary affidavit and pleadings therein as part of the writ petition. Petitioner-Trust has stated that the counter affidavit and the additional affidavit filed by the respondents smacked of both administrative and personal malice which had resulted in grave onslaught on the rights of the Trust in particular and trustees in general. The Medical Institute was a joint venture between the Government and the Trust. Sheri-i-Kashmir Hospital and Polyclinic alongwith the land had been under the possession of the Trust. Sher-i-Kashmir Hospital was solely constructed by the Trust from its funds and some other lands which were donated to the Trust by one Shri R. K. Sawhney and by Anant Singh measuring 40 Kanals and 4 marlas and 50 kanals and 15 marlas respectively, was, in fact, utilized for construction of the Sher-i-Kashmir Hospital and rest of the land was donated to the Government for construction of the Medical Institute. Petitioner has appended with the rejoinder copies of Settlement Deeds to show donation of aforesaid land by Shri R. K. Sawhney and Shri Anant Singh as Annexures A1 and A2. However, it is next stated that since the Trust had decided to construct Sher-i-Kashmir Hospital at Soura, as such, for raising funds for its construction, portion of the aforementioned donated land was sold to the Government and money so received was spent by the Trust for construction of the Hospital.
49. Regarding the Drug Research Laboratory building at Maulana Azad Road, Srinagar, it is stated that since the Laboratory was not functioning, so the Trust decided to demolish it and construct a Shopping Plaza there for raising Trust funds to meet the aims and objectives of the Trust. The material of the Drug Research Laboratory building and equipment was auctioned for a consideration of Rs.2.5 lakhs. Since the existing Nursing Home at the time of transfer of the property was woefully inadequate with provision for only eight beds and virtually no modern facilities, the Board of Trustees decided to construct a new Nursing Home and that, vide different Government orders, the respondents sanctioned grant-in-aid in favour of the Trust from time to time, in aggregate, to the tune of Rs.95.00 lakhs in different financial years. Petitioner has appended copies of various such orders with the rejoinder-affidavit. After the completion of the Kashmir Nursing Home in the year 2002, the Trust considered to run the Nursing Home. Since, according to the new guidelines of the Medical Council of India, Trust was required to appoint a significantly greater number of staff with a minimum of 300 employees and as the Trust did not have the personnel and other resources to manage the newly constructed Nursing Home, in light of the new guidelines, the Trustees decided to contract out the management of Kashmir Nursing Home for which different offers were received. It was on the basis of the careful appreciation of the offers so received that the Trust agreed to execute a management agreement with Ms. Sabia Tariq. It is stated that late Sheikh Muhammad Abdullah became Chief Minister of the State of Jammu & Kashmir in February, 1975 whereas the Trust had come into existence in the year 1973 when Syed Mir Qasim was Chief Minister of the State in a Congress Government. He was also a founder trustee of the Trust and, in fact, he and his Government were always convinced about the bona fides of the Trust which was amply demonstrated not only by the role of Mr. Qasim as trustee of the Trust, but also by the Government orders of 1973 and 1974 allotting 292 kanals of land at Soura and Drug research Laboratory and land at Kothibagh to the Trust. It is further stated that, assuming a registered deed was required as a follow-up to the 1978 order in order to complete the transfer of ownership rights to the Trust, the respondents for this reason were not legally justified in holding the 1978 order as bad by virtue of impugned order, when the Trust was not at any point of time informed regarding non-execution of transfer deed, especially when no consideration was to pass on the execution of the proposed deed. In paragraph 7 of the rejoinder affidavit, it is stated that the respondents were drawing an unwarranted inference from the contents of letters dated 12th May, 1978 and 12th June, 1978 from Chief Minister's Secretariat. According to the petitioner, the letters did not make reference to any transfer deed or any other remaining legal formality. They simply requested that the addressee intimate what action was taken in the matter of the transfer of property to the Trust. According to the petitioner-Trust, this is more likely referring to the actual transfer of possession of such properties to the Trust in implementation of the 1978 order, especially since the communications are issued shortly after the date of the 1978 order. Further, in paragraph 8 of the rejoinder affidavit, it is stated that the Trust was not aware that any further actions were needed to complete the transfer of ownership rights as a legal matter following the 1978 order, nor did the Government ever inform the Trust that any such further actions were needed. Regarding the issuance of letter dated 24th March, 1998 by the Joint Director, (P&S), Health and Medical Education Department, requesting for copy of agreement, the petitioner denies to have received the same. In this connection, it is further stated that the respondents have repeatedly implied that the Trust received favourable treatment on account of its Chairman being the Chief Minister of the State at various times. If this were indeed the case, it is highly surprising that between 1998, when the letter was allegedly sent to the Trust, and 2002, the Government of the said Chief Minister did not have the requisite formalities completed and, that the most reasonable inference available is that the Government did not see any deficiency in the ownership rights of the Trust in the subject property. The statement of respondents that 500-bedded Hospital preceded the execution of the agreement dated 17th December, 1980 is denied for want of knowledge. However, it is stated that even if so, the agreement was intended to memorialize and formalize the joint venture between the Government and the Trust. As to the declaration of the Medical Institute as a Hospital run by the Government, it is stated that all actions prior to 17th December, 1980 stood superseded by the agreement. According to the petitioner, the agreement accorded the Government control over the operations of the Medical Institute, since it had a majority on the Governing Body as well as on every Committee and Sub-committee. It is further stated that under the agreement, Government had power to constitute new committees, frame the rules under which they would function and determine their composition, so as to prevent any alleged mismanagement. It had chosen not to do so because the impugned order was motivated by mala fide desire to settle political scores.
50. We have heard learned counsel for the parties at great length and perused the record of the case. We have been taken through the documents brought on record. The learned Advocate General also produced certain original record before the Court for our perusal.
51. It is observed at the out-set that, though the issue before us is not of any political nature yet, during the course of arguments, to some extent, we experienced intonations in arguments aimed at expanding the contours of the controversy. We shall not aggravate, by unnecessary allusions, any of the features of the conduct of the authorities at the helm of affairs demonstrated during the period the deal relating to the transfer of these public properties was struck with the Trust around the year 1978. We shall confine our judgment only to the facts and propositions canvassed before us, and the documents or record referred, which only relate to and concern the determination of the core issue of the legality or otherwise of the impugned order.
52. There is no dispute that the impugned order is a speaking order and this Court is required only to test the reasons supplied therein on the touch stone of law in light of the underlying facts. In that regard, it becomes imperative to analyse the reasons disclosed in the impugned Government order itself. But, since we have not issued notice to respondents 5 to 8, against whom mala fides have been alleged, we would like to advert to this point first.
53. Learned counsel for the petitioner-Trust vehemently argued that the impugned order was mala fide in nature and, since allegations in that regard were made in the petition against respondents 5 to 8, it was necessary that the Court issue notice to them. According to them, unless notice was issued and answer thereto was obtained from the concerned respondents, the allegations remained unrebutted and the Court in such circumstances would have no option but to accept the allegations of mala fides as true. Referring to the averments made in this regard in the writ petition as well as in the Rejoinder-affidavit as also to the news item appearing in local English daily Excelsior in its issue dated July 23, 2003, it was argued that the respondents have acted in hot haste to satisfy their personal and private grudge and wreak vengeance against late Sheikh Muhammad Abdullah's family. It was further argued that the respondents were motivated by the desire to portray their political adversaries, namely, Dr. Farooq Abdullah and Mr. Omar Abdullah and their family in poor light, for political gains by creating the impression that they misused the assets of the public Trust. It was argued that, while no action was taken against the petitioner-Trust for 25 years after the issuance of the 1978 order, the impugned order was passed within months of the advent of the new government in the State in November, 2002, so much so, in their hurry, even the Cabinet meeting was not held. Inviting the attention of this Court to paragraphs 5 and 10 of the reply-affidavit and paragraphs 3 and 13 of the additional affidavit filed by the respondents, it was argued that the contents thereof sufficiently demonstrated the mala fides of respondents 5 to 8 against late Sheikh Muhammad Abdullah and Dr. Muhammad Ali Matoo, brother-in-law of Dr. Farooq Abdullah. In this connection, the learned counsel have relied upon and cited Express Newspapers Pvt. Ltd v. Union of India (1986)1 SCC 133.
54. Mala fides bad faith is a concept concerning intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility, such, as malice, dishonesty, fraud, personal ill will etc., aimed at wreaking vengeance or harming any one in any manner. Bad faith is, therefore, related to the state of mind of the person exercising the power. It is, obviously, difficult for a person to establish or prove that what was conceived or working in the mind of an authority while exercising a discretion or power. However, such bad faith can be generalized by furnishing factual instances with particularities, describing the cause or causes of hostility, leading to a reasonable and inescapable conclusion that the exercise of power or discretion was the confluence of such extraneous considerations.. When the ground of mala fides is supported by such necessary factual details and instances, these serve as statements of evidence in respect of which the Court, if prima facie, satisfied about their sufficiency, has to seek an answer from the concerned authority or authorities. The allegations of mala fide must be definite and should appear to be reasonably probable. When the allegations are vague, bald and bereft of any such details, the Court is not bound to seek reply from the concerned authority, especially when the authorities concerned are none less than the Chief Minister of a State and his other Cabinet colleagues. Charges of mala fides are always personal and are not to be accepted so lightly against such dignitaries, holding high positions in the State. It is settled law that he who seeks to invalidate or nullify any act or order must establish the charge of bad faith. In this connection, I quote hereunder the observations of the Supreme Court in Partap Singh v State of Punjab AIR 1964 SC 72 (Majority view judgment delivered by His lordship Ayyangar J):
8. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case, though this may some times be done [See Edgington v. Fitzmaurice, (1884) 29 Ch D 459]. The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. We must, however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts.
55. In paragraph 10 of the judgment, it has been further observed as under:
10. Before entering on a discussion of the question whether the appellant has established that the action of Government was vitiated by mala fides, we consider it pertinent to make a few preliminary observations. In considering the evidence, we have kept in view the high position which the Chief Minister holds in the State and are conscious of the fact that charges of personal nature made against such a dignitary are not to be lightly accepted. We have also borne in mind that charges of personal hostility are easily and very often made Merely, on the saying that the exercise is motivated by mala fides to wreak vengeance or to settle scores or to defame any one, without any definite allegations supported by necessary factual details, the ground of mala fides does not bear any probabilities and, therefore, cannot, even prima facie, be taken into consideration.
