Rajasthan High Court - Jaipur
Pratham Peethasth Goswami Bittalnath vs State & Ors on 18 February, 2011
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.4924/1998 Pratham Peethasth Goswami Bittalnath Versus The State of Rajasthan and others DATE OF ORDER --- February 18, 2011 PRESENT HONBLE MR.JUSTICE PREM SHANKER ASOPA Mr.N.K.Maloo, for the petitioner Mr.S.N.Kumawat, Addl. AG for the State REPORTABLE BY THE COURT
(1) By this writ petition, the petitioner has challenged the order dated 15.12.1990 (Anx.3) whereby the Administrator was appointed and the order dated 28.2.1998 (Anx.2) whereby the property of the Trust Shri Vitthal Nath Acharya Sanskrit Mahavidhyalaya, has been transferred to the State Government and further, merged in the Government Pathak Sadashiv Shastri Mahavidyalaya, Kota.
(2) Briefly stated, the facts of the case are that the petitioner is the Member and President of Shvi Vitthal Nath Pathshala Trust, which is an institution registered under the Rajasthan Public Trust Act w.e.f. 26.3.1965. But the said fact has been made clear in rejoinder while filing reply to the preliminary objections, stated by the petitioner that the deed of Vitthal Nath Pathshala Trust was executed on 27.12.1945 and the same was registered on 14.1.1946 (vide Annexure-5) and further, Vitthal Nath Sanskrit Mahavidyalaya Society was registered under the Societies Registration Act on 15.11.1956 and earlier to it, its bye laws were framed on 13.8.1956 (vide Annexure-6). It is further stated in the rejoinder that by typing mistake, in first sentence of para 2 of the writ petition, Shvi Vitthal Nath Pathshala Trust has been typed instead of Shri Vitthal Nath Sanskrit Mahavidyalaya and further, Shri Vitthal Nath Sanskrit Mahavidyalaya and Shri Vitthal Nath Acharya Sanskrit Mahavidyalaya are one and the same. It is then stated in the writ petition that the respondents were having no authority of law to take over the properties which belonged to the Trust and that too, without any compensation, in the garb of taking over the management or appointing the Administrator. It is also stated in the writ petition that there is no authority of law to take over the management or to appoint Administrator and to continue it for an indefinite period besides the action has been taken without any notice of hearing. All the aforesaid actions of the respondents are violative of Articles 14, 19 and 300A of the Constitution of India.
(3) The respondents have filed reply and taken the objection of not filing the power of attorney by the petitioner with the further objection that the writ petition has been filed on behalf of some other institution and that the disputed questions of fact are involved in the writ petition. It is further stated in the reply that challenge to the order dated 15.12.1990 is belated and there is no challenge to the order issued by the State Government to the Principal for execution of the gift deed which was executed on 16.7.1998.
(4) On merit, it has been stated in reply to the writ petition that since there was mis-management therefore, the Director, Sanskrit Education appointed the Deputy Director as the Administrator and the institution was receiving 90% grant-in-aid but the salaries were not paid to the staff, therefore, exercising power under Rule 3(7) of the Grant-in-Aid Rules, 1963, the State Government first appointed the Administrator and subsequently, issued the order dated 28.2.1998 (Anx.2) of taking over of the properties of the public trust and merging the same into Government Pathak Sadashiv Shastri Mahavidhyalaya, Kota, in the interest of the Institution. It is also stated that since the Managing Committee was not in existence, there was no question of giving any opportunity of hearing to it. However, there is no reply on merit, of violation of Articles 14,19 and 300-A of the Constitution of India, no reply on merit regarding the authority of the Principal to execute the gift deed and then taking over of the properties by the respondents. The gift deed has been placed on record subsequently by the respondents by filing miscellaneous application as Annexure M-A/1 dated 16.7.1998.
(5) As stated above, the petitioner in the rejoinder has stated that Shri Vitthal Nath Sanskrit Mahavidyalaya and further, Shri Vitthal Nath Sanskrit Mahavidyalaya and Shri Vitthal Nath Acharya Sanskrit Mahavidyalaya are one and the same.
