Rajasthan High Court - Jaipur
Sanjay Kumar Singh vs State Of Rajasthan And Ors on 24 July, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Writ Petition (PIL) No.7669/2006 Sanjay Kumar Singh vs. State of Rajasthan & Ors. 24.07.2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. G.K. Garg, Sr. Counsel assisted by Mr. Laxmi Kant, for petitioner.
Reportable Mr. R.N. Mathur, Sr. Counsel/ Special Counsel for State assisted by Mr. Ankul Gupta, for respondent No.6-Rajasthan State Haj Committee.
Mr. Rinesh Gutpa, for respondent No.3 & 4-JDA.
Mr. Dinesh Yadav, AAG with Mr. Subhash Singh, for respondents No.1, 2 & 5-State.
The writ petition raises the question of validity of the land allotted to the Rajasthan State Haj Committee vide orders dated 20.10.2004 and 30.11.2005 as well as lease agreement dated 06.01.2006 for establishment of Haj House for providing facilities to the pilgrims undertaking journey to Makka Madina for Haj.
Petitioner has averred in the petition that he is resident of Jaipur. He is a businessman and public spirited person. He is questioning allotment of the land to the Rajasthan State Haj Committee which according to him is made without following due process of law. The land allotted to Rajasthan State Haj Committee is pasture land. Thus, it could not have been allotted by the State Government and the Jaipur Development Authority (hereinafter referred to as 'the JDA'). The allotment was made by order dated 20.10.2004 issued by the Deputy Commissioner, Zone-8, JDA and order dated 30.11.2005 issued by the Deputy Secretary, Urban Development & Housing Department, Government of Rajasthan, Jaipur. The lease deed was executed on 06.01.2006 by the JDA in favour of the Rajasthan State Haj Committee. The Rajasthan State Haj Committee is constituted under the provisions of the Haj Committee Act, 2002 (hereinafter referred to as 'the Act of 2002') and the Rules have been framed thereunder by the State Government. The land ad-measuring 5 bighas comprised in Survey No.157 situated at village Ramsingpura Bas, Tehsil Sanganer, District Jaipur has been allotted to the Rajasthan State Haj Committee. It is also averred that the land worth crores of rupees has been allotted on token price of Rs.1/- without inviting applications and the pasture land could not be allotted for the purpose of construction of Haj House.
It is also averred in the petition that earlier in 2003, one bigha land was allotted to the Rajasthan State Haj Committee for the purpose of construction/establishment of Haj House (Centre for Muslim Pilgrims) near 'Karbala', Jal Mahal, Jaipur and the then Chief Minister of State of Rajasthan has laid the foundation stone. Thereafter, fresh elections were held and another party came into power and has allotted 5 bighas of the land to the Rajasthan State Haj Committee. Initially the allotment was proposed at the rate of Rs.1,000 per square meter as mentioned in the order dated 20.10.2004 issued by the Deputy Commissioner, Zone-8, JDA filed as Annexure-1 to the writ petition. Thereafter the proposal was modified on 06.09.2005 and the land ad-measuring 2 bighas was proposed to be allotted free of charge and 3 bighas of land at the reserved rate for institutions. Thereafter, the Deputy Commissioner, Zone-8, JDA issued order dated 17.09.2005 directed deposit of 'Nazrana' amount. On 30.11.2005, the Deputy Secretary, Urban Development & Housing Department communicated approval of the State Government to the Secretary, JDA to allot the aforesaid 5 bighas of land on token price of Rs.1/- on lease for a period of 99 years. Thereafter, lease deed was executed on 06.01.2006.
It is submitted that pasture land could not have been allotted in view of the provisions contained in the Rajasthan Panchayati Raj Act, 1994 and the Rules 169 & 170 of the Rajasthan Panchayati Raj Rules, 1996. The JDA has not followed due process for allotment of the State largesse while making the allotment of land to the Haj Committee. The nature of the pasture land cannot be changed for construction of the Haj House, as such, lease has been illegally granted.