56. In Express Newspapers Pvt. Ltd v. Union of India (supra), the Supreme Court noticed that the petitioners had pleaded the facts with sufficient degree of particularity tending to show that the notices impugned therein were wholly mala fide and politically motivated. The Supreme Court found that the notices were really intended and meant to bring about the stoppage of the publication of the Indian Express which had throughout been critical of the Government in power whenever it went wrong on a matter of policy or in principle. In that case, the Supreme Court was of the view that the respondents had used their power for a purpose other than the one for which the power was conferred as also for a purpose other than that which found place in the order. The Supreme Court further observed as under:
110. Fraud on power voids the order, if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with a best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Partap Singh v. State of Punjab. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power
57. In the present case, the allegations of mala fides are contained in paragraph 15 of the writ petition. The relevant portion is quoted hereunder:
Through out the political career of Sher-i-Kashmir Sheikh Muhammad Abdullah, Mufti Muhammad Syeed, the present Chief Minister of the State of J&K, always harboured a political grudge against the family in general and Sher-i-Kashmir Sheikh Muhammad Abdullah and his son, Dr. Farooq Abdullah in particular. Immediately after taking over as Chief Minister of the State, it became known that Mufti Muhammad Syeed, respondent No.5 herein and his Government were intent on ending what they alleged was the monopoly of the Sheikh family in the State of Jammu & Kashmir. Respondent No.5 to 8 in particular and the rest Government in general began to usurp the assets of different trusts established as charitable and religious trusts, and level baseless allegations aimed solely at defaming the family of Sheikh Muhammad Abdullah in particular and people associated with the family in general.
58. In paragraph 16 of the petition, reference is made to a news item that appeared in English daily Excelsior captioned Nursing Home, Ali Jan Plaza being taken over Mufti Government decides to end Sheikh Family's monopoly over SKIMS, SKMIT. It is further stated in the paragraph as under:
It further reported that three senior members of the Mufti Government (respondents 6 to 8) had held a three-hour long meeting, which was also attended by Chief Secretary Dr. S. S. Biloria, Principal Secretary GAD, Mr. N. R. Gupta and Commissioner-Secretary Law. After hectic deliberations they met Chief Minister Mufti Sayeed at his official residence where it was decided to remove Dr. Muhammad Ali Matoo (petitioner herein) from position he holds in SDMIT and SKIMS with a direction to the District administration to take over the Kashmir Nursing Home and other SKMIT assets The Government of J&K in general and the respondent No.5 to 8 in particular have launched a vilification campaign against the most respected family of Kashmir by quoting and referring to wrong facts thereby trying to mislead the public at large. They being in Government have all resources to place an iron curtain on the true and actual facts. The entire exercise is a vindictive, politically motivated, colourable exercise of power, biased, discriminatory and against the principles of natural justice and provisions of the Trusts Act 1977 and provisions of Civil Procedure Code.
59. Paragraph 25 of the writ petition is reproduced hereunder:
The mala fides of the respondents are evident if the events reported in the news report in the `Excelsior' (Annexure D) are juxtaposed with references in the impugned order. The receipt in the offices of `several Cabinet Ministers' triggered the actions of the respondents on the night of July 22, 2003 on the same day, July 22, of invitation letters to the inauguration ceremony of the newly constructed Kashmir Nursing Home at Gupkar Road, Srinagar. The impugned order makes reference to a `cabinet decision No.119/Cir. Dated 22.7.2003. However, there is no report of any Cabinet meeting in the `Excelsior' report of July 23 (Annexure D), or subsequent reports in the media only a reference to meeting among the Revenue Minister, the Health and Medical Education Minister and the Finance and Law Minister, also attended by certain officials, which was reportedly followed by a meeting with the Chief Minister (Respondent No.5) at his residence. In fact, given that the invitations were delivered only on July 22 and the inauguration was due the next day, the respondents wished to seize the opportunity to take over the premises of the nursing home before it became fully operational became occupied by patients, doctors and staff following inauguration. In light of their objective, time was of the essence and the Cabinet never met. The reference to a so-called `Cabinet Decision' is nothing more than hastily arranged window-dressing for executive fiat. In their haste, the respondents also did not have time to devote much thought to whether it is appropriate for the Health and Medical Education Department, through its Secretary, to issue an order such as the impugned order that seeks to rescind the earlier orders of 1976 and 1978 that were appropriately issued bys the Revenue Department through its Secretary, since they related to the transfer of State-owned property.
60. Again in paragraph 26 (h) of the writ petition, the following has been stated:
That the impugned order is an arbitrary and colorable exercise of power, politically motivated to settle scores, including by way of a disinformation campaign launched by the respondents in general and respondents No.5 to 8 in particular to defame the family of Sheikh Muhammad Abdullah and Dr. Farooq Abdullah by levelling false and frivolous allegations. The Trust has a total of 11 trustees out of which only Dr. Muhammad Ali Matoo happens to be the son-in-law of the late Sheikh Muhammad Abdullah. No other trustee is related to the Abdullahs, such that the trust is held by independent trustees as well. It is inaccurate and unfair to grand the Trust as a family affair of the Abdullahs.
61. In paragraph 26(k) the following is stated:
The State Cabinet has in fact never met. The impugned order has been issued on the instructions and under the directions of the Respondent No.5. Respondent No. 5 to 8 have in fact conspired to take over the Trust and Trust properties illegally and expropriate the trust on account of alleged links between the Trust and the family of Sheikh Muhammad Abdullah and the fact that it was set up during the tenure of Sheikh Muhammad Abdullah as Chief Minister, in utter violation of the law.
62. In the rejoinder-affidavit filed to the additional affidavit, support is sought to be derived from the contents of additional affidavit filed by the respondents to show mala fides of the respondents behind the issuance of the impugned order.
63. As is axiomatic from the above quoted passages from the writ petition and the rejoinder-affidavit, the petitioner has made allegations, without even furnishing, quoting, referring or citing a single instance or evidence of hostility, malice or animosity against any of the four respondents which could lead, or tend to lead, to a reasonable probability that the impugned order was politically motivated or was the outcome of any malice on their part against the petitioner or any of his relatives or that it was an act aimed at wreaking vengeance against late Sheikh Muhammad Abdullah or any of his relatives or associates. Not a single definite allegation has been made. The allegations are general in nature and easy flowing expressions.
64. Great emphasis was laid on the Newspaper report of daily Excelsior that appeared in its issue dated 23rd July, 2003 to establish the mala fides. Newspaper reports cannot be a substitute for definite allegations. Allegations of mala fides must be deducible from proved facts, as observed by the Supreme Court in Partap Singh v State of Punjab (supra).
65. Malice or ill-will cannot be gathered in abstract; it generates and sprouts from some kind of hostility between two persons. That is, there is always a root cause or causes underlying a malice or ill-will. While describing those root causes with particularity, a person, pleading mala fides, may cite or quote other material supporting the facts that underlie the root causes, including Newspaper reports. The Newspaper reports, therefore, can, at best, be supporting evidence to definite allegations and proved facts. Picking up newspaper reports and making them the basis for alleging mala fides is not sufficient to ascribe motives. Newspaper reports are generally subjective opinions of Reporters, unless specifically attributed to some one at the helm of affairs. In the present case, the petitioner-Trust has sought to make out the ground of mala fides on the basis of News item appearing in the local English daily a day after the issuance of the impugned order which carried the caption Mufti Government decides to end Sheikh Family's monopoly over SKIMS, SKMIT. The words contained in the caption of the News item are not attributed to any of the respondents 5 to 8, and, therefore, respondents need not be called to answer something that is not attributed to them, nor can they be held liable or responsible for that. In any case, the allegation of the petitioner is that no Cabinet Meeting was convened before issuing the impugned order. The News item relied upon by the petitioner itself says that the Chief Minister, Mufti Mohammad Sayeed, had hectic consultations with his Cabinet colleagues and top bureaucrats in this behalf. Not only that, the impugned order is shown to have been issued pursuant to Cabinet Decision No.119/Cir dated 22nd July, 2003. There is no material, whatsoever, brought on record warrant such inference that, before issuing the impugned order, there was no Cabinet meet. In fact, going by the pleadings of the petitioner-Trust, it is made out that the matter was considered for the whole day on 22nd July, 2003 by Cabinet Ministers. Similarly, the argument, that the factual averments contained in the reply or additional affidavit, filed by the respondents, not only support the allegations of mala fides, but themselves constitute mala fide, is again untenable. The respondents have added nothing to the record which they have relied upon in these two returns. Further, these returns have been filed by respondents other than respondents 5 to 8. Therefore, nothing contained in these returns can be attributed to the respondents against whom mala fides are alleged.
66. One of the allegations of the petitioner-Trust is that, immediately after taking over as Chief Minister of the State, it became known that Mufti Muhammad Syeed, respondent No.5 herein, and his Government were intent on ending what they alleged was the monopoly of the Sheikh family in the State of Jammu & Kashmir. Respondent No.5 to 8 in particular and the rest Government in general began to usurp the assets of different trusts established as charitable and religious trusts, and level baseless allegations aimed solely at defaming the family of Sheikh Muhammad Abdullah in particular and people associated with the family in general. These allegations are again bereft of any material particulars. In fact, the original record produced before us reveals that, on the ground of non-observance of law governing the subject-matter and allied factors, the matter relating to revocation / rescinding of the Government order dated 19th April, 1978 has been under consideration of the Government since 1986. At one stage even the petitioner-Trust had requested the Government to take over the Kashmir Nursing Home as it was not able to maintain the same. Few of the statements of fact contained in the impugned order quoted earlier may be reiterated here wherein it is stated that:
i) in the year 1995-96, the management of the Trust approached the Government for taking over the Kashmir Nursing Home as the Trust was not able to maintain the Nursing Home because of the paucity of the funds;
ii) in a meeting held under the chairmanship of the then Chief Minister on June 4, 1997, it was decided to take over the aforesaid Nursing Home by the Government and to run it on the analogy of Col. Chopra Nursing Home of Government Medical College, Jammu (The Chief Minister on June 4, 1997 was none other than Dr. Farooq Abdullah, who has sworn in the rejoinder-affidavit to the additional affidavit);
iii) vide Government Order No.695-HME of 1997 dated 6.8.1997, the Government sanctioned an amount of Rs.50.00 Lakhs as Grant-in-Aid in favour of the Trust for completion of the new building coming up in the premises of Kashmir Nursing Home;
iv) the matter remained pending and, resultantly, the Kashmir Nursing Home remained closed;
v) the matter regarding transfer of land effected vide aforesaid Government order was discussed in a meeting by Commissioner / Secretary, Health & Medical Education, with the then Law Secretary and it was opined that-
`the transfer of landed property with structures thereon though done twice had been done only through simple Government order which ab initio is violative of the State laws. The property was required to have been transferred under the Transfer of Property Act and further conditions defined too, stating whether this is a lease, perpetual or a 99 year lease etc. Therefore, the simplest way to take back the property so transferred to the said Trust is by simply rescinding the Government orders issued in this behalf'.
vi) Shri R. K. Raina, Director, Madr-e-Meharban Institute of Health Services, Jammu, through a communication dated 18.5.2003 addressed to Commissioner / Secretary Health & ME Department, sought the permission of the Government for opening a branch of Madr-e-Meharban Institute of Health Sciences, Jammu, at Srinagar;
vii) Whereas the said Dr. R. K. Raina stated in the aforesaid communication that the Trust had agreed, in principle, to lease out the premises of the Kashmir Nursing Home at Gupkar Road to the aforesaid Institute for utilizing the Nursing Home both for patient care as well as for training of para-medical personnel; and
viii) that the Trust had decided to transfer the said Kashmir Nursing Home to a third party in violation of the Government order No.214-HME of 1976 dated 27.8.1976 and without bringing it in the notice of the Government.