(6) Submission of Mr. Maloo is that the property vested in the Trust and the Trust has right to manage the affairs of the institution and even if there was mis-management, then also, it was incumbent upon the respondents to issue notice to the Managing Committee formed by the Trust or the Trust before appointment of the Administrator vide order dated 15.12.1990 but no such notice was issued and further the respondents are having no authority of law to take over the properties of the Trust by directing the Principal to execute the gift deed dated 16.7.1998 and after passing order dated 28.2.1998 for merging of the said properties of the Trust Shri Vitthal Nath Pathshala Trust. Counsel for the petitioner further submits that at the relevant time, worth of the properties of the Trust was about Rs.70 lacs. Mr.Maloo then submits that the appointment of the Administrator for an indefinite period, taking over of the Management and merging the same into Government Pathak Sadashiv Shastri Mahavidhyalaya, Kota, vide order dated 28.2.1998 and executing the gift deed on 16.7.1998 after the merger are violative of Articles 19(1)(g) and 300A of the Constitution of India. In support of the aforesaid submissions, Mr. Maloo has placed reliance on a judgment of this Court in Rai Surajmal Bahadur Charitable Trust V. State of Rajasthan and others (2010 (Raj.) WLC (UC) 164.
(7) Submission of counsel for the respondents is that since the Managing Committee formed by the Trust was not able to manage the affairs of the Institution, the Dy. Director, Sanskrit Education was appointed as the Administrator by dissolving the Managing Committee vide order dated 15.12.1998. Subsequently, the Principal had executed the gift deed dated 16.7.1998 in favour of the State Government and earlier to it, by the order of merger dated 28.2.1998, the Institution was rightly merged in the Government Pathak Sadashsiv Shastri Mahavidyalaya, Kota along with its assets and the staff.
(8) I have gone through record of the writ petition and further considered the aforesaid submissions of counsel for the parties.
(9) Before proceeding further, it is necessary to quote Rule 3(7) of the Rajasthan Grant-in-Aid Rules, 1963, which are non statutory in character, as also the relevant paras 5,6,7 and 8 of Rai Surajmal Bahadur Charitable Trust V. State of Rajasthan and others (2010 (Raj.) WLC (UC) 164, on the issue of right to hold property by the Trust and taking over of the same by the State Government without any authority of law. The same are as under:
Rule 3(7) of the Rajasthan Grant-in-Aid Rules, 1963 3(7) In the event of the Government being satisfied that a serious dispute exists in the Managing Committee or Governing Board of the institution which hampers the smooth running Managing Committee is wilfully delayed for more than six months, the Government after giving them a show cause notice may suspend the Governing Body Council or the Managing Committee and appoint an Administrator to exercise control over the assets and to run the institution till a new Governing Body / Council or the Managing Committee is formed according to rules or the dispute is settled otherwise.
Paras 5,6,7 and 8 of Rai Surajmal Bahadur Charitable Trust V. State of Rajasthan and others (2010 (Raj.) WLC (UC) 164
5. As stated earlier the main emphasis of the petitioner is with regard to acquisition of Trust property by the State Government through the gift deed dated 11.11.1999. It is stated that under the order dated 9.11.1990, the State Government appointed Administrator of the Mahavidyalaya as the managing committee was not properly functioning thus, the management committee was suspended as per provisions of Rule 3(7) of the Rules of 1963. The Administrator, therefore, was having authority only to manage day to day affairs of the Mahavidyalaya and was not having any authority or title over the property and assets of the Trust. The gift deed, therefore, is absolutely without jurisdiction and beyond the authority of law. As per learned counsel for the petitioner the gift ded executed by Head Master of the Mahavidyalaya pursuant to the instructions given under the order dated 6.10.1999 is nothing but a flagrant violation of the constitutional right of the petitioner enshrined under Article 300-A of the Constitution of India. (emphasis supplied)
6. Learned counsel for the State per contra asserted that the State Government being managing Mahavidyalaya since 1990, considered it appropriate to take over the property where the institution was running and that was done looking to the poor condition of the building where the educational activities are undertaken. Looking to need of security required, it was considered in public interest to take over the entire premises.
7. From perusal of entire record the position that emerges is that the property where the Mahavidyalaya is running is of the Trust and it was the Trust that decided to have Mahavidyalaya at its immovable property. The State Government in the year 1990 looking to ill management of Mahavidyalaya decided to take over management of the institution and at that time the existing management committee was suspended. True it is, the Administrator appointed by the Government is required to lookafter the management and administration of the institute including protection of the building, where the educational activities were going on, but merely by taking over management of the institution the title of the assets does not transfer. The title of the assets vests with the Trust and the Administrator at the most would have managed those in interest of day to day activities or Mahavidyalaya. The Administrator was having no authority to acquire entire property with him or to further transfer the same to the State Government. The immovable property of the Trust, therefore, has been erroneously transferred to the State Government by Head Master of the Institution. It is well settled that acquisition of a property can be made only by authority of law that too by adhering the procedure prescribed to do so. In the instant matter, no such proceedings admittedly were conducted. (emphasis supplied)
8. In view of it, the transfer of property made under the gift deed by the Head Master of the Mahavidyalaya is absolutely without authority of law, hence, this petition for writ deserves acceptance, and therefore, the same is allowed. The transfer of immovable assets of the petitioner trust under the gift ded 11.11.1999 which was executed pursuant to the directions given by the Director, Sanskrit Education, Rajasthan, Jaipur on 6.10.1999 is declared illegal, hence, quashed.
(10) Having considered the facts of the writ petition and the law laid down by this Court along with the contentions of the respondents, this Court is of the view that the Trust has a right to continue to hold its properties and it cannot be divested under the non statutory Grant in Aid Rules. However, the same can be transferred by any other law made by the Parliament or the State Legislature, that too, after giving an opportunity of hearing to the petitioner and further by providing compensation therefor, in public interest.
(11) Adverting to the facts of this case., the Administrator was appointed under rule 3(7) of the Rules of 1963 which are non statutory in character and further, the power has not been exercised under any law made by the Parliament or the State Legislature for taking over of the properties of the Trust by executing the gift deed through the Principal, who had nothing to do with the properties of the Trust and thereafter acquire and transfer the same, therefore, the order of merger dated 28.2.1998 and the gift deed dated 16.8.1998 deserves to be quashed.
(12) As regards the appointment of Adminitrator without specifying the period as well as further direction to hold the election of the Managing Committee, submission of Mr.Maloo is that before appointment of the Administrator, an opportunity of hearing has to be given and further, it was obligatory on the part of the respondents to specify the period of the appointment of the Administrator with a further direction to hold the election of the Managing Committee of the Trust, therefore, the aforesaid orders of appointment of the Administrator and transfer of the property of the Trust are violative of Articles 14 and 19(1)(g) of the Constitution of India as well as the settled preposition of law laid down by the Supreme Court in Shri Rangaswami, The Textile Commissioner and others V. The Sagar Textile Mills (P) Ltd. and another (AIR 1977 SC 1516, para 2), Asom Rastrabhasa Prachar Samiti V. State of Assam and others (AIR 1989 SC 2126, para 24 ), Jilubhai Nanbhai Khachar etc.etc. V. State of Gujarat and another (AIR 1995 SC 142, paras 32,48 and 55) and IIT College of Engineering V. State of H.P. and others (2003) 7 SCC 73, para 12). The same are as under:
Para 2 of Shri Rangaswami, The Textile Commissioner and others V. The Sagar Textile Mills (P) Ltd. and another (AIR 1977 SC 1516)
2.As held by this Court in State of Uttar Pradesh V.Jogendra Singh, (1964) 2 SCR 197 at p.202: (AIR 1963 SC 1618 at p.1620) it is well settled that the word mayis capable of meaning must or shall in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Consiering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative. Directions of the kind envisaged by Cl.20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions are limited expresslyto a determinate period of time at the end of which a fresh review of facts and circumstances becomes obligatory. There is a fear that a direction not limited in point of time may continue to operate even after it has outlived its utility for the reason merely that the need to review it is not clearly perceived. Besides the manufacturers must know in order that they may organise their business in their own interest as well as in the interest of the community at large, as to how long any particular embargo is going to be operative. (emphasis supplied) Para 24 of Asom Rastrabhasa Prachar Samiti V. State of Assam and others (AIR 1989 SC 2126)
