Punjab-Haryana High Court
Raunaq Education Foundation And ... vs State Of Haryana And Others on 31 July, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
CWP No. 16493 of 1998 (O&M) and another 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
Date of decision: July 31, 2013
1. CWP No. 16493 of 1998 (O&M)
Raunaq Education Foundation and another ........ Petitioners
Versus
State of Haryana and others .......Respondents
2. CWP No. 13676 of 2007 (O&M)
Raunaq Education Foundation ....Petitioner
versus
State of Haryana and others ...Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
-.-
Present: Mr. Ashok Aggarwal, Senior Advocate with
Mr. Deepal Sibal and Mr. Vipul Aggarwal, Advocates
for the petitioners
Mr. Kulvir Narwal, DAG, Haryana and
Mr. Dhruv Dayal, DAG, Haryana
for the respondent State
Mr. S K Hooda, Advocate and
Mr. Trishu Manwar, Advocate
for respondent - Gram Panchayat
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
By way of this order, I shall dispose of C.W.P. Nos. 16493 of 1998 and 13676 of 2007, as they involve adjudication of common questions of law and facts. However, for the sake of convenience, facts are being Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 2 taken from C.W.P. No. 16493 of 1998.
Petitioners - Raunaq Education Foundation (hereinafter referred as 'foundation') and Shri S K Sharma, trustee of the foundation, pray for issuance of a writ of certiorari quashing order dated 18.09.1998, passed by the Financial Commissioner and Secretary to Government, Haryana, Education Department, Chandigarh, resuming land measuring 76 acres 5 kanals and 5 marlas, except land measuring 7 acres left to be retained by the petitioner foundation.
Counsel for the petitioners submits that the foundation made a request to the Government of Haryana to allot land for establishment of an educational institution for imparting university education, technical, vocation, social and physical Education etc. in the year 1972. The State of Haryana acquired land measuring 76 acres 5 kanals and 5 marlas in village Bari, Tehsil Gannaur, District Sonepat, for the foundation. The foundation paid Rs.3,26,340/-, being value of the land as assessed by the Land Acquisition Collector. The possession of the land was handed over to the foundation on 24.01.1974. The State of Haryana failed to execute agreement with regard to terms and conditions of allotment of land till 26.02.1988, therefore, the petitioners were rendered helpless and could not start any activity of raising construction of building over the land or to start educational institution. The petitioners submitted building plans to the District Town Planner, Sonepat in February, 1990 and the said authority gave its response in May, 1990. The petitioners completed first phase of construction in March, 1992. Classes 11th and 12th were started from the session 1993-94. The second phase of construction was completed in May, 1997, including additional class rooms, staff room, record room, laboratory Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 3 block, Principal residence, Residences for staff members, Staff quarters, Library block, Playgrounds for football and cricket etc. The respondent- State issued notice on 24.09.1997, calling upon the foundation to show cause as to why the land should not be resumed for its failure to comply with the terms and conditions of agreement dated 26.02.1988.
Counsel further submits that show cause notice dated 24.09.1997 made reference to resolution No. 4 dated 16.10.1996 of the Gram Panchayat, order of Block Development and Panchayat Officer, Gannaur, kharsa girdawari and site inspection report, but these documents were neither appended with the show cause notice nor were supplied to the foundation, despite requests vide letters dated 13.10.1997 and 16.10.1997. It is further argued that the petitioners submitted an interim reply to the show cause notice on 13.10.1997 and made a request for joint inspection before taking any final decision in the matter. A joint inspection was conducted, but no copy of the said report was supplied to the petitioners despite request, vide letter dated 12.11.1997. It is further submitted that the petitioners were not afforded an opportunity of hearing, albeit the fact that it was one of the terms of the agreement and the petitioners made a request for personal hearing, in the interim reply. As the respondent passed the impugned order without giving any personal hearing, supply of documents referred to in the show cause notice and the joint inspection report, the order passed by the respondent is violative of principles of natural justice and, therefore, liable to be set aside. It is argued that the petitioners were unable to complete the third phase of construction for want of adequate funds as M/s Apollo Tyres limited and Bharat Steel Tubes Manufacturing Limited, the major source of finance to the foundation, faced financial difficulties. It Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 4 is further argued that a serious prejudice has been caused to the foundation for want of opportunity of hearing and, in case, the impugned order is allowed to sustain, the foundation would be rendered unsuccessful in accomplishing its task of imparting good education in public interest. In support of his contention, reliance has been placed on 'Union of India v. T.R. Verma' AIR 1957 (SC) 882, 'State of Orissa v. Dr. (Miss) BinaPani Dei' AIR 1967 (SC) 1269 and 'M C Mehta v. Union of India' AIR 1999 (SC) 2583.
Another submission made by counsel is that the power of resumption can be exercised only as a last resort. For this purpose, reference has been made to a judgment of the Supreme Court in 'Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and others' (2004) 2 Supreme Court Cases 130, Full Bench decision of this Court in 'Ram Puri v. Chief Commissioner, Chandigarh and others' AIR 1982 (O&H) 301, and other judgments in Davinder Kumar and another v. Estate Officer Urban Estate Panchkula, District Ambala and others AIR 1993 P&H 303, Ajay Singh Man v. State of Haryana The Punjab Law Reporter Vol CLIII (2009-1) 742, Rakesh Kumar and others v. Financial Commissioner, Revenue Punjab and others, The Punjab Law Reporter Vol CLIII (2009-
1) 790, Anil Kumar v. Union Territory, Chandigarh and others, The Punjab Law Reporter Vol CXLII (2006-1) 454.
Counsel for the State of Haryana as well as Gram Panchayat village Bari have submitted that the petitioner foundation failed to comply with the terms and conditions of the agreement dated 26.02.1988. The possession of the land was, admittedly, delivered to the petitioners on 24.01.1974. The petitioners remained silent for 12 years and made a request Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 5 for execution of agreement in the year 1986 only. The petitioners mis- utilised the land as they raised eucalyptus trees for their personal benefit. The foundation failed to raise any construction within a period of three years from the agreement dated 26.02.1988 nor made any request for extension of time. The respondent still waited for another five years for the foundation to complete the complex and to start the institution, but it failed, to do so. The foundation had raised construction on a small part of the land, nevertheless, the State of Haryana left much more area of land to the foundation. The seven acres of land is more than sufficient for running a higher secondary school, as per norms fixed by the State of Haryana. According to counsel, the petitioners with a mala fide intention wrote certain letters for supply of documents, knowing fully well that the documents asked for have no bearing on adjudication of the matter in controversy. As no prejudice has been caused to the petitioners for want of supply of documents and the State has taken a very reasonable and sympathetic view of the matter by leaving 7 acres of land to the foundation, the writ petitions are liable to be dismissed.
In reply, counsel for the petitioners contends that as the land had ditches and trenches, the foundation had to spend lot of time and money to make it fit for raising construction of school building.
I have heard counsel for the parties and perused the records. Before proceeding to adjudicate the controversy, it is appropriate to recapitulate the facts.
The foundation wrote a letter dated 01.04.1972 (Annexure P1), to the Secretary, Government of Haryana Education Department, Chandigarh, requesting for transfer of land measuring 76 acres to set up an Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 6 educational complex with modern facilities by stating that the foundation has constituted a trust to finance and control the affairs of education complex. The State of Haryana acquired 76 acres 5 kanals and 5 marlas of land in village Bari, belonging to the Gram Panchayat. The possession of the land was delivered to the foundation in January, 1974. The foundation, vide letter dated 20.01.1986 (Annexure P3), requested the Director of Education Schools, Government of Haryana, Chandigarh, for execution of conveyance deed. However, an agreement was admittedly executed on 26.02.1988. In February 1990, vide letter dated 15.02.1990 (Annexure P6), the foundation submitted site plan in triplicate to the District Town Planner, Sonepat. The District Town Planner, Sonepat, vide letter dated 19th May, 1990, informed the foundation that there is no requirement to seek approval for construction of the proposed complex building. The respondent issued notice dated 24.09.1997 (Annexure P10) calling upon the petitioners to show cause as to why the remaining part of the land, other than land under school building and some adjoining land as per norms fixed by the State of Haryana for setting up of a school up to senior secondary level, may not be resumed. The petitioners submitted an interim reply on 22.10.1997 (Annexure P14) and a request was made to carry out joint inspection of the complex and to provide an opportunity of hearing before taking decision in the matter. A joint inspection was conducted in pursuance of the request of the petitioners and thereafter, the impugned order was passed resuming the land except an area measuring 7 acres underneath the building along with some additional area.
It is important, at the first instance, to advert to the terms and conditions of the Bimbra Mohan Lal 2013.08.29 16:20 agreement. A relevant extract from agreement dated I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 7 26.02.1988 is as under:-
a) That the land shall be used for the construction of Foundation Complex;
b) That the foundation shall not except with the previous sanction of the Govt. use the land for any purpose other than (a) above;
c) That the time within which the building or work shall be constructed or executed shall not exceed three years from the date of the transfer of the land to the Society;
d) That where the Government is satisfied after such enquiry as may deem necessary that the foundation was prevented by reasons beyond its control from constructing the building or work within the time specified in the agreement, the Government may extend the time for that purpose by a period not exceeding one year at a time so however, that the total period shall not exceed three years;
e) That if the foundation is wound up or it commits breach of any of the conditions provided for in the agreement, the Govt. may make an order declaring the transfer of the land to the society as null and void where upon the land shall revert back to the Govt.
and directing that an amount not exceeding one fourth of the amount paid by the society to the Govt. as the cost of acquisition under clause (i) of Section 41 of the Act shall be forfeited to the govt. as damages and the balance shall be refunded to the foundation and the order so made shall be final and binding; Provided further that if there are any buildings on the land at the time of resumption, the Govt. may at its option either purchase the buildings on payment of their estimated value at its own time or direct the Foundation to remove the buildings at its own cost within such time as may be allowed by the Govt.
f) That if the foundation utilizes only a portion of the land for the purpose for which it was acquired and the Govt. is satisfied that the society can continue to utilize the portion of the land used by it even if the un utilised part thereof is resumed, the Govt. may make an order declaring the transfer of the land with respect to unultised portion thereof as null and void whereupon such untulised land shall revert to the Govt. and directing that an amount not exceeding one fourth of such portion of the amount paid by the foundation as cost of acquisition under clause (i) of Bimbra Mohan Lal Section 41 of the said Act as it is relatable to the untulised 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 8 portion of the land shall be forfeited to the Govt. as damages and the balance of the portion shall be refunded to the provisions of clause (g) be final and binding (sic);
i) where the foundation commits a breach of any terms of the agreement, the Govt. shall not make an order under Clause 5(e) or 5(f) above unless the society has been given an opportunity of being heard in the matter.
Clauses (c) and (d) of the agreement make it clear that the foundation was obliged to complete the construction and execute the work within three years of the agreement dated 26.02.1988 (Annexure P-5) or within the period extended by the State, if any, failing which, it would entail consequences envisaged in clauses (e) or (f) of the agreement, at the discretion of the State, however, subject to an opportunity of being heard to the foundation.
The grievance of the foundation is that as the impugned order has been passed without supplying the documents referred to in the show cause notice dated 24.09.1997 (Annexure P-10) and copy of the joint inspection report and the foundation has been deprived of an opportunity of being heard, provided in the agreement and a request for personal hearing, in the interim reply, the impugned order is liable to be set aside, being in violation of the principles of natural justice.
Before addressing the factual controversy involved in the instant case, it is appropriate to examine the legal principles of natural justice in the light of judgments referred by counsel for the petitioners and various other judgments relevant to the issue. In 'State of Orissa v. Dr. (Miss) Binapani Dei' (supra) relied by the petitioners, relating to question of date of birth of Dr. Binappani Dei, it has been held as quoted thus:- Bimbra Mohan Lal
"It is true that some preliminary enquiry was made 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 9 by Dr. S Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State."
In Kashinath Dikshita v. Union of India and others, (1986) 3 SCC 229, Hon'ble the Supreme Court, in view of the principles embodied in Article 311 (2) of the Constitution of India, has held that the order of dismissal is violative of Article 311 (2), inasmuch as, the appellant had been denied reasonable opportunity of defending himself as the appellant was not supplied the copies of the relevant statements and documents, which deprived him an opportunity to prepare his defence, cross-examine the witnesses and point out the inconsistency with a view to show that the allegations are incredible.
In the case of State of U.P v Shatrughan Lal and another, Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 10 (1998) 6 SCC 651, it was held that if charged employee is required to submit reply to charge sheet without having copies of the statements recorded during preliminary enquiry, he is deprived of opportunity of effective hearing. Further held that supply of copies is also necessary where witnesses making the statements are intended to be examined against him in regular enquiry.
The Hon'ble Supreme Court in Bar Counsel of India v. High Court, Kerala, (2004) 6 SCC 311 held that the principles of natural justice cannot be put in a strait jacket formula, it must be viewed with flexibility and when there is complaint of violation of principles of natural justice, the Court may insist on proof of prejudice before interfering or setting aside an order.
In M.C.Mehta v Union of India, 1999 AIR (SC) 2583, the Hon'ble Supreme Court of India, after referring to a series of decisions rendered by the Courts in foreign land, has recorded its conclusion, which reads as follows:-
"We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the Courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S K Sharma, 1996 (2) S.C.T. 568:
1996(3) SCC 364, Rajendra Singh v. State of M.P. 1996(5) SCC 460, that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended Bimbra Mohan Lal for individual benefit and where a provision is 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 11 intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived."
Another relevant judgment Indu Bhushan Dwivedi v. State of Jharkhand and another, (2010)11 SCC 278, relates to service matter. The Hon'ble Supreme Court has held that "..........however, every violation of rules of natural justice may not be sufficient for invalidating action taken by competent authority/employer and Court may refuse to interfere if it is convinced that such violation has not caused prejudice to affected person/employee."
In a recent judgment M/s A.S. Motors Pvt. Ltd. V. Union of India and others, 2013 (2) R.C.R. (Civil) 323, the Hon'ble Apex Court, after due consideration of the observations made from time to time in various cases, particularly the decision in Aligarh Muslim University v. Mansoor Ali Khan, 2000(4) S.C.T. 313, wherein the Court with approval quoted the following observations of Sir Willam Wade (Administrative Law, 9th Edn. Pp.468-471) "... ... it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent... There must also have been some real prejudice to the complainant;
there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth."
has arrived at the following conclusion:-
Bimbra Mohan Lal2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 12
"Absence of any allegation of mala fides against those taking action as also the failure of the appellant to disclose any prejudice, all indicated that the procedure was fair and in substantial, if not strict, compliance with the requirements of Audi Alteram Partem."
Now reverting to the controversy, as stated earlier, the foundation has raised two grievances.
The first plea is that the foundation has not been supplied copies of the documents referred to in the show cause notice dated 24.09.1997, i.e., resolution No. 1 dated 14.10.1996, passed by the Gram Panchayat of village Bari, resolution No. 4 dated 16.10.1996, passed by the Panchayat Samiti of Gannaur, District Sonepat, letter No. 1111/DRAW-2 dated 04.11.1996, vide which, these resolutions were forwarded by the Deputy Commissioner to the Director Secondary Education, Haryana and the site inspection report with regard to nature and extent of construction allegedly raised by the foundation and the report in regard to joint inspection conducted in pursuance to request of the foundation in the interim reply.
The foundation was admittedly supplied a copy of letter No. 1111/DRAW-2 dated 04.11.1996.
A perusal of show cause notice dated 24.09.1997 (P-10) would reveal that the decision taken by the Gram Panchayat of village Bari, vide resolution No. 1 dated 14.10.1996 and the decision of the Panchayat Samiti, vide resolution No. 4 dated 16.10.1996 have been clearly and sufficiently incorporated in the notice itself. The notice also contains the area with particular khasra numbers utilized by the foundation for the purpose of Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 13 construction as noticed during inspection of the site. A relevant extract from the show cause notice reads as follows:-
"The foundation utilized only the above referred land measuring 18 kanals 2 marlas comprised in khasra no. 99/22-24, 102/3-4-7-8 for the purpose mentioned in the agreement."
It has been further mentioned that "on the basis of site inspection, it has been found that five tubewells, including one for the main school building have been installed in various parts of the remaining vacant land and the same are being used for watering the trees, which have been planted in various pockets of the said land for the benefit of the foundation."
As the respondent has reproduced the relevant and material part of these documents in the show cause notice itself, it appears that the foundation knowing fully well that it has no defence to make, wrote letters for supplying documents to delay the matter and create evidence in its favour.
This apart, the non-supply of these documents otherwise lost its relevance in view of the fact that a joint inspection of the site was conducted, after the show cause notice.
The only plea for consideration is, whether non-supply of copy of joint inspection report amounts to violation of principles of natural justice.
To adjudicate this issue, it is pertinent to appreciate the background of the entire case.
The foundation approached the State of Haryana in April, 1972, Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 14 vide letter dated 01.04.1972 (Annexure P1) for acquiring land belonging to Gram Panchayat Village Bari claiming that it intends to set up an educational institution being one of the best in the area having all modern facilities for educational development and training, preference to be given to the residents of Haryana. It was represented that a substantial amount will be spent on development of the institution in the next few years. Land measuring 76 acres 5 kanals and 5 marlas belonging to the Gram Panchayat, Bari was acquired by the State of Haryana and possession thereof was delivered to the foundation in January 1974. The foundation remained silent for a period of 12 years and did not initiate steps to start the work much less to complete the project.
Indisputably, till January 1986, the foundation did not contact the Government of Haryana for completion of formalities and it is for the first time, vide letter dated 20.01.1986 (Annexure P3), the petitioners made a request for execution of conveyance deed. The long silence of the petitioners for a period of 12 years reflects their commitment to the stated object to start an educational institution with modern facilities, in public interest.
The petitioners have made a vain attempt to justify their silence till 1986 by raising an argument that the land was uneven, so it required lot of time and resources to level it. The plea of the petitioners that land was uneven is not substantiated by reference to any material on record. On the contrary, the petitioners have admitted that land was used for raising Eucalyptus trees and the income from sale of trees was used for the purpose of construction.
Bimbra Mohan Lal 2013.08.29 16:20
This fact also gets corroborated from the report of the Local I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 15 Commissioner. On 16.08.1999, this court passed an order appointing Shri Sanjiv Sharma, Advocate, as a Local Commissioner. A relevant extract from order dated 16.08.1999 reads as follows:-
"Arguments heard.
After conclusion of the arguments, learned counsel for the petitioners, on being instructed by his clients, stated that substantial construction has been made at the site. He invited our attention to the site plan which is available at page 117 of the paper book and pointed out the areas where constructions have been made. We have identified those areas with the mark '√'. Those spots where construction has not been made have been marked as 'x'.
With a view to verify the correctness of the statement made by the petitioners, we deem it appropriate to appoint a Court Commissioner. Shri Sanjeev Sharma, an Advocate of this Court, has agreed to act as the Court Commissioner.
Shri Sharma says that he will inspect the site at 11.00 a.m. On 21.08.1999. Representative of the petitioners and the District Education officer, Sonepat may remain present at the site.
Shri Deepak Sibal, counsel for the petitioners shall give a copy of the site plan to "Shri Sanjeev Sharma who may inspect the file of the case and mark 'x' which we have put on the site plan."
The Local Commissioner submitted a detailed report depicting the extent of construction and vast area covered under Eucalyptus trees of different height. An extract from the report, in regard to growth of Eucalyptus trees is quoted for facility of reference:-
"d). There is a road that runs through the school area connecting various buildings. This road is brick lined but has a great deal of grass growing on the same. Towards what is termed as 'Principal's Residence' there is a Eucalyptus Grove on both sides of the road. The trees are growing in the what is shown as 'Children Part' and 'Girls Hostel'. The height of the trees varies and appears to an average of 4 to 6 feet.Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 16
These trees also grow along the area bordering the National Highway. In some area, the height of the trees appears between 10 to 12 feet."
l) To the outer extremities of the plot there is undergrowth with Eucalyptus trees growing at varying heights. The trees are not very tall in most of the area (4-5 feet on an average, however, at some places the trees are taller."
An agreement was executed between the parties in February, 1988. The petitioners agreed to complete the construction of building and execution of work within three years, obviously, with an understanding to start an educational institution, proposed in Annexure P1. The petitioners again became silent for next two years as is apparent from letter dated 15.02.1990 (Annexure P6), vide which building plans were submitted. In May 1990, it was conveyed to the petitioners that there is no requirement of approval of site plans by the District Town Planner, Sonepat, vide letter dated 19.05.1990 (Annexure P7).
As can be gathered from the plea of the petitioners, the construction was intended to be raised in a phased manner, in three phases. It is pertinent to mention that the petitioners for the reasons best known to them have not made it clear in the pleadings or otherwise, what was to be constructed in each phase.
The petitioners have stated that the first phase of construction was completed by March 1992. It is not proved, what was included in first phase and what was the extent of construction raised by March 1992, which is even otherwise beyond the period of three years from the date of agreement (26.02.1988). The petitioners have raised a vague plea that they raised construction in phases and the first phase was completed by March Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 17 1992.
The petitioners have not produced any document(s) in regard to expenditure incurred in levelling the land, constructing the building in first phase or second phase. However, the petitioners have placed on record a document (Schedule of fixed assets and depreciation as on 31st March, 1997) (Annexure P2). The petitioner foundation is admittedly running another school at Gannaur. The aforesaid document does not make reference to expenditure on school building in village Bari, Tehsil Sonepat. In this view of the matter, the document cannot be connected with building on the disputed site.
To ascertain the extent of existing construction on the site, the Local Commissioner appointed by the Court on 16.08.1999, was directed to make a report of areas where construction has been made and identified with mark '√' and areas where construction has not been made and marked as 'X'. The report of the Local Commissioner, in this regard, is extracted below:-
"1. xx xx xx
2. xx xx xx
3. Accompanied by the persons stated above, I took a walk through the entire premises keeping in view the specific areas marked with either 'X' or '√'. I also took 23 photographs which are annexed as Annexure C-1. Under each photograph, I have marked the site depicted along with its location on the sketch provided by counsel for the petitioner.
4. The following areas were marked with 'X' on the sketch and the situation as it exists on ground in this regard is as under:-
Name of site State of construction
a. Auditorium Not constructed
b. Gymnasium Not constructed
c. Hockey Field Not constructed
Bimbra Mohan Lal
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CWP No. 16493 of 1998 (O&M) and another 18
d. Pool Not constructed
e. Institution of Business management Not constructed
f. Hostel for Institute of Business Not constructed
Management
g. Girls Hostel Not constructed
5. The following areas marked with '√' on the sketch and the situation as it exists on ground in this regard is as under:-
Name of site State of construction
a. School Building Constructed
b. Library with Toilets Constructed
c. Boys Hostel Under construction
d. Staff residences between boys Not constructed
and Girls hostel
e. Staff residences between Girls One constructed
and Vice Principal's residence
6. Apart from the above, there was some other construction which was observed as stated below:-
Name of Site State of Construction
a. One Mali quarter on the Extreme Constructed
left of the plot
b. Seating ramps and circular wall Constructed
around the Cricket ground
c. One Tubewell between the two Constructed
proposed staff quarters between
the Boys and girls Hostel
d. One Septic tank in the same Under construction
location as 'c above
e. One septic tank on the extreme Constructed
right of the plot
f. One tubewell close to the proposed Constructed
Vice Principal's residence
g. Principal's residence Constructed
7. While walking through the premises, I made the following observations:-
a. xx xx xx
b. The main school building consists of 8 class rooms, the Principals
office, 3 laboratories one each for Biology, Chemistry and Physics, 1 Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 19 computer room, staff room, toilets and water refreshment rooms, separate changing rooms for both boys and girls. The building is complete as per the layout in the sketch. There is a paved assembly area to the rear of the building.
c. There is a residence for the Principal which is not in use and appears to be new construction.
d. Already quoted above
e. There exists one staff quarter on the right side of the plot (as seen
facing the school) whereas two such buildings are depicted on the sketch. The quarter is not in use.
f. Between the location for the Girls Hostel and the constructions coming up for the Boys Hostel there is a tubewell and a septic tank constructed upto its roof level.
g. The boys Hostel is under construction with roofing complete for most of the building. The building is partially constructed for the ground floor and after it is completed is stated to be a 2 storeyed building with 9 dormitories, 2 common rooms, 1 dinning room with kitchen and stores. h. There is a boundary wall running along the right side of the plot ( as seen facing the school) to its rear. For most of the rear portion and to the left side of the plot there is barbed wire fencing. i. The Cricket stadium is an oval shaped ground with a ramp made around its periphery allowing a raised seating arrangement on two sides and a low retaining wall running all around it. The stadium was in use with some children playing.
j. On the extreme left side of the plot (as seen facing the school) there exists one building which falls in the area depicted on the sketch as two Mali quarters.
k. The Library consists of one large hall with two mezzanine floors and additional rooms which are stated to be for a post office, bank and book store. There are no books in the hall and it is not in use. There is a room in the main school building which is in use as a library.
l. Already quoted above.
m. There were children playing in the play field and classes were also
being conducted. In the Centre of the play field there is a football field. There is an athletics track running around this main play field. The track is a mud track which has a low retaining wall running on both sides around the entire field. Except for about 100 meters, where the grass was recently removed, the track is covered with grass. The area of a volley ball field too has a low retaining wall but the field itself is completely covered Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 20 with grass. The Basket ball court has a cemented floor and is surrounded by grass."
The petitioners have not challenged correctness of report of the Local Commissioner. A perusal of the report reveals that there is no construction in the area identified as 'X'. On the other hand, one of the areas marked as '√' does not have construction, another is reported to be under construction and out of staff residences between Girls hostel and Vice Principal's residence, only one residence has been constructed.
The petitioners have not raised a plea that area under construction as depicted in the report of Local Commissioner falls outside 7 acres of land left at the disposal of the foundation. There is no challenge to the plea taken by the State that 7 acres includes area under construction plus additional area, sufficient to cater to the requirements of a Senior Secondary School, as per norms fixed by the State of Haryana.
The petitioners have, however, raised a plea in sub para (iii) under heading GROUNDS that 'there were two fields i.e. football and Cricket ground which have been made. Even if it is accepted that the petitioners made the 'grounds' which are not contiguous to area left at the disposal of the foundation, the State was not obliged to allow retention of the football and cricket ground, particularly in the circumstances that even area under construction could be resumed in exercise of powers as per clause (e) of the agreement.
It is appropriate to notice that actual running of the school was the primary consideration of the State of Haryana in allotting 76 acres of land to the foundation. The petitioners have not produced any documents in regard to admission of children, the year in which the admissions were Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 21 started, the classes in which the admissions were made, the number of children admitted in a particular class, the number of faculty members, their date of appointment, qualifications etc. and above all the performance of the school children in academics or extracurricular activities. It is also doubtful if the school has been affiliated with any educational board. I have no hesitation to hold that the petitioners have intentionally withheld this information as revelation thereof would completely shake their tall claim to start an educational institution, one of the best in the area to impart quality education.
Admittedly, the petitioners did not start construction of stated third phase by the time, they filed the petition. The joint inspection was conducted in October/November 1997. A Local Commissioner was appointed by this Court in August 1999. Shri Sanjeev Sharma, Local Commissioner inspected the site in the presence of the petitioners and made a detailed report in compliance with order dated 16.08.1999. The petitioners have not challenged the correctness of this report with regard to extent of construction. The joint inspection, in no circumstances, could reveal something more than what is contained in the report of the Local Commissioner. Under these circumstances, the supply or non-supply of joint inspection report also loses its significance. In other words, no prejudice has been caused to the petitioners for want of supply of joint inspection report.
The petitioners have tried to justify their failure to complete the project for want of adequate funds due to financial difficulties of their funding sources. The possession of land was delivered in January 1974. The foundation should have shown keenness to complete the project at the Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 22 earliest. It remained silent for 12 years. Thereafter also, it did not complete the project within three years of entering into agreement in February 1988. The plea of inadequacy of funds more than 25 years after their approaching the State of Haryana for allotment of land cannot hold ground. Rather the foundation should have, on its own, surrendered the land to the State of Haryana if it was not able to complete the project due to inadequacy of funds.
The second plea is that the foundation has not been provided an opportunity of personal hearing. A perusal of clause (i) of the agreement shows that the foundation (described as 'society' in the agreement) is to be given an opportunity of being heard. The words 'an opportunity of being heard' cannot be construed as an opportunity of personal hearing. 'The opportunity of being heard', is to be construed that before any decision is taken in the matter, in view of clauses (e) or (f) of the agreement, the foundation must be apprised of the proposed action and to invite response thereto. This has been done by the respondents by issuing notice dated 24.09.1997. In this view of the matter, the mere fact that the foundation in the interim reply made a request for personal hearing does not cast an obligation upon the respondent State to provide personal hearing to the foundation nor failure to do so would mean violation of principles of natural justice.
In view of the facts and circumstances discussed herein above, the judgments relied upon by counsel for the petitioners have no bearing on adjudication of present controversy. On the contrary, the petitioners have not alleged any mala fide on the part of the State of Haryana and have also failed to prove any prejudice for non-supply of joint Inspection report and Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 23 non-granting of personal hearing.
Another plea raised by the petitioners that an action to resume land or building should be taken as a last resort, cannot be accepted in the peculiar circumstances of this case. The petitioners failed to raise any construction within three years of the agreement. They have not produced any document to substantiate their plea that failure to comply with the terms and conditions was due to reasons beyond their control. They did not approach the State for extension of time for completing the project. Their plea that they had utilized more than 50% area is falsified and belied from the report of the Local Commissioner appointed by this court in August 1999. They have failed to fulfill the object, for which the land was acquired and handed over to the petitioner in January 1974. The petitioners, therefore, cannot derive any benefit from the cited authorities.
The State of Haryana acquired more than 76 acres of land belonging to the Gram Panchayat, Village Bari. The Gram Panchayat's land necessarily denotes land meant for common purposes of the village. The people of the village have been deprived of the benefits of this common land due to a false promise made by the foundation. As the foundation utterly failed to achieve the object for which the Gram Panchayat was deprived of land of its ownership, no fault can be found in the decision of the State Government. Rather, the officer who passed the impugned order has taken a very liberal and reasonable view of the matter and left 7 acres of land at the disposal of foundation, though the entire land could be resumed. In view of the above, the contention of the petitioners that the impugned order is vitiated for want of supply of documents, joint inspection report or an opportunity of personal hearing is devoid of merit and is accordingly Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh CWP No. 16493 of 1998 (O&M) and another 24 rejected. Similarly, the other plea that resumption order could not be passed in the circumstances of the present case is untenable.
Before parting with this order, it is appropriate to mention that the land resumed by the impugned order has been re-vested in the Gram Panchayat. A mutation has been sanctioned in favour of the Gram Panchayat, which has been challenged in CWP No. 13676 of 2007. The land after resumption would now be available for common benefit of the villagers.
As an upshot of the discussion made hereinabove, the foundation is guilty of using the land for personal gain, failed to complete construction in compliance with terms and conditions of the agreement even uptill 1999 and further defaulted in proving true to its promise/representation made to the State as back as in the year 1972, rather deprived the villagers of huge land meant for their common benefits, therefore, in my considered opinion, allowing the prayer of the petitioners would amount to putting premium on their failures. The petitioners, therefore, cannot be held entitled to relief in exercise of jurisdiction under Article 226 of the Constitution of India.
For the foregoing reasons, the petitions are dismissed. No orders as to costs.
(Rekha Mittal) Judge July 31, 2013 mohan Bimbra Mohan Lal 2013.08.29 16:20 I attest to the accuracy and integrity of this document Chandigarh