67. Petitioner-Trust has not refuted any of the above statements. Even Dr. Farooq Abdullah, while swearing in the rejoinder affidavit to the additional affidavit filed by the respondents, has not controverted the facts emerging from the official records maintained in the ordinary course of governmental business during his tenure of Chief Ministership. Therefore, it is not a case that the idea of rescinding the order of 1978 had dawned upon the Government abruptly and suddenly on the morning of 22nd July, 2003, or that, respondents 5 to 8 had started the action immediately after they had assumed power. The receipt of invitation cards issued by the petitioner-Trust referred to in the petition might have only accelerated the process and obviously so, because if the property had gone into the hands of a third party, that would make the process of its recovery somewhat cumbersome. No mala fides can be read in that conduct of the Government, when it claims that the property has not vested in the petitioner-Trust or that, in relation to the property in question, the Trust had decided to act contrary to the object for which the property was transferred to it.
68. Further, the impugned order is shown to have been issued in the interests of public at large, patient care and for managing the affairs of the Medical Institute and the properties more professionally and efficiently. It is the admitted case of the petitioner-Trust that it was neither in a position to run the Drug Research Laboratory nor the Kashmir Nursing Home, the two very small units concerning the patient care. This fact by itself is a sufficient indicator that its representatives were, and could not be, in any way, better places or in a position to play any effective, muchless the desired role in the affairs of the Medical Institute. In fact, material brought on record positively suggests that the association of the trust representatives with the affairs of the Medical Institute had resulted in failure to achieve the object for which it was established by the Government at a huge cost. In order to ameliorate the over all situation and salvage the damage already done, if the Government has taken the impugned decision, no fraud or fraudulent motive can be read into it, nor any fraud or any such motive has been established to be underlying the action.
69. It may be reiterated here that issuance of notice to respondents 5 to 8 was deferred by the learned Single Judge vide order dated Ist September, 2003 on the ground that the material and record on the basis of which mala fides were alleged was not found on record. Thereafter, we afforded an opportunity to the petitioner to file returns to the additional affidavit of the respondents. They were given the liberty to obtain copies of all such documents and record they needed to effectively put up their case before us and, in fact, they obtained copies of voluminous records from the Trust Office through the Deputy Registrar, Judicial, of this Court at Srinagar, the inventory whereof has been brought on record. It took the Deputy Registrar nine complete days, from 16th to 24th October, 2003, to make copies of the record and provide the same to the petitioner's representatives. But no material, whatsoever, to establish the mala fides, was brought on record of this case by the petitioner. The only inference available is that the petitioner did not have any material or record to make definite allegations, establishing the same being altogether remote. In view of the above, the allegations of mala fides being vague, indefinite and without any material particulars, the ground is not made out and, consequently, a case for issuance of notice to respondents 5 to 8 is held to be not made out.
70. Now, let me examine the reasons supplied in the impugned order which resulted in the Government's decision to rescind the 1978 order. The reasons contained in the order are:
i) that pursuant to Government order No.214-ME of 1976 dated 27th August, 1976, the Trust had to provide adequate representation to the Government on the Management Committee of Kashmir Nursing Home which it failed to do;
ii) that Kashmir Nursing Home had to be exclusively used for maintaining a Nursing Home by the Trust, which it failed to do;
iii) that no formal deed of transfer was executed between the State and the Trust in respect of the properties pursuant to Government Order No. Rev (NDK) 90 of 1978 dated 19th April, 1978 to effectuate the transfer. Therefore, the properties continued to be owned and legally possessed by the Government;
iv) that the Trust had approached the Government for taking over the Kashmir Nursing Home in the year 1995-96 as it was unable to maintain it;
v) that the matter concerning the rescinding of the 1978 order was under consideration since 1986, since no formal transfer had taken place;
vi) that the Trust had decided to create third party interest in the Kashmir Nursing Home at the cost of Government and public at large;
vii) that the purported transfer of land vide Government order dated 19th April, 1978 was also without any legal authority and in disregard to the provisions of law;
viii) that Government had received numerous complainants about the running and management of Sher-i-Kashmir Institute of Medical Sciences, Soura, and employees of the Institute have held demonstrations demanding removal of control on the Institute by the Trust;
ix) that the Institute was made on the State land and maintained exclusively by Government funds;
x) that the Trust has converted the Drug Research Laboratory at Moulana Azad Road, Kothibagh, from Drug Research Laboratory into a commercial complex and transferred the properties to third parties, a property use violative of the Government order and purpose for which it was transferred;
xi) that the Trust has committed various breaches despite notices and warnings given to it;
xii) that it is in the interest of public at large, patient care and for managing the affairs of the Institutes and properties more professionally and efficiently that 1978 order is rescinded.
71. The case of the petitioner-Trust, as made out in paragraph 2 of the writ petition, is that the Government order dated 27th August, 1976, where under the Kashmir Nursing Home was transferred to the Trust, lost its significance when Government passed order dated 19th April, 1978, transferring all the four properties, mentioned therein, to the Trust on ownership basis. Therefore, the Trust was not in breach of any conditions mentioned in the 1976 order. It was argued by learned counsel for the petitioner-Trust that the 1978 order superseded all previous orders and transferred title in the properties to the petitioner-Trust. Therefore, no further legal requirements remained to be fulfilled for the transfer of title in the properties in question to the Trust. Consequently, orders passed earlier to 1978 order could not be relied upon for any purpose by the respondents. Learned counsel submitted that by virtue of the impugned order, Government has taken over possession of the properties which had vested in them as owners thereof, therefore, the said order cannot be allowed to stand. On the other hand, Mr. Naik, learned Advocate General, argued that the 1978 order only accorded sanction to the transfer of these properties to the Trust. According to him, sanction means only an approval and, in any case, no transfer takes place unless a registered instrument of transfer, in accordance with the law, is executed. Since, the 1978 order was not followed by a deed of transfer, the properties in question did not vest in the petitioner-Trust; the State Government continued to be its owner and in legal possession thereof. The learned Advocate General argued that the executive power of the State to grant any State property flows from Section 121 of the Constitution of Jammu and Kashmir, but this power has to be exercised subject to the law made by the State Legislature. He submitted that it is inherent in every State law that property in the State of Jammu and Kashmir cannot be transferred in favour of a non-permanent resident of the State. Since the petitioner-Trust is a non-juristic person and, therefore, a non-permanent resident, no transfer of immovable property could be made in its favour. The learned counsel appearing for the parties have drawn our attention to various provisions of the Transfer of Property Act, Registration Act and the Land Grants Act, to canvass the legal import of the 1978 order.
72. The most vital question that arises for consideration, therefore, is whether Government order dated 19th April, 1978 has vested any title or interest in the petitioner-Trust?
73. Learned counsel for the parties have taken us through the provisions of the relevant laws and we proceed to determine the above question.
74. Section 121 of the Constitution of Jammu and Kashmir enshrines the executive power of the State to carry on trade etc. It reads as under:
(1) The executive power of the State shall extend, subject to any law made by the State Legislature, to the carrying on of any trade or business, and to the grant, sale, disposition or mortgage of any property held for the purposes of the State, and to the purchase or acquisition of property for those purposes and to the making of contracts.
(2) All property acquired for the purposes of the State shall vest in the State.
75. A bare perusal of the aforesaid provision of the Constitution makes it clear that executive powers of the State to grant, sell, dispose or mortgage any property held for the purposes of the State and to the making of contracts has to be exercised only subject to the law made by the State Legislature. This is the mandate of the Constitution and there is no escape root. Any order of grant, sale, disposition or mortgage, made by the State, not conforming to the aforesaid mandate of the Constitution, i.e., not in accordance with the law made by the State Legislature, will not constitute valid or legal transfer. Once the order becomes invalid or illegal, the transaction, if any, would be void abini-tio and no right, title or interest can be said to have vested in a party in whose favour the order was passed.
76. The Jammu and Kashmir Transfer of Property Act, 1977 Smvt. recognises several modes of transfer of property, namely, sale, lease, mortgage, gift or exchange. However, another mode of transfer of immovable property, as envisaged by the Constitution, i.e., grant, is governed by the Jammu and Kashmir Land Grants Act, 1960 (hereinafter referred to as the Land Grants Act) to which I shall refer a bit later. There are certain conditions contained in the Transfer of Property Act to the transfer of immovable property contained, inter alia, in Section 138 of the Transfer of Property Act which reads as under:
138. Transfer of immovable property after the registration. (1) No transfer of immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing registered and the registration thereof has been completed in accordance with sub-section (3) of section 61 of the Registration Act, 1977.
(2) No Court shall entertain a suit for pre-emption in respect of transfer of any such immovable property unless the transfer complies with the provision of sub-section (1).
(3) No person shall take possession of, or commence to build or build on, any land in the Province of Kashmir which has been transferred or has been contracted to be transferred to him unless and until such transfer becomes valid under the provision of sub-section (1).
(4) No person who has obtained a transfer of immovable property referred to in sub-section (1) shall apply for and obtain from any Revenue or Settlement Officer or Court any alteration in any existing entry in any Settlement Record or paper, unless such person produces before such officer or Court a duly executed registered instrument, the registration whereof has been completed in the manner specified in sub-section (1).
And no such officer or Court shall alter or cause to be altered any such entry except upon the production of an instrument registered in the aforesaid manner.
Provided that nothing in this section applies to a lease of agricultural land for one year or to a lease of any other land for a period not exceeding seven years;
Provided also that nothing in sub-section (3) and (4) shall be deemed to apply to transfer by will or by any rule of inestate succession or by the operation of the law of survivorship.
77. As is seen from the opening words of the aforesaid provision of the Transfer of Property Act, no transfer of immovable property shall be valid unless and until it is in writing and registered in accordance with sub-section (3) of Section 61 of the Registration Act. Not only that, there is a legal bar on taking possession of, commencing construction on, entertaining suits for pre-emption with respect to any such land unless and until the contemplated transfer is in writing and the document is registered in accordance with sub-section (3) of Section 61 of the Registration Act. Further, there is a legal bar on obtaining or effecting alteration of any existing entries in any Settlement Record or paper unless a duly executed registered instrument has been produced before the concerned authority. However, there is an exception provided in Section 138 of the Transfer of Property Act itself, when it says except in a case governed by any special law. Meaning thereby that this requirement of law shall not be applicable to individual cases governed by special law. In all other cases, there has to be a written instrument with regard to transfer of immovable property and that instrument has to be got registered under sub-section (3) of Section 61 of the Registration Act.
78. However, in the State of Jammu and Kashmir, immovable properties cannot be transferred to non-permanent residents of the State. There is no dispute with regard to that legal position. Nevertheless, there is an exception provided by law in that respect in the Transfer of Property Act and the Land Grants Act. In the Transfer of Property Act, the exception, as mentioned above, is provided in Section 140 thereof. It is extracted below:
140. Exemptions of certain instrument from Restriction imposed on transfer of immovable property. Nothing contained in Irshad dated 29th Maghar, 1943 or any law, rule, order, notification, regulation, hidayat, ailan, circular, robkar, yadasht, irshad, State Council resolution or any other instrument having the force of law prohibiting or restricting the transfer of immovable property in favour of a person who is not a permanent resident of the State shall apply to:
(a)
(b)
(c) a transfer of immovable property in favour of Sher-i-Kashmir National Medical Institute Trust, Srinagar.
79. As is clear from the wording of the provision, it only provides an exemption from the restrictions imposed, prohibiting or restricting the transfer of immovable property in favour of a person who is not a permanent resident of the State in respect of individual cases specified therein. Therefore, this provision only enables the State to transfer immovable properties in favour of non-State subjects enumerated therein, which act is otherwise prohibited by law. Clause (c) was enacted by Act No. IX of 1976, namely, Transfer of Property (Amendment) Act, 1976. Prior to the aforesaid enactment, the State could not make transfer of immovable property in favour of the petitioner-Trust. This provision was enacted solely to enable the Government to transfer immovable property in the State to the Sher-i-Kashmir National Medical Institute Trust. This provision of the law does not exempt any other mandatory requirement of law contained in the Transfer of Property Act, including Section 138 thereof, which provides that no transfer of immovable property shall be valid unless and until it is in writing and the instrument of transfer is registered. Clause (c) of Section 140 of the Transfer of Property Act does not prescribe the mode of transfer. The mode of transfer is provided by other provisions of the Transfer of Property Act, depending upon the nature of transfer such as sale, gift, lease, mortgage.
80. Admittedly, the 1978 order has been issued in exercise of powers conferred by clause (c) of Section 140 of the Transfer of Property Act, 1977 Smvt, seeking to transfer the properties in question to the petitioner-Trust as a donation. Donation means `the transfer of ownership as a free gift' (The New Shorter Oxford English Dictionary, volume 1 by Lesley Brown). It is nobody's case that the 1978 order made a sale or mortgage in favour of the petitioner-Trust. Since, admittedly, there has been no consideration on account of the transfer, it only constitutes a gift. Chapter VII of the Transfer of Property Act is relates to Gifts. Section 123 of the aforesaid Act under Chapter VII provides as under:
123. Transfer how effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
Explanation. The word `attest' has the same meaning in this section as in section 59.
81. The law thus provides that gift in respect of immovable property has to be by a written and registered instrument. There is no exception or escape root provided by law in this regard.
82. Then there is Section 17 of the Registration Act, 1977 (1920 AD) contained in Part III Of Registerable Documents. It is extracted below:
17. Documents of which registration is compulsory. (1) The following documents shall be registered, namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d)
(e)
(f)
(g)
(h) (2) Noting in clauses (b) and (c) of sub-section (1) applies to
(i) any composition deed;
(ii)
(iv)
(v)
(vi)...
(vii) any grant of immovable property by Government;
83. It is thus seen that registration of gifts and other non-testamentary instruments purporting or operating to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property have to be compulsorily registered. However, there is exception to the application of clause (b) of Section 17 of the Registration Act to the grant of immovable property by the Government.
84. The subject of grant of immovable property by the Government is governed by the Jammu and Kashmir Land Gants Act, 1960 (Act No.XXXVIII of 1960). The object of the Act is to provide for grant of lands by Government. Learned counsel for the petitioner-Trust contended that transfer of land by 1978 order has to be read as a grant under Section 10 of the Land Grants Act notwithstanding that the order has been shown to have been issued in exercise of powers conferred under Section 140(c) of the Transfer of Property Act. Let us notice the relevant provisions of the Land Grants Act.
85. Section 3(b) defines land as meaning land which belongs to Government and includes buildings standing thereon. Section 4 deals with lease of land by the Government. It reads as under:
4. Lease of Land. The Government shall determine the extent of land available for building purposes and may grant land on lease for such purposes on such conditions, including those relating to premium and ground rent as may be prescribed;
Provided that no such land shall be granted on lease to a person who is not a permanent resident of the State; except where the Government for reasons to be recorded relaxes this restriction in the interest of industrial and commercial development;
Provided further that not more than one plot of land shall be granted on lease to a single family for residential purposes;
Provided also that no plot of land granted on lease for residential purposes shall exceed two Kanals in area;
Provided, however, that no deed transferring the rights of such a lessee to any one else shall be admitted to registration, unless a certified copy of the Government Order sanctioning such a transfer of the lease is produced before the Registering Authority;
Provided also that in the case of land granted on lease to a religious, charitable and such educational institute as may be specified by the Government no premium shall be charged under this Act.
86. The aforesaid provision makes it unambiguously clear that grant of land can be made only on lease basis; secondly, that no grant of land on lease can be made in favour of a non-permanent resident of the Jammu and Kashmir State. However, the Government is empowered to relax this restriction only in the interests of industrial and commercial development in the State and, in doing so, the Government has also to record reasons. This is the only provision in the Land Grants Act whereby Government can make grant of land to a non-permanent resident of the State. Section 10 of the Act, relied upon by the learned counsel for the petitioner, is quoted below:
10. Other modes of grant or transfer. Nothing contained in this Act shall preclude or be deemed ever to have precluded the Government from making any grant or other transfer of land or any interest therein other than a lease under this Act.
87. Under the aforesaid provision of the Act, Government is not precluded from making any grant or other transfer of land or any interest therein other than a lease under the Act. In other words, though, under Land Grants Act, primarily grant of land can be made only on lease basis, nevertheless the Government can grant, or transfer property or any interest therein in any other recognised mode, say even a gift. But Section 10 does not authorise, permit or empower the Government to make such grant or transfer of property or any interest therein other than lease to a non-permanent resident of the State. The exception and relaxation is provided only with respect to lease under Section 4 of the Act, that too in the interest of industrial and commercial development and for reasons to be recorded. Section 10 does not provide for such an exception and/ or relaxation. Therefore, no grant of land or even other transfer can be made to a non-permanent resident of the State under Section 10 of the Act.
88. It was next argued by learned counsel for the petitioner-Trust that since, by virtue of Clause (c) of Section 140 of the Transfer of Property Act, the petitioner-Trust stands already accorded an exemption by a legislative enactment, that exemption has to be read together with Section 10 of the Land Grants Act. I am unable to accept this proposition. That exemption or exception has been made in respect of the petitioner-Trust only vis-a-vis the provisions of the Transfer of Property Act. That exemption cannot be imported into or read in Land Grants Act. Even otherwise, that course is excluded by the Land Grants Act itself. In this connection, reference is made to Section 11 of the Land Grants Act, which reads as under:
Transfer of Property Act, Svt. 1977 not to apply to Government grants: - Nothing contained in the Transfer of Property Act, Svt. 1977 shall apply or be deemed ever to have applied to any grant or other transfer of land or any interest therein heretofore made or hereafter to be made by or on behalf of the Government to or in favour of any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
89. The aforesaid provision in clear terms excludes the application of all the provisions contained in the Transfer of Property Act to any grant or other transfer of land or any interest therein made on behalf of Government, as if the Transfer of Property Act had not been passed.. Consequently, the exemption contained in Clause (c) of Section 140 of the Transfer of Property Act cannot be read into Section 10 of the Land Grants Act. In that view of the matter, the 1978 order cannot be said to have been passed under the Land Grants Act. Consequently, the donation of the property made in terms of that Government order cannot be treated as a grant by the Government as would be excluded from the application of clauses (b) and (c) of Section 17 of the Registration Act.
90. Learned counsel for the petitioner-Trust argued that Clause (c) of Section 140 of the Transfer of Property Act is worded just as broadly as Section 11 of the Jammu and Kashmir Land Grants Act and purports to apply irrespective of all other laws, therefore, there is a conflict between Section 140(c) of the Transfer of Property Act and Section 11 of the Land Grants Act and that the statutes that conflict must be interpreted harmoniously with each other and the statute that is later in point of time must prevail. It was further argued that Section 140(c) of the Transfer of Property Act was enacted only to make the Trust eligible to receive a grant of immoveable property from the Government and not to repeal Section 11 of the Land Grants Act. Therefore, in the case of a government grant of immovable property to the Trust, the application of both the above provisions must be preserved. According to the learned counsel, interpreting the two conflicting statues in harmony with each other, the correct interpretation is that Section 140(c) of the Transfer of Property Act qualifies Section 11 of the Land Grants Act only insofar as it makes the Trust eligible to receive a government grant. The learned counsel submitted that, while interpreting Section 140(c), this Court has to keep in mind the legislative intent behind its enactment.
91. The arguments put forth by the learned counsel for the petitioner-Trust are misconceived and untenable. I do not see a conflict between the two provisions of law, i.e. Clause (c) of Section 140 of the Transfer of Property Act and Section 11 of the Land Grants Act. As regards the first argument, it would be suffice to say that Section 140 of the Transfer of Property Act only carves out an exception and exemption to the transfer of immovable property in favour of the individual non-permanent residents of the State mentioned in that section. The restriction or prohibition on such transfer is not by virtue of the Transfer of Property Act. It is in pursuance of Section 4 of Alienation of Land Act, 1995 Svt. (1938 AD). Section 140 of the Transfer of Property Act does not exclude all other laws in so far as other requirements and restrictions contained therein are concerned, for instance requirement of compulsory registration. On the other hand, Sections 10 and 11 of the Land Grants Act do not provide for any such exception or exemption as contained in Section 140 of the Transfer of Property Act. Therefore, whereas in pursuance of Section 140 of the Transfer of Property Act, immovable property can be transferred in favour of the non-permanent residents of the State mentioned therein in the manner, through the modes and subject to the restrictions provided under that Act and other laws, Government cannot make grants or other transfers of land or any interest therein to non-permanent residents of the State under the Land Grants Act. Therefore, there is no conflict, as suggested by learned counsel for the petitioner-Trust, in the two provisions. Section 11 of the Land Grants Act does not apply irrespective of all other laws, such as, the Registration Act and the restriction and prohibition on transfer of land to non-permanent residents of the State. It only excludes the application of Transfer of Property Act, which would include Section 140(c) thereof. Therefore, the provision of Section 140 of the Transfer of Property Act cannot be read into and together with Sections 10 and 11 of the Land Grants Act, since the exemption granted in Section 140 of Transfer of Property Act is not available and applicable to the exercise of power under Sections 10 and 11 of the Land Grants Act.
92. As regards the second argument that Clause (c) of Section 140 was enacted only with a view to making a grant of immovable property to the petitioner-Trust, we may say that, the argument proceeds on two assumptions: firstly, that by the 1978 Order the Government intended to make a grant of immovable property in favour of the petitioner-Trust; and secondly, that the words grant and other transfer used in Section 10 of the Land Grants Act mean one and the same thing. That, of course, is not the case. The 1978 order did not constitute a grant of immovable property to the petitioner-Trust. That is neither the import of the order, nor does the contemporaneous record suggest that the 1978 order intended to make a grant in favour of the Trust. In this judgment, we have already noticed the Memorandum of Submission to the Cabinet. It did not make a mention of grant; it makes a mention of transfer. The certificates of no objection obtained by the Government from the Departments concerned, whose property was involved, also do not make a mention of grant; they have furnished no objections to the transfer. The Cabinet Decision also does not make a mention of grant; it makes a mention of transfer. At the top of it, the 1978 order does not make a mention of government grant; it says as donation. In that view of the matter, the learned counsel is trying to read in the Government order or behind the legislative intention that what was never there.
93. As regards the other limb of the argument, the wording of Section 10 of the Land Grants Act itself makes a distinction between grant and other transfer. Whereas grant by itself is a recognised mode of transfer of property under the Constitution and does not embrace any other mode, the words other transfer connotes all the modes of transfer envisaged by Transfer of Property Act, including gift. And there is no exemption to the compulsory registration granted either under Sections 10 and 11 of the Land Grants Act, nor does sub-section (2)(vii) of Section 17 of the Registration Act exclude the application of Section 17(1)(a)(b), i.e. the requirement of compulsory registration, to such other transfer made by the Government under Section 10 of the Land Grants Act. Section 17(2)(vii) excludes application of sub-sections (b) and (c) only in respect of grants of immovable properties by the Government , not other transfers. Therefore, all other transfers made under Section 10 of the Land Grants Act would require compulsory registration under Section 17 of Registration Act. That apart, Section 140 of the Transfer of Property Act does not make a mention of grant of land by the Government. It only says transfer of immovable property. Obviously reference is to transfer of immovable property under the Transfer of Property Act. Therefore, even if the transfer is read to be pursuant to the power of the Government of other transfer envisaged in Section 10 of the Land Grants Act, it would still require compulsory registration under section 17 of the Registration Act. It was contended that, even if so, non-registration would not invalidate the transfer. However, we must out-rightly demur to such a contention. Section 49 of the Registration Act, under Part X, Of the Effects of Registration and Non-Registration, it is provided that no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein, i.e., the ownership does not transfer or change. Law cited in the shape of N.T. Veluswami Thevar v G. Raja Nainar AIR 1959 SC 42 is not attracted in the facts and circumstances of this case.
94. In view of the above, it is held that 1978 order did not constitute a grant under Land Grants Act. The order can at best be construed a gift from the Government under the Transfer of Property Act, 1977 Svt. and, no transfer of immovable property under the Transfer of Property Act is valid unless and until it is in writing, registered and the registration thereof has been completed in accordance with the provisions of Registration Act. Since Government order No. Rev (NDK) 90 of 1978 dated 19th April, 1978 was not followed by a written and registered document, the transfer was not valid in terms of Section 138 of Transfer of Property Act and Section 17 of the Registration Act. Consequently, no right, title or interest can be said to have vested in the petitioner-Trust on that score.
95. It was next argued on behalf of the petitioner-Trust that all prior actions or orders in respect of Sher-i-Kashmir Institute of Medical Sciences, Soura, were superseded by the agreement dated 17th December, 1980 executed between the petitioner-Trust and the Government and that the agreement clearly set forth the legal rights of the Government and the petitioner-Trust. It was submitted that the agreement in question provided a framework within which the Institute has been operating eversince, whereby the Trust is legally entitled to the representation on the Governing Body of the Institute and the Standing Academic Committees as per the agreement. Referring to clause 17 of the Agreement, it was submitted that the terms of the agreement could not be altered except by a majority vote of the Governing Body subject to approval by 50% of the members of the petitioner-Trust on the Governing Body. Since, by the impugned order, the terms of the agreement have been sought to be altered, the impugned order is violative of these rights of the petitioner-Trust.
96. The prayer made at clause (e) of the writ petition is that respondents 1 to 11 be directed to run the Sher-i-Kashmir Institute of Medical Sciences and any other institution affiliated with it in accordance with the terms of the agreement dated 17th December, 1980 through the Governing Body constituted under Clause (5) and other relevant Clauses of the said agreement. In other words, the petitioner-Trust wants this Court to direct performance of various covenants of the contract and thereby, the petitioner-Trust is seeking to enforce its contractual right, if any. In this behalf it would be apt to observe that such a relief cannot be granted by this Court in its writ jurisdiction. The petitioner-Trust's remedy for such a relief is available in a Civil Court, not in a writ petition.
97. It was next contended that, even if the 1978 order did not transfer the title in the properties in question to the petitioner-Trust, the Trust has acquired proprietary rights in these properties by promissory estoppel and the Government is estopped from taking over possession of such property. It was submitted that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution of India corresponding to Section 22 of the Constitution of Jammu and Kashmir. It is further submitted that the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of this doctrine. In support of this proposition, the learned counsel have cited and relied on Motilal Padampat Sugar Mills v State of U. P. (1979)2 SCC 409; Union of India v. Godfrey Philips India Ltd (1985)4 SCC 369; and Indira Bai v Nand Kishore (1990) 4 SCC. It was further submitted that the doctrine of promissory estoppel has been allowed to operate against public authority in minor matters of formality where there is no question of the enforcement of the promise resulting in an ultra vires act by the Government. For example, even without conveyance by registered deed land allotments by the Government coupled with a warrant for possession in favour of an individual by the doctrine of promissory estoppel result in the individual becoming entitled in law to claim title to the land and seek delivery of possession of the allotted land. In this behalf, learned counsel cited and relied upon Express Newspapers Pvt. Ltd v Union of India (supra) and Tara Singh v Kehar Singh 1989 Supp (1) SCC 316. The learned counsel have also cited Delhi Cloth and General Mills ltd v Union of India (1988) 1 SCC 86.
98. I have gone through the judgments cited at the Bar. Three most important ingredients underlying the principle of Promissory estoppel are that (i) there must be a promise and assurance, rather unequivocal, on behalf of the Government; (ii) this promise or assurance must have been understood by the promisee (iii) in reliance on such promise and assurance, the promisee must have been prompted to act and alter his position. The first and the foremost vital ingredient, therefore, that underlies the doctrine is existence of a promise.
99. In the instant case, in December, 1972, late Sheikh Muhammad Abdullah approached the Government for allotment of land measuring 230 Kanals, informing the Chief Minister of the State that he was instituting a benevolent trust for which an amount of Rs.1.5 Lakhs had been donated to him. He also informed that consensus of the donors was to establish a Hospital. He sought cooperation of the Government in this behalf. The Government in terms of Government order dated 14th October, 1973 leased out 292.8 Kanals of land in favour of the Trust on lease basis. The lease deed was not, however, executed. Simultaneously Government Dispensary alongwith its other structures and land underneath and appurtenant thereto located just abreast the aforesaid land measuring 292.8 Kanals was also transferred to the Trust. Government had its own plans to construct a 500-bedded Hospital near the site. Late Sheikh Muhammad Abdullah was the Chairman of the Trust. He became Chief Minister of the State in February, 1975. Immediately after the Chairman of the Trust became the Chief Minister of the State, Secretary of the Trust addressed communication dated 22nd May, 1975 to the Chief Minister requesting him to amend the earlier Government order dated 14th October, 1973 to make absolute grant of the aforesaid land and properties in favour of the Trust. The aforesaid letter is written to the Chief Minister, Sheikh Muhammad Abdullah, on the letter-head of the Trust bearing in bold letters the name of Sheikh Muhammad Abdullah as Chairman of the Trust. The lease of the aforesaid land, as already said, was made for forty years at a consolidated rent of Rs.101 per annum. There were no compelling reasons to change the lease into proprietorship. Not satisfied with the lease made by the orders of the erstwhile Chief Minister, the matter for making absolute transfer was processed. Without bothering about the legal and factual opinions and requirements envisaged by law for the purpose, furnished by various agencies to such a course being adopted, as evidenced from the contemporaneous records, the matter ultimately culminated into issuance of Government order dated 19th April, 1978. This order, as already discussed, did not vest any right, title or interest in the petitioner-Trust. The aforesaid Government order did not extend any promise or assurance to the petitioner-Trust that the properties mentioned therein would be that of the Trust as owners thereof irrespective of, and without due recourse to, the mandatory requirements of law. Nor any allurement on the part of the Government can be read in the aforesaid Government order; especially in the facts and circumstances it was issued. It was not the Government who lured the petitioner-Trust into embarking upon the establishment of the Trust and then fixing its aims and objectives, including establishing all that what is contained in the Trust Deed. Nor had the Government asked the petitioner-Trust to establish the Medical Institute or to take any of other Governmental properties for running medical units. The fact of the matter is the other way round.
100. Coming to the agreement dated 17th December, 1980, it was argued that the covenants enshrined therein constitute a promise on the part of the Government from which they cannot go back to the detriment of the petitioner-Trust. Going through the various covenants of the agreement dated 17th December, 1980, together with what was argued before us, the case of the petitioner-Trust is that the trust agreed to handing over of 292.8 Kanals of land to the Government as also to contribute to the Medical Institute any amount it might receive as donations from time to time, in lieu whereof the Government accepted to give representation to the Trust on the Governing Body of the Institute. And that this acceptance constitutes an unequivocal promise on the part of the Government. Therefore, Trust has a right to continue to have representation on the Governing Body of the Medical Institute. In this connection, it would be suffice to say that the substratum of the agreement is the mistaken belief of the petitioner-Trust that the properties in question stood transferred to it as a grant requiring no formal deed. That aspect I have already dealt with. The property has not vested in the petitioner-Trust. Any subsequent act or thing done on the basis of 1978 order becomes void ab initio. Once the property mentioned in the agreement does not belong to the Trust, the sheet-anchor of the various terms and conditions thereof lose their force, strength and meaning. They cannot be relied upon for any purpose whatsoever.
101. The learned Advocate General submitted that the petitioner-Trust was conscious that the 1978 order did not vest any title, interest or right in it and, therefore, even after the issuance of the 1978 order, the Under Secretary to the then Chief Minister, (Chief Minister's Secretariat) addressed letters dated 12th May, 1978 and 12th June, 1978 to the Secretary to Government, Revenue Department, regarding absolute transfer of land and buildings to the Trust. These letters are quoted hereunder:
GOVERNMENT OF JAMMU AND KASHMIR CHIEF MINISTER'S SECRETARIAT.
No.CMS/Genl-26/78 Dated 12th May 1978.
Sub: Absolute transfer of land and buildings to Sher-i-Kashmir National Medical Institute Trust.
The undersigned is directed to invite the attention of the Secretary to Government, Revenue Department to Secretary, Sher-i-Kashmir, National Medical Institute Trust, Srinagar's letter No.1483-84/4/78 dated 19.4.1978 to his address regarding the subject cited above and to request him kindly to intimate action taken in the matter to the concerned as well as to this Secretariat.
Sd/-
(P.N. Sharma) Under Secretary to the Chief Minister.
Secretary to Government, Revenue Department, Srinagar.
102. The above letter was followed by another letter which is quoted hereunder:
GOVERNMENT OF JAMMU AND KASHMIR CHIEF MINISTER'S SECRETARIAT.
No. CMS/Genl-26/77 Dated 12th June 1978.
Sub: Absolute transfer of lands and buildings to Sher-i-Kashmir National Medical Institute Trust.
The undersigned is directed to refer the Secretary to Revenue Department to Secretary, Sher-i-Kashmir National Medical Institute Trust, Srinagar's letter No.1735-37/5/78 dated 31.5.1978 addressed to him and copy among others endorsed to this Secretariat regarding the subject cited above and to request him kindly to intimate the action taken in the matter to the concerned as well as to this Secretariat.
Sd/-
(P.N. Sharma) Under Secretary Secretary to Government, Revenue Department.
103. In response, in paragraph 7 of the rejoinder-affidavit, sworn in by Dr. Farooq Abdullah, it is stated that the letters do not make reference to any transfer deed or any other remaining legal formality. They simply request that the addressee intimate what action was taken in the matter of the transfer of property to the Trust. This is more likely referring to the actual transfer of possession of such properties to the Trust in implementation of the 1978 order, especially since the communications are issued shortly after the date of the 1978 order. This is a far more plausible interpretation of the letters in said annexures than the self-serving interpretation suggested by the respondents. It is note worthy that these letters have originated from the then Chief Minister's Secretariat and are shown to have been issued on directions of the Chief Minister. The Chief Minister was also the Chairman of the Trust. The possession of the properties in question had been with the petitioner-Trust years earlier to the passing of 1978 order. The interpretation to these letters furnished by the petitioner-Trust, as indicated above, is not convincing. The submission of the learned Advocate General seems to be carrying weight.
104. During the course of arguments, as already observed, learned counsel for the petitioner-Trust stated that pursuant to the 1978 order and the agreement dated 17th December, 1980, the petitioner-Trust has altered its position. It was stated that land belonging to Dr. Farooq Abdullah, Tariq Abdullah his brother and the land of his other relatives was donated for the Institute. Government has produced attested photocopies of the statement showing the details of total land under the possession of the Medical Institute. At S.No.1 thereof, names of Dr. Farooq Abdullah and Tariq Abdullah sons of Sheikh Muhammad Abdullah appear from whom 7 Kanals of land comprised in Khasra No.362 situated at Zoonimar are shown to have been acquired against payment in terms of Award No.214-16/824/LAC dated 25th May, 1978, that means just about a month after the 1978 order. At S.No.3 appears the name of Zirat Ahli Islam Syed Jaffar Sahib in the name of Sheikh Mohd Abdullah and in this case land measuring 6 Kanals and 17 marlas comprised in Khasra No.368 has been acquired against payment in terms of the aforesaid Award. At S.No.6 of the statement, land measuring 168 Kanals and 8 marlas are shown to have been acquired and payment made in terms of Award No.1019-21/865/LAC dated 28th January, 1982, i.e., after the agreement in question, to Sheikh Nazir Ahmad and Sheikh Mohd Iqbal and Mst. Nighat and Mst. Rahmat D/O Atiqa Begum Mohd Sadiq, Nasreen Kounsar Daughters and Fatima wife of Sheikh Abdul Rashid. All these are the members of one family. The statement that any of their property was donated to the Institute is appallingly false. And this was stated to be one of the ways in which the Trust had altered its position.
105. In paragraph 2 of the writ petition, it is stated that:
the Trust was donated a big parcel of land measuring 60 Kanals by one Mr. Raj Sawhney who was the then Secretary of the Trust. The Trust also received as donation land measuring 40 Kanals from one Mr. Beant Singh, owner of Palladium Cinema.
106. In paragraph 5 the rejoinder affidavit, sworn in by none other than the Chairman of the Trust, Dr. Farooq Abdullah, it is stated as under:
..besides land measuring 292 kanals, petitioner Trust has also donated Sher-i-Kashmir Hospital and Polyclinic along with the land under its possession at the time of the agreement. Shr-i-Kashmir Hospital was solely constructed by the Trust from its fund and some other land which were donated to Trust by one Shri R. K. Sawhney and by Anant Singh, measuring 40 Kanals and 4 marlas and 50 Kanals and 15 marlas respectrively, was in fact utilized for construction of Shri Kashmir Hospital and rest of the land was donated in favour of the Government for construction of Sher-i-Kashmir National Institute of Medical Sciences. Copies of the settlement deeds in this regard showing donation of aforementioned land by above two persons are enclosed herewith and marked as Annexures RA1 and RA2 respectively.
107. Perusal of Annexure RA1 appended with the Rejoinder Affidavit filed by Dr. Farooq Abdullah, Chairman of the Trust, to show that land measuring 40 Kanals and 4 marlas was donated to the Trust by Mr. R. K. Sawhney and is a part of the land of Medical Institute, in fact, gives all together a different picture. It shows that Rajinder Kumar Sawhney son of Bhagat Chand Sawney resident of Wazir Bagh, Srinagar, as Secretary of the Trust and one Ghulam Rasool son of Haji Mohd Shaban Sahib resident of Nigeen Hazratbal (Treasurer of the Trust) acting on his own behalf and on behalf of the Trust as nominated representative, have, in fact sold land measuring 40 Kanals and 4 Marlas comprised in Survey Nos. 250/min (1 marla); 251/min ( 1 Kanal 1 Marla); 5324/349 (5 Kanals and 19 Marlas); 253 (8 Kanals and 10 Marlas); 257 (4 Kanals and 4 Marlas); 258 (4 Kanals and 7 Marlas); 264 (10 Kanals); 265 (2 Kanals and 6 Marlas); 5320/266 (3 Kanals and 16 Marlas) situated at Zoonimar Soura in favour of Government of Jammu and Kashmir through Collector Revenue and Rehabilitation for a consideration of Rs.8, 04, 000/- at the rate of Rs.20,000/- per Kanal together with development charges at Rs.20,000/- in all. The Sale deed, which was executed on 15th March, 1979, further reveals that the land was sold not for the purpose of Medical Institute but for rehabilitation of people who were being dislocated from the inner city on account of widening of roads. It is note worthy that as per the statement made by none other than the Chairman of the Trust, Dr. Farooq Abdullah, the Sher-i-Kashmir Hospital was constructed on the aforesaid land donated to the Trust by Mr. R. K. Sawhey. This also casts a dense and dark cloud on the assertion of the Trust that it had raised any construction named Sher-i-Kashmir Hospital, though they have not produced any evidence on record to establish that fact. Any how, the above is the second instance cited in an attempt to demonstrate that the Trust had altered its position. There is yet another facet of this important aspect of the matter.
108. The Sher-i-Kashmir Hospital and the Polyclinic is stated to have been constructed by the petitioner-trust exclusively out of its own funds on the land donated to the Trust by M/s R. K. Sawheny and Anant Singh. We have already shown that R. K. Sawhney had not, in fact, donated any land. In any case, no such document has been brought on record to indicate that Mr. Sawhney had donated any land. The document relied upon in this regard depicts altogether a contrary tale, as narrated above. It be borne in mind that Government Dispensary alongwith its structures and land measuring 8 Kanals comprised in Khasra No.5368/332 underneath and appurtenant thereto was transferred to the petitioner-Trust. It appears that the petitioner-Trust had actually and illegally taken possession of more than 8 Kanals of land on the spot. This is evident from the following letter dated 2nd March, 1981of the petitioner-Trust to the Deputy Secretary to Government, Housing and Urban Development Department, J&K, Jammu:
SHER-I-KASHMIR NATIONAL MEDICAL INSTITUTE TRUST CHAIRMAN: SHEIKH MUHAMMAD ABDULLAH Maulana Azad Road Srinagar Kashmir.
No.2388-89/3/81 March 2, 1981 Shri J. N. Raina, Deputy Secretary to Government, Housing & Urban Development Deptt., Jammu & Kashmir, Jammu (Tawi).
My dear Shri Raina, Re: Absolute transfer of lands & buildings to the Sher-i-Kashmir National Medical Institute Trust.
Kindly refer to your letter No.UD-106/80-HB dated 25th February, 1981 regarding the subject noted above.
In this connection I would like to inform you that the Government of Jammu and Kashmir has already transferred the below mentioned State property to the Sher-i-Kashmir National Medical Institute Trust, in ownership right vide Government Order No.Rev (NDK) 90 of 1978 dated 19th April 1978:-
1. Land measuring 292 Kanals and 8 Marlas situated at Zoonimar, Srinagar, belonging to the Housing & Urban Dev Deptt ( on western side of Srinagar-Ganderbal Road).
2. Govt. dispensary at Soura consisting of:
i/ Main building, ii/ Chowkidari Shed, iii/ Kitchen Block & the land under and appurtenant measuring 8 Kanals situated at Soura, Tehsuil Khas belonging to Health Department. Khasra No.5368/332 (on Eastern side of Srinagar-Ganderbal road).
Over and above 8 Kanals shown in para 2(iii) above comprising of Khasra No.5368/332, the Sher-i-Kashmir National Medical Institute Trust has been having under its possession 25 Kanals and 2 Marlas comprising Khasra Nos. 327/min, 328/min, 329, 330/min, 333/min, 334 and 337/min. The total land of 33 Kanals and 2 marlas is within one wire fencing around the Polyclinic and the Sher-i-Kashmir Hospital, Soura We have, therefore, been requesting the Government to transfer 25 Kanals and 2 marlas also to the Trust.
I hope the matter will be clear to you now and you will take necessary action accordingly.
With kind regards, Yours Sincerely, Sd/-
B.A. Qari, Assistant Secretary, Central Office.
(Underlining and highlighting supplied)
109. From the contents of the aforesaid letter, it is unambiguously clear that the petitioner-Trust had been taking all out advantage of the peculiar circumstances it was placed in at the relevant time. It is interesting to note that, just with the donation of Rupees one lakh and odd, the Trust had managed to take into its possession Governmental properties worth Crores of rupees, practically with no yield to the general public. Be that as it may, reading between the lines, it appears that it is the same Government Dispensary which was transferred to the Trust by the Government that was named Sher-i-Kashmir Hospital and Polyclinic by the Trust. This conclusion is further strengthened by the fact that the petitioner-Trust has not placed on record anything, worth the name, to show that any such construction was raised by it. The land illegally taken over and possessed by the petitioner-Trust had naturally to go to the Medical Institute premises as it was the property of the State. The submission of the learned Advocate General that all the transactions after February, 1975 were tainted and off-shoot of a fraud played with the State property and State exchequer is not wholly misconceived. There seems to be a great substance in the submission.
110. Coming to annexure RA2, it is, indeed, a settlement deed, executed on 1st December, 1976 and registered on 7th December, 1976 by Shri Anant Singh son of Sewa Singh resident of Paladium Cinema, Srinagar, as attorney on behalf of his sons namely, Surrender Singh and Jeetandar Singh Gori; and Surrinder Singh son of Anantnag Singh acting as special attorney holder on behalf of his brother, parting away with land measuring 50 Kanals and 13 Marlas comprised in Khasra Nos. 267, 251, 265, 5320/266, 283, 257/2, 258/2, 264, 268, 269, 270, 271, 272, 273, 274, 275, 5324/249 and 250 in favour of General Public for their welfare and wellbeing and Sher-i-Kashmir National Medical Institute Trust. Out of this 50 Kanals and 13 Marlas of land, Shri R. K. Sawhney and Ghulam Rasool, vide sale deed (annexure RA1) referred to earlier, have sold 31 Kanals and 14 Marlas comprised in Survey Nos. highlighted and underlined above to the Government. There is no evidence that the remaining land measuring 18 Kanals and 19 Marlas out of this donated land was utilized for the Medical Institute. In any case, this is the third instance quoted to establish and demonstrate that the petitioner-Trust had altered its position in reliance of the promise extended to it by the Government.
111. At the top of it, in paragraph 2 of the writ petition, the averment made by the petitioner-Trust is that, since one of the stated objects of the Trust was to get a Medical Institute established and the same being a huge project, it was not, at that time, within the means and resources of the Trust. The Government of J&K, satisfied with the objects and purpose of the Trust, agreed to the construction of the Sher-i-Kashmir Institute of Medical Sciences. None of the above facts establishes that the petitioner-Trust had altered its position in any manner so as to attract the application of doctrine of promissory estoppel against the Government.
112. On the other hand, it is admitted that the Institute is spread over an area of nearly 1000 Kanals of land. The building and other structures standing thereon have been raised by the Government out of its own funds. The Hospital equipment has been purchased by the Government. Doctors and all other staff members are being paid their salaries by the Government. All expenses are being incurred by the Government and it has been brought on record to show to this Court that till July, 2003 the Government in this regard has spent a huge amount of Rupees Five Hundred Twenty Crores Sixty Seven Lakhs, Seventeen Thousand and Eight Hundred (Rs.520, 67, 17, 800/-), both plan and non-plan. One wonders as to how the governance of such a big Institute could be left to the interference of some one representing a non-juristic person having no liability or responsibility with respect to the human lives being dealt with therein. An establishment, like the Medical Institute, is not a profitable enterprise. It is established for the alleviation of the suffering of general masses and the State is obliged and bound to run it for the benefit of and commensurate with the aspirations of general masses in tune with the directives enshrined in the Constitution. Government would certainly be answerable and liable for any compromise on its duty towards its citizens in the field of health care.
113. Respondents have brought on record of this case the instances on account of which the management of the Medical Institute had gone into shambles. These instances include irregularities in the selection of Faculty Members, tampering with evaluation marks assigned by Experts etc. All these unlawful omissions and commissions resulted in pouring in of complaints through various agencies, including the Prime Minister's office and Chairman, Petition Committee (Lok Sabha). The Government had also to institute an enquiry Committee headed by a retired Judge of the High Court. The Committee not only reported the irregularities as being true, but also stated that it was prevented from verifying other irregularities on account of the impediments caused by the authorities of the Institute under the dictates of Dr. Muhammad Ali Matoo, the petitioner herein. The said Dr. Muhammad Ali Matoo was the Vice Chairman of the Governing Body. In that capacity, in terms of Government order No.122-IMS of 1981 dated July 8, 1981, he had been heading various committees, such as, Vice Chairman of Standing Finance Committee; Chairman, Standing Academic Committee; Chairman Purchase Committee; Vice-Chairman, Apical Selection Committee; Chairman, Senior Selection Committee. Height of things is that one R. K. Sawheny, who is stated to be just a business man, having no academic record relating to medical profession, in his capacity as being member of the petitioner-Trust, has been acting as a member in Junior Selection Committee meant to select staff to deal with human lives. Dr. Muhammad Ali Matoo himself is only an MBBS. This awesome situation prevalent in the Institute came to the notice of a learned Single Judge of this Court in SWP No.1284/2001 titled Dr. Fayaz Ahmad Sofi v State of J&K. It would be relevant to quote herein the observations of the learned Single Judge:
2. It is seen that the Committee constituted for evaluation of the research work in the discipline of General Medicine composed of Professor Mohinder Bhandhari, Director, Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow; Prof. Syed Zahoor Ahmad, Ex-Director, SKIMS; Prof. S. Jalal, Dean Faculty of SKIMS and external expert, namely, Prof. Sifat Afzal, Professor of Medicine, Aligarh Muslim University, besides, the Director and Vice Chairman of SKIMS. The Professors whose particulars are detailed hereinabove are admitted the only qualified members of the Selection Committee in the discipline of General Medicine, therefore, it will be appropriate to give a brief narrative about the evaluation picture recorded by these Professors. As per evaluation of Prof. Bhandhari and Prof. Sifat Afzal (External Expert) research work of respondent No.4 has drawn a blank, but amazingly the Vice Chairman has rated the same research work at 15 points. It is evident from the record that as per evaluation made by other two Professors, namely, Prof. Syed Zahoor Ahmad and Prof. S. Jalal research work of respondent 6 could not beget him more than five points. Another instance of favouritism is evidenced by points awarded in favour of respondent No.5 by the Vice Chairman who rates his research work at 17 points whereas it has been evaluated by Professors of Medicine including the expert at 6, 8, 11 and 10 respectively. Now a word about the performance of the petitioner. Professors and Experts have rated him at 12, 10, 16 and 12 but Vice Chairman rates his research work at 7 points only. It is clear that Vice Chairman has awarded the research work of respondent No.5 and 6 more than three times compared to the award drawn in favour of the petitioner, yet in view of fair evaluation by Professors and experts the petitioner lacks only by less than one point on overall evaluation b the Committee in aggregate
3. In this behalf challenge is thrown to the selection on the ground that Vice Chairman (VC) lacks competence to evaluate the research work. It is seen from the pleadings that qualification of the Vice Chairman is MBBS only and he has no speciality or super specialty to his credit, yet it is his evaluation which has prevailedOne fails to understand as to what has prompted the Apical Selection Committee SKIMS to give preference to evaluation made by Vice Chairman notwithstanding the fact that he is a raw hand for purposes of evaluation of research work in the speciality of General MedicineAll this goes to show that the selection in general medicine has been camouflaged and the petitioner's non-selection amounts to victimization of his professional efficiency. The assessment of evaluation of research work makes room to draw an inference that mala fides, bias and ulterior motive was the cause of non-selection of the petitioner
5. Before parting with, it calls for a mention to put the record straight that other grounds taken against the omissions and commissions of the SKIMS in the process of selection and appointment in General Medicine have substantial strength but since the petition in my opinion is bound to succeed on the aforementioned reasoning, therefore, I refrain from expression of opinion with respect to other grounds.
114. Apart from the above, it is stated that the hygienic condition of the Institute had deteriorated to the detriment of the health care of the common masses and this was all because the management of the Institute was held hostage to the agreement dated 17th December, 1980 inasmuch as the Institute was being controlled and run by Vice Chairman of the Trust, Dr. Muhammad Ali Matoo. Since the Government was committed to upgrade and improve health services in the State, in presence of the unwarranted interference, as aforesaid, it was not possible for the Government to achieve its optimum in that field.
115. It would be apt to quote hereunder the observations of the Supreme Court in Motilal Padampat Sugar Mills v State of U P. (supra), cited and relied upon by the petitioner-Trust:
The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel. Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of `honesty and good faith'? Why should the Government not be held to a high `standard of rectangular rectitude while dealing with its citizens'? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations; but, let it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the Indo-Afghan Agencies case and the supremacy of the rule of law was established. It was laid down by this Court that the Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would alter his position relying upon it. But if the Government makes such a promise and the promisee acts in reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private individual. The law cannot acquire legitimacy and gain social acceptance unless it accords with the moral values of the society and the constant endeavour of the Courts and the legislature must, therefore, be to close the gap between law and morality and bring about as near as approximation between the two as possible. The doctrine of promissory estoppel is a significant judicial contribution in that direction. But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts as have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. The Government cannot, as Shah, J., pointed out in the Indo-Afghan Agencies case, claim to be exempt from the liability to carry out the promise `on some indefinite and undisclosed ground of necessity or expediency', nor can the Government claim to be the sole judge of its liability and repudiate it `on an ex parte appraisement of the circumstances'. If the Government wants to resist the liability, it will have to disclose to the Court what are the facts and circumstances on account of which the Government claims to be exempt from the liability and it would be for the Court to decide whether those facts and circumstances are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from the liability; the Government would have to show what precisely is the changed policy and also its reason and justification so that the Court can judge for itself which way the public interest lies and what the equity of the case demands. It is only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government. The Court would not act on the mere ipse dixit of the Government whether the Government should be held exempt from liability. This is the essence of the rule of law. The burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the Court would insist on a highly rigorous standard of proof in the discharge of this burden. But, even where there is no such overriding public interest, it may still be complete to the Government to resile from the promise `on giving reasonable notice, which need not be a formal notice, giving the promise a reasonable opportunity of resuming his position' provided of course it is possible for the promise to restore status-quo-ante. If, however, the promise cannot resume his position, the promise would become final and irrevocable.
(Underlining supplied)
116. Though I have noticed that a case for promissory estoppel is not made out in the present case, yet we are satisfied that the Government has placed on record overwhelming facts and circumstances demonstrating that overriding public interest requires that the Government should not be held bound by the promise, if any, contained in the agreement dated 17th December, 1980. Equity demands that in the larger public interest the Medical Institute should be under the exclusive control of the Government in all its affairs so that the anomalies in the management noticed are not repeated and the objectives with which the Institute was established are achieved.
117. It was vehemently argued that about 25 years had elapsed eversince these properties were transferred to the petitioner-Trust and that, during all these years, not even once did the Government raise any dispute about the transfer of ownership with respect thereto to the petitioner-Trust. Therefore, the silence of the Government over all these years should be read as acquiescence on the part of the Government and, consequently, they are estopped to open the matter now. In this connection, it was stated by the learned Advocate General that, in fact, all these years the Government was with those who committed these illegalities and, therefore, there was no chance for any one to have reversed the wrong done. It was stated that it was only during a brief period between 2nd July, 1984 to 19th February, 1986 that Mr G. M. Shah became Chief Minister of the State and, during that period, in January, 1986, there was a move to undo the wrong but, before the matter could be processed, Governor's rule was imposed from 20th February, 1986 to 6th November, 1986. Thereafter, the Government headed by Dr. Farooq Abdullah was formed. Elections were held in March, 1987 and his Government continued till 20th January, 1990 when he resigned as Chief Minister and Governor's rule was imposed in the State. Again Government was formed on 9th October, 1996 which lasted till 17th October, 2002 and Dr. Farooq Abdullah continued to govern the State. It was only on 2nd November, 2002 that the present Government took over after elections were held in October, 2002. Without elaborating any further, I am of the opinion that, in the peculiar facts and circumstances stated at the Bar and narrated above, acquiescence cannot be attributed to the Government. The facts and circumstances attendant to the case are such which vitiate the syllogism advanced by learned counsel for the petitioner-Trust.
118. As regards the Kashmir Nursing Home, it is admitted by the petitioner-Trust that it is not in a position to run the same as the petitioner-trust was not equipped with the expertise, staff and other resources or infrastructure to manage the Nursing Home on day-to-day basis and in accordance with the guidelines of the Medical Council of India. This Nursing Home was transferred to the Trust in view of its so-called cherished object of rendering medical help to the needy. The Government has invested about Rs.95 lakhs on its renovation / reconstruction. After its completion, the staff of the Nursing Home was retrenched. Thereafter, an agreement to part with the Nursing Home was executed with a lady, namely, Sabia Tariq, who is stated to be a house-wife and related to Dr. Muhammad Ali Matoo. In the writ petition, it is stated that the management contract was entered into with Doctors, a statement belied by the copy of such contract brought on record by the petitioner-Trust itself. This by itself constitutes a deliberate attempt on the part of the petitioner-Trust to mislead this Court. In this connection, I deem it relevant to quote hereunder paragraph 26(e) of the writ petition, which reads:
That execution of a contract for running the management of the Nursing Home by local doctors was considered a necessity by the Board of Trustees and while executing that contract with the doctors, the Trust has taken all necessary precautions for protecting the title of the property and also to ensure that the objects and the purposes of the Trust are also practiced by the party which is taking over the management of the Nursing Home. The contract for outsourcing the management of the new nursing home was prepared after keeping in mind the interest of Trust property which is clearly evidence by the clauses of the said lease.
119. The agreement executed by the petitioner-Trust on 12th May, 2003, photocopy whereof has been placed on record of the writ petition as annexure D, discloses that the same has been entered into with one Mrs. Sabia Tariq D/O Ghulam Ahmad resident of Rajbagh, Srinagar. On a specific question put to Mr. M. A. Goni, learned counsel for the petitioner-Trust, on 15th October, 2003, it was stated that she is a cousin-sister of Dr. Muhammad Ali Matoo and a house-wife, but has the business handling know-how. A 40-bedded Nursing Home is not a business establishment where inorganic commodities have to be dealt with. It is a place where human lives have to be saved from suffering. It is unfortunate that the Trust has not stuck to its objectives on the basis of which, it says that, the Government was satisfied promoting it to transfer the said Nursing Home to the Trust. If the Trust was not in a position to run the Nursing Home, it ought to have returned it and handed over its possession back to the Government. The Trust was not the owner of the Nursing Home so as to deal with it in any manner to its liking. Instead of running the Nursing Home, the Trust intended to create third party interest therein and, as the facts suggest, for mala fide and extraneous considerations. The averment made on affidavit, as quoted above, that the petitioner-Trust had entered into agreement with Doctors is wholly belied by the petitioner-Trust itself, lending a strength to the inference that the leasing out of the Kashmir Nursing Home was actuated by extraneous considerations.
120. Not only that, to the Nursing Home was attached the Drug Research Laboratory situated at Moulana Azad Road, Kothibagh, Srinagar, so that patients admitted therein could get various investigations done there. In his letter dated 5th August, 1977, addressed to Mirza Mohammad Afzal Beg, the then Deputy Chief Minister, Jammu and Kashmir, Government, Srinagar, the Secretary of the Trust, while describing the reasons for need to transfer the Drug Research Laboratory to the Trust on ownership basis, had written as under:
We approached Shri S. Baner Ji, the then Advisor to Governor of the State, vide this office letter No.2135/77 dated 9th May, 1977 (copy enclosed) informing him of the need of starting a properly equipped laboratory in the city of Srinagar for clinical investigations which has costed the Trust nearly rupees four lakhs to equip with most modern and sophisticated equipment. He was also informed that the Trust is very shortly planning to equip the laboratory for the latest and complicated investigations so that the people of the State are able to get thorough investigations done under one roof and do not have to go outside the State for higher clinical investigations. He was requested to take personal interest in the matter and favour us with necessary sanction to transfer of the said buildings to the Trust.
121. Instead of doing what is given out in the aforesaid letter, the Drug Research Laboratory has been converted into a shopping complex to increase corpus donation of the Trust an object neither envisaged by the government order under which the Drug Research Laboratory was transferred to the Trust, nor even remotely related to that object. It is unfortunate that the Trust has not even stuck to its objectives, not to speak about what it gave out to the Government in the aforesaid letter.
122. Respondents contended that Dr. Ali Jan Plaza was constructed by the petitioner-Trust without obtaining building permission from the competent authority. The petitioner-Trust has refuted this allegation and in support has appended communication No.138/558 dated 8th December, 1988 addressed to the Secretary of the Trust by Town Planner, Srinagar Municipality. It would be appropriate to quote this communication hereunder:
SRINAGAR MUNICIPALITY.No. 138/558
Dated: 8.12.1988.
The Secretary, Sheri Kkashmir National Medical Instt. Trust, Moulana Azad Road, Srinagar.
Subject: Application for grant of permission for construction of commercial complex at M. A. Road, Srinagar.
Sir, With reference to your application dated 23.11.88 for grant of permission for construction of commercial complex at M. A. Road. The case stands approved by the B. P. A. in its meeting held on 3.12.1988 on the condition that the plans submitted by you are to be redrafted in light of the following:
1.the plinth area shall have to be restricted to 35% of the total land area.
2.the car parking shall have to be arranged within the premises so that the traffic of the main road is not disturbed.
3.The over all height of the structure should not exceed 37'- 0 from ground level to ridge top.
It is, therefore, requested to kindly direct your Architect to redraft the plans accordingly and in case of any clarification thereof he may be requested to discuss the case personally with the undersigned.
Early submission of revised plans will be appreciated so that formal sanction thereof is communicated to you.
Yours faithfully, Sd/-
Town Planner/Architect, Srinagar Municipality.
(Underlining supplied)
123. From a bare perusal of the aforesaid letter it is crystal clear that sanction for building permission was to be accorded only after the revised plans were submitted, but that does not seem to have been done by the petitioner-Trust. It proceeded with the construction without doing the needful as had been directed to be done by the Srinagar Municipality. In that view of the matter, the plea of the respondents that Dr. Ali Jan Plaza was constructed without building permission carries all the weight. The plea that the Trust has invested huge sums of money on the construction of the Ali Jan Plaza and the new Nursing Home building is under investigation. Any comment thereon by us is likely to cause prejudice in such investigations. However, the fact remains that the Trust has misused the aforesaid public properties transferred to it by the Government and, therefore, I do not see any wrong having been committed by the Government in revoking the order of transfer or taking over the possession of these two buildings.
124. The reasons thus supplied in the impugned Government order, as enumerated elsewhere in this judgment, are fully substantiated. Even otherwise, as seen earlier, the Medical Institute had been declared as a Government Hospital way back in 1979 in terms of Government order No.36-ME of 1979 dated Ist February, 1979 and then as a Government organization vide Government order No.GD9Adm)10 of 1986-Health dated 18th March, 1986 for all intents. In light of these facts, leaving control of the Medical Institute to any extent to a non-governmental representation was unwarranted.
125. The contention of the learned counsel for the petitioner-Trust that under the garb of the impugned order, the Government have taken over the Trust without recourse to the provision of Section 92 of the Civil Procedure Code, is totally misplaced. It is the case of the petitioner-Trust that its office is located in the Nursing Home Building. This is another glaring example of misuse of the Nursing Home. The Nursing Home was not transferred to the Trust for converting it into public office. Any how, since the Nursing Home has been taken over by the Government, it was natural that the office would remain closed. I am hopeful that the Government would release all the records lying in the Nursing Home building, pertaining to the Trust, to the representatives of the Trust, unless needed by the Government for the investigations as ordered vide the impugned Government order.
126. Having thus come to the conclusion that no title, right or interest has vested in the petitioner-Trust with respect to the properties in question, as a necessary corollary it follows that none of the rights of the petitioner-Trust have been violated by virtue of the impugned order which could be enforced through the medium of a writ petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. That being the legal position, this writ petition is not maintainable.
127. Mr. A. H. Naik, learned Advocate General, has also advanced certain arguments that the writ petition is not maintainable. I, however, need not go into those arguments, since I have already come to the conclusion that this petition is not maintainable.
128. Lastly, it may be observed here that, in pursuance of orders of this Court passed on 15th October, 2003, during the time the Deputy Registrar, Judicial, of this Court at Srinagar, was preparing photocopies of the documents needed by the petitioner-Trust, one of the representatives of the Trust took out from one of the files of the Trust a Cash Certificate bearing No.717593 for an amount of Rupees Seven Lakh Ninety Nine Thousand Seven Hundred Seventy Six (Rs.7,99,776.00) having the maturity value of Rs.8,59,355.00 which was payable on 19th October, 2003, in the name of the petitioner-Trust deposited with the Jammu and Kashmir Bank Ltd, Residency Road, Srinagar, and tried to hide it in his pocket. The Deputy Registrar seized the Cash Certificate and reported the matter to this Court. Vide order dated 16th October, 2003, this Court ordered that the matter would be decided at the time of hearing of the main petition. The Deputy Registrar has placed the Cash Certificate on record of this petition alongwith his report. Though it could lead to registration of a case for theft by the concerned official of the Trust, namely, Muhammad Yasin Haqani, but, taking a lenient view, he is exonerated of the mischief. The Cash Certificate be handed over to Mr. A. H. Naik, learned Advocate General, against proper receipt for its safe keeping in the records of the Trust to be returned to the Trust alongwith other records as and when the records are transmitted to them.
129. For all what has been discussed above, this writ petition is dismissed. It may be observed here that out of 50 Kanals and 13 Marlas of land situated at Soura, stated to have been donated by Anant Singh to the petitioner-Trust, land measuring 31 Kanals and 14 Marlas comprised in Survey Nos. 251, 265, 5320/266, 257/2, 258/2, 264, 5324/249 and 250, as already noticed, was sold by the petitioner-Trust to the Government. There is no evidence that the remaining land measuring 18 Kanals and 19 Marlas out of this donated land was utilized for the Medical Institute. The petitioner-Trust is, however, left free to seek compensation in respect of these 18 Kanals and 19 Marlas of land, if the same has been utilized for the Sher-I-Kashmir Institute of Medical Sciences, Soura, and is, in fact, included in the premises of the Medical Institute.
130. Let this judgment be placed before Brother Syed Bashir-ud-Din, J., for perusal and consideration.