24. At the time when this Board was constituted under S.3 the Karyapalika and Byabasthapika Sabha duly elected were functioning and they had sufficient time to go on and in this view of the matter, we further direct that the Karyapalika and Byabasthapika Sabha which were in existence in 1984 when initially the action under the emergency provisions was taken followed by the notification under the Ordinance and the Act shall be restored back and they shall take over the management of the Samiti from the Board immediately but it is made clear that the Karyapalika and Byabasthapika Sabha which were functioning in 1984 and which we are restoring well within six months from the date of this Order will hold proper elections in accordance with the Constitution to elect a Byabasthapika and Karyapalika. This is necessary because the period of the Karyapalika and Byabasthapika Sabha which was functioning in 1984 has come to an end although from 1984 till today they were not allowed to function. It is further directed that the authorities, officers, the Board or appointed by the Board or the State Government shall restore back all assets and properties of the Samiti to the Karyapalika which will be restored immediately after the passing of this Order. The petitioners shall also be entitled to costs of this petition. Costs quantified at Rs.10,000/-. (emphasis supplied) Paras 32,48 and 55 of Jilubhai Nanbhai Khachar etc.etc. V. State of Gujarat and another (AIR 1995 SC 142)
32. In Subodh Gopal's case (AIR 1954 SC 92) Patanjali Sastri,C.J., held that the word 'deprived' in Cl.(1) of Art.31 cannot be narrowly construed. No cut and dry test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of Art.31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgment of would be so substantial as to amount to a deprivation within the meaning of Art. 31, if, in effect, it withheld the property from the possession and enjoyment by him or materially reduced its value. S.R.Das, J. as he then was, held that Cls.(1) and (2) of Art.31 dealt with the topic of `eminent domain', the expressions 'takenpossession of' or 'acquired' according to Cl.(2) have the same meaning which the word 'deprived' used in Cl.(1). In other words, both the clauses are concerned with the deprivation of the property; taking possession of or acquired used in Cl.(2) is referable to deprivation of the property in Cl.(1). Taking possession or acquisition should be in the connotation of the acquisition or requisition of the property for public purpose. Deprivation specifically referable to acquisition or requisition and not for any and every kind of deprivation. In Dwarka Das Srinivas of Bombay V. Solapur Spinning and Weaving Co.Ltd. 1954 SCR674 : (AIR 1954 SC 119), Mahajan, J., as he then was, similarly held that the word 'deprived' in Cl.(1) of Art.31 and acquisition and taking possession in Cl.(2) have the same meaning delimiting the field of eminent domain, namely, compulsory acquisition of the property and given protection to private owners against the State action. S.R.Das, J. reiterated his view held in Subodh Gopal's case (AIR 1954 SC 92), Vivian Bose, J. held that the word 'taken possession of' or 'acquired' in Art. 31(2) have to be read along with the word 'deprived' in Cl.(1). Taking possession or acquisition amounts to deprivation within the meaning of Cl.(1). No hard and fast rule can be laid down. Each case must depend on its own facts. The word 'law' used in Art.300A must be an Act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of the property shall be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive fiat or an order. Deprivation of property is by acquisition or requisition or taken possession of for a public purpose.
(emphasis supplied)
48. The word property used in Article 300A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and expropriated the property. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase 'deprivation of the property of a person' must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Art.300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by the Parliament or of a State Legislature, a rule of a statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner's consent. Prima facie, State would be the Judge to decide whether a purpose is a public purpose. But it is not the sole Judge. This will be subject to judicial review and it is the duty of the Court to determine whether a particular purpose is a public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall under Art.300A nor exercise of eminent domain an acquisition or taking possession under Art.300A. Generally speaking preservation of public health or prevention of damage to life and property are considered to be public purposes. Yet deprivation of property for any such purpose would not amount to acquisition or possession taken under Art.300A. It would be by exercise of the Police power of the State. In other words, Art.300A only limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Art.300A. In other words, if there is no law, there is no deprivation. Acquisition of mines, minerals and quarries is deprivation under Article 300A.
(emphasis supplied)
55. It is, therefore, clear that the appellants are not entitled to compensation or just equivalent of property they are deprived of or indemnification of the property expropriated i.e. Mines, whether worked or not, minerals whether discovered or not or quarries deprived by law made under Article 300A of the Constitution. The principles under Section 69A(4) of the Code are relevant. The resultant amount is not illusory. Thereby they are not void. We further hold that after the Constitution Fortyfourth Amendment Act has come into force, the right to property in Arts.19(1)(g) and 31 had its obliteration from Chapter III, Fundamental Rights. Its abridgment and curtailment does not get retrieved its lost position, nor gets restituted with renewed vigour claiming compensation under the garb `deprivation of property' in Art.300A. The Amendment Act neither receives wrath of Art.13(2), nor does S.69A become ultra vires of Art.300A. (emphasis supplied) Para 12 of IIT College of Engineering V. State of H.P. and others (2003) 7 SCC 73)
12. It is not possible for us to discredit the two inspection reports one by AICTE and the other by the team headed by the Director, IIT. No doubt, there is an apparent variation between the observations made in these two reports and the earlier reports of AICTE, as well as the report of CSIO which was prepared at the instance of the appellant. In fact, this Court directed the constitution of an independent team of experts when it was brought to the notice of the Court that there were conflicting reports. Such report should be given its due weight. Even though some of the comments, especially with regard to the buildings, are too widely made and even if there are some inaccuracies here and there as pointed out by the learned counsel for the appellant, the report cannot be simply ignored. Even if basic infrastructure in the form of buildings and land is available, that is not all. The latest report of the team constituted under the orders of this Court as well as the report of the AICTE furnished to the High Court and the earlier report of the university inspection team unmistakably indicate that there were deficiencies in many respects, especially in regard to the IT course and all was not well with the functioning of the College. However, there seems to be a good deal of improvement after the Administrator took over. The obligation to make up the deficiencies and to improve the general academic atmosphere lay on the shoulders of the college management, but unfortunately, no positive steps were taken. Undoubtedly, there was discontentment amongst the students and the teachers. The High Court taking stock of this factual situation and in order to ensure better administration and management, thought it fit to appoint an Administrator. However, the High Court apparently did not realise that there was no provision under which the management of an unaided private college could be taken over by the Administrator. In spite of our repeated query, none of the counsel was able to point out any provision either under the AICTE Act or the H.P. Education Act or the University Act permitting the authorities to take over the management of the institution. However, laudable the objective behind the steps taken by the High Court, it cannot be justified under law. The imposition of an Administrator to take over the reins of administration for an indefinite period of time would undoubtedly amount to interference with the right of administering and managing a private educational institution which is now recognised to be a part of the fundamental right under Article 19(1)(g) as held by this Court in T.M.A.Pai Foundation V.State of Karnataka. It would go against the principle of autonomy in regard to administration which has been emphasised by this Court in the saids case. In the circumstances, the jurisdiction under Article 226 could not have been exercised by the High Court to oust the private management and transfer the management to a court-appointed official.
(emphasis supplied) (13) Having considered the issue of appointment of the Administrator without specifying the period of his continuance and further direction to hold election of the Managing Committee, this Court is of the view that the said order deserves to be quashed.
(14) Accordingly, the writ petition is allowed, the order of merger dated 28.2.1998, the gift deed dated 16.8.1998 as well as the order of appointment of the Administrator dated 15.12.1990 are quashed and set aside with the following directions:
(i) The respondents are directed to restore the property to the Trust - Shri Vitthal Nath Sanskrit Mahavidyalaya, Kota;
(ii) and the Trust Shri Vitthal Nath Sanskrit Mahavidyalaya, Kota is directed to hold election of its Managing Committee/Executive Committee within a period of one month from the date of receipt of certified copy of this order and further appoint staff for the smooth functioning of Shri Vitthal Nath Sanskrit Mahavidyalaya, Kota within another one.
(Prem Shanker Asopa) J.
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