In the return filed by the respondents No.1 & 2 State Government, it is contended that the petition has been filed with some political motives; it cannot be said that it has been filed to cater the public interest. In the master plan, the land is earmarked for institutions. According to the provisions contained in the Rajasthan Urban Improvement Trust (Disposal of Urban Lands) Rules, 1974 (hereinafter referred to as 'the Rules of 1974'), the commercial lands are to be disposed of by public auction and rest of the land can be allotted with prior approval of the State Government on the rates decided by the State Government. Rule 18(1) of the Rules of 1974 empowers the State Government to determine the rate for the purpose of allotment; it can be given free of cost also. Master plan has to prevail for the purpose of use of the land. There is no violation of the master plan while making allotment of land to the Rajasthan State Haj Committee; it has not been allotted to lure the Muslim Voters. One bigha of land was allotted on 21.08.2003 by Jaipur Nagar Nigam. The said land was insufficient to cater the needs of the Haj House in view of the fact that large number of Hajis used to go every year for Haj Pilgrimage. Hence, prayer was made to allot sufficient land, same was entertained. Thus, the action was taken in accordance with law. Once the land had been transferred to the JDA, its nature had been changed from pasture to institutional. As such, the provisions of Rajasthan Panchayati Raj Act, 1994 are not applicable in the instant case; provisions of Section 54 of the Jaipur Development Authority Act, 1982 (hereinafter referred to as 'the JDA Act') are applicable; due procedure of law has been followed while making the allotment. Thus, the land has rightly been allotted.
In the return filed by the respondents No.3 & 4-the JDA and its Deputy Commissioner, JDA, it is additionally contended that the land which was allotted earlier was insufficient and it was requested that the Haj House should be near to Airport so that Hajis can be prevented from unnecessary trouble while travelling to Makka-Madina in Saudi Arabia. After formation of the JDA, the land has been transferred in the name of the JDA. Thus, provision of the Rajasthan Panchayati Raj Act cannot be made applicable. Land was no more pasture land in accordance with the provisions of JDA Act, as master plan has been prepared in accordance with provisions of the JDA Act.
In the return filed by respondent No.6-the Rajasthan State Haj Committee, it is contended that since large number of Haj Pilgrims go for pilgrimage to sacred places to Saudi Arabia, the allotment has been made in order to facilitate stay of the Haj Pilgrims and then they proceed to Makka Madina from Jaipur. The Haj Committee Act, 2002 has been enacted for making arrangements for the pilgrimage of Muslims for Haj and for the ancillary matters connected therewith. Persons from all religions give warm farewell to the Haj Pilgrims. They also extend welcome on the successful return from the journey to the sacred places. The use of the land has not been changed. Allotment is made as per Rule 18 of the Rules of 1974. Secularism does not mean negation of religion but it in fact recognizes and gives protection to all religions equally. Construction of Haj House indicates the spirit of religious tolerance, which is the basic structure of the Constitution of India as enshrined in its Preamble and Part-III. Allotment of land is to advance the religious brotherhood and the tolerance to provide facilitates to the pilgrims. Land has not been allotted for commercial purposes but it has been allotted to the statutory committee for providing facilitates to the pilgrims. Haj Houses are already existing in Andhra Pradesh, Gujarat, Jammu & Kashmir, Maharashtra, Uttar Pradesh and West Bengal.
Additional affidavit has been filed by the petitioner pointing out duties of the Committee under the Haj Committee Act, 2002. The chart of State-wise distribution of quota for the pilgrims of Haj is also submitted. In Rajasthan, 3396 pilgrims are permitted to travel as per quota of the year. The land situated in Karbala was sufficient for Haj House as it is likely to be utilized only for 2-3 months in a year. Purpose is to establish commercial house also for the rest of the period. It is reserved for the particular community. The Haj Committee is neither public nor charitable institution; it is statutory body. Being secular, the State Government is to be governed by the rationale, the allotment of land to Haj Committee is illogical. The State Government could not have allotted the land being secular State.
Mr. G.K. Garg, learned Senior Counsel with Mr. Laxmi Kant appearing on behalf of petitioner has submitted that action of allotment of land to Haj Committee is illegal and unconstitutional. The State Government could not have allotted the land for the religious activities. The act of allotment is unconstitutional and violative of the provisions of JDA Act and the Rules of 1974. The land was pasture land same could not have been allotted for the purpose of construction of Haj House. In view of the provisions contained in the Rajasthan Panchayati Raj Act and the Rules framed thereunