Punjab-Haryana High Court
Gurmit Singh vs State Of Punjab And Others on 21 September, 2012
Bench: Jasbir Singh, Rakesh Kumar Jain
In the High Court of Punjab and Haryana, at Chandigarh
Civil Writ Petition No. 6952 of 2011
Date of Decision: 21.9.2012
Gurmit Singh
... Petitioner
Versus
State of Punjab and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh, Acting Chief Justice.
Hon'ble Mr. Justice Rakesh Kumar Jain.
Present: Mr. H.S. Rakhra, Advocate for the petitioner.
Mr. J.S. Puri, Additional Advocate General, Punjab, for respondents No.1 to 3.
Mr. Rahul Sharma, Advocate for respondents No.4 and 5.
Mr. K.S. Boparai, Advocate for respondent No.6.
Jasbir Singh, Acting Chief Justice (Oral) Present is a case of blatant misuse of powers given to the Nagar Council (in short "the Council") and usurpation of the public property by some influential individuals. Without there being any rule or regulation to transfer the property worth crores, the land measuring 19 kanals 1 marla was ordered to be transferred by the Council vide resolution No. 33 dated 24.5.2010 (Annexure P3), in favour of respondent No.6. Prior thereto respondent No.6 had no legal existence whatsoever.
Civil Writ Petition No. 6952 of 2011 2
The sequence of events which the Court will give hereinafter clearly indicates that the entire exercise of getting the land transferred from the Canal Department, Punjab, to the Council was a camouflage to favour some influential and wealthy people of the area. It is apparent from the records that Rampura Phul is a historic town and the Council is in existence from the last so many decades. The Commercial activities are going on there and it is expected that the Nagar Council may be earning good revenue therefrom. As per the record, on 29.9.2009, the Council had passed a resolution No.61 wherein concern was shown regarding non-existence of health club, park etc., to be used by the residents of the Rampura Phul city. A concern was also shown regarding non availability of any rest house at that place. It appears that thereafter on 7.10.2009, Beopar Mandal, Rampura Phul had moved an application on the similar lines, a copy whereof has been placed on record as Annexure P1, indicating the same concern which was shown by the Council in its above resolution. In resolution dated 29.9.2009, it was proposed that after transfer of land, the Council will construct the club etc. for use of the general public. Respondent No.3-Sub Divisional Magistrate, Rampura Phul wrote a letter to the Deputy Commissioner, Bathinda on 13.10.2009 by making a reference to the resolution passed by the Nagar Council on 29.9.2009 and a letter of Beopar Mandal, Rampura Phul dated 7.10.2009. It was stated in the said letter that for playing of the children and walking of the residents of the city to remain fit, no proper place is available. It was further stated that for stay of the VIP persons, rest house needs to be provided. It was suggested that 25 Civil Writ Petition No. 6952 of 2011 3 kanals & 1 marla of land of Canal Department situated at the outskirts of the city may be transferred to the Council for the said purpose so that health club, park, rest house etc. could be constructed. In the meantime, it appears that the land was transferred from the Irrigation Department to the Council vide order dated 1.4.2010 passed by the State subject to a condition that the Nagar Council would first construct an office/building of the Lining Division/shed on the land of the Canal Department. But nothing was done. Not even a brick was laid down to construct the said office/building.
Surprisingly, even before transfer of the land, respondent No.6, as per the facts on record, vide its resolution dated 30.4.2010 decided that it be got registered under the Societies Registration Act, 1860. It was so mentioned in the resolution passed by the founder members of the said club, details of whom read thus:-
Sr. Name of Father's Address Occupation Designation Sign No. Member Name .
1 S.Sikander Sh.Kartar Village Former Cabinet Patron Sd/-
Singh Maluka Singh Maluka Minister,
Punjab
2 Sh.Uma Sh.Sadhu Village SDM, Rampura Chairman Sd/-
Shanker Ram Maluka
Gupta
3 Sh.Gupreet Sh.Sikander Village MD, Co-op. Bk. Executive Sd/-
Maluka Singh Maluka Maluka Member
4 Sh.Bhushan Sh.Lachhman Rampura Businessman Executive Sd/-
Bansal Dass Phul Member
5 Sh.Surinder Sh.Lachhman Rampura Businessman Executive Sd/-
Bansal Dass Phul Member
6 Sh.Parveen Sh.Kewal Rampura Businessman Executive Sd/-
Kansal Kansal Phul Member
7 Sh.Parveen Sh.Pyare Lal Rampura Businessman General Sd/-
Garg Phul Secretary
Civil Writ Petition No. 6952 of 2011 4
Sr. Name of Father's Address Occupation Designation Sign
No. Member Name .
8 Sh.Rajinder Sh.O.P.Jindal Rampura Businessman Executive Sd/-
Jindal Phul Member
9 Sh.Deepak Sh.B.L.Saraf Rampura Businessman Executive Sd/-
Saraf Phul Member
10 Sh.Manjit Sh.Mohinder Rampura Businessman Executive Sd/-
Singh Singh Phul Member
11 Sh.KulbhushanSh.Madan Lal Rampura Businessman Executive Sd/-
Garg Phul Member
12 Sh.Mahesh Sh.Surinder Rampura Businessman Executive Sd/-
Kumar Mohan Phul Member
13 Sh.Rahul GargSh.Ramesh Rampura Businessman Executive Sd/-
Kumar Phul Member
14 Sh.Pardeep Sh.Pawan Rampura Businessman Executive Sd/-
Kumar Kumar Phul Member
15 Sh.Shashi Sh.Kalyan Rampura Businessman Executive Sd/-
Bhushan Chand Phul Member
16 Sh.Mukesh Sh.Hari Ram Rampura Businessman Executive Sd/-
Garg Phul Member
17 Sh.Shashi Sh.Siri Ram Rampura Businessman Executive Sd/-
Singla Singla Phul Member
18 Sh.Jaswant Sh.Lachman Rampura Businessman Executive Sd/-
Rai Balloh Dass Phul Member
19 Sh.Amit Saraf Sh.Kamlesh Rampura Businessman Executive Sd/-
Saraf Phul Member
It is necessary to mention here that Sikander Singh Maluka, as per the bylaws of the Society, was made its Patron. The provision qua Patron reads thus:-
"9. PATRON S. Sikander Singh Maluka S/o Sh. Kartar Singh (Former Cabinet Minister, Punjab) resident of village Maluka, Distt. Bathinda shall be whole time Patron of the Society. He shall be the Supreme Respectable Personality of the club/society. The club shall work in the overall control of Patron. The other members of the Governing Body except Civil Writ Petition No. 6952 of 2011 5 Chairman, President, Secretary and Treasurer may be nominated/elected from the Board of Founders by the Patron with due discussion with the Chairman and President. He will also preside, conduct and regulate all the meeting of the society/club. The Patron shall have right to vote as founder member. He may suggest his views to the Governing Body, Board of Founders for the betterment of club/society."
It was stated that the above named person shall be the whole-time Patron of the Society/Club and no one shall have any right to change him. It was further provided that the Sub Divisional Magistrate, Rampura Phul shall always be a Chairman of the Society/Club. The member mentioned as serial No.3 of the list is son of the Patron of the Society. Other members of the Society/Club are the businessmen of the area. It was also provided that membership can be increased against a fee to be fixed by the Society and as per the information given by counsel for the petitioner, the membership fee was fixed at ` 51,000 per person.
If that is so, any common citizen would not be in a position to utilize the premises of the club which is to be constructed upon the Government land given free of cost to respondent No.6. It has also come on record that even before its birth, respondent No.6 wrote a letter to the Executive Officer, Municipal Council on 17.5.2010 showing its desire to construct Health Club, Park, Conference Hall, Restaurant, Guest Room etc. on the land in question at a cost of ` 2,00,00,000. The said letter was considered by the Council in its meeting dated 24.5.2010 and taking note of the same, the land was resolved to be leased out in Civil Writ Petition No. 6952 of 2011 6 favour of respondent No.6 for 99 years at the rate of ` 100 per year. Incidentally, respondent No.6 was also got registered as a Society only on 24.5.2010 when the above resolution was passed by the Municipal Council in its favour. Above fact shows that everything was done to suit the respondent No.6.
Counsel for respondent No.6 has tried to justify the lease in its favour by stating that the Society will use the premises for social good. However, this club has no history of any charitable work. It was not in existence when the idea of construction of a health club was mooted. It has also come on record that no invitation was given to the other institutions having history of social work to undertake the project. The land was leased out in favour of respondent No.6 contrary to the provisions of Articles 14 of the Constitution of India. Discrimination is a writ large. As such the lease cannot be approved.
Further, in pursuant to the issuance of notice, reply was filed by the State through Special Secretary to Government of Punjab, Department of Local Government, in paragraph No.4 whereof it is stated as under:-
"4. That there is no provisions/rules regarding lease of land by Municipalities, the State Government had been issuing administrative instructions from time to time and the relevant instructions issued vide letter No. 8/87/95- 2LGIII/20066, dated 13th November, 1995 (Annexure R-1/7), regulating the lease of land by the Municipalities are as under:-Civil Writ Petition No. 6952 of 2011 7
"2. Government has decided that while generally Municipal lands should be disposed off through open auction, in exceptional cases Municipal lands may be leased out with prior approval of Government but only in favour of those institutions which are purely charitable in nature and devoted to the welfare of children, women, widows, old age and disabled persons and orphans as also for institutions devoted to providing general health services, mental health services and running de- addiction centres.
3. With a view of ensure that only those institutions with established credibility and bonafides are allotted Municipal lands, they should have a minimum standing of five years to qualify for allotment. The bonafides of such institutions may be gone into by a Committee consisting of Deputy Commissioner, Regional Deputy Director and one representative of concerned Department.
4. The allotment of land would initially be made for a period of one year which could be extended depending upon the performance of the allottee and ensuring that the land so allotted is utilized strictly for desired purpose.
5. The new rates of lease money should be Civil Writ Petition No. 6952 of 2011 8 @ 10% of the market value of the land to be circulated on the basis of Collector's rates in case of charitable institutions and 20% for others in place of existing 5% and 10 % respectively.
6. The lease agreements should be carefully drafted so that in the event of violation of any clause of the agreement, the land reverts back to the concerned local body." (Emphasis supplied) It is categorically stated in the reply that there is no provision regarding leasing out of the land by the municipalities in the manner it has been done. It is further stated that as per directions issued by the State Government on 13.11.1995, it is provided that all the municipal lands should be disposed of through an open auction, however, only in exceptional cases with prior approval of the Government the municipal land can be transferred only in favour of the institutions which are purely charitable in nature and devoted to the welfare of children, women, widows, old age and disabled persons etc. and to those institutions which are involved in providing general health services, mental health services and running de-addiction centres. It is further provided that to get the land, the institutions must be having a minimum standing of five years to qualify for allotment. The bonafides of such institutions will be gone into by a Committee consisting of Deputy Commissioner, Regional Deputy Director and on representative of the concerned department. Initially, the allotment of land would be made for a period of one year which may be extended depending upon the performance of the Civil Writ Petition No. 6952 of 2011 9 allottee and to ensure that the land so allotted is utilized for the desired purpose. The price to be charged is also mentioned in the affidavit filed by the State.
In the present case, none of the conditions stand satisfied as has been noticed earlier. Respondent No.6 has not given history of such charitable work done by it.
Furthermore, it is desirable to lease out/sale property of the public institutions, if need be, by way of auction or by inviting tenders. It was so said by Hon'ble the Supreme Court in Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh (2011) 5 SCC 29, relevant portion whereof reads thus:-
"65. What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence etc. by the Civil Writ Petition No. 6952 of 2011 10 State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organizations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organizations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and/or nepotism violating the soul of the equality clause embodies in Article 14 of the Constitution."
The land appears to have been allotted for enjoyment of the wealthy people of the area. It has been brought to our notice that fee to become a member of the club/society has been fixed at ` 51,000 per member. The founder members are the politicians and the businessmen of the area and having no history of the social work. Upon consideration of the facts mentioned in the affidavit filed by the State, we had directed Civil Writ Petition No. 6952 of 2011 11 respondent No.6 on 13.9.2012 to place on record the list of its founder members, its aims and objects and also whether at any point of time, any undertaking was given to the Nagar Council by respondent No.6 that it will serve the people of the area and if so in what manner.
The list of founder members is available on record. The counsel for respondent No.6 states that the Patron of the Society, after being elected as a Cabinet Minister of the State, has resigned from the post. Be that as it may, even that fact will not give any right to the Society to keep the land with it. Nothing has been brought on record, to show that any undertaking has been given by respondent No.6 to serve the people of the area and the manner in which the services shall be rendered. The public land and the public money is required to be utilized with care and caution and as per rules. In the present case everything has been ignored to extend favour to respondent No.6. The Council; respondent No.6 and the State have failed to impress us that how the common man will be benefited with the construction of a Club wherein restaurant, guest house, conference rooms will be constructed and further the entry to the Club shall be restricted to the members only who obtained membership after paying a fee of ` 51,000.
In view of above, this writ petition is allowed. Action of the respondents in allotting the land on lease for 99 years vide its resolution dated 24.5.2010 and the orders passed thereafter stand quashed. The land is reverted back to the Canal and Irrigation Departments. If any construction has been raised thereon by respondent No.6, the Deputy Commissioner, Bathinda is directed to demolish the same within one Civil Writ Petition No. 6952 of 2011 12 month from today and hand over vacant possession of the land in dispute to the concerned department. The State of Punjab is also directed to circulate the letter dated 13.11.1995 to all the local bodies including Municipal Corporations, Municipal Councils and Municipal Committees to strictly comply with the above conditions for transfer of the municipal land mentioned in the said letter.
(Jasbir Singh) Acting Chief Justice (Rakesh Kumar Jain) Judge September 21, 2012 "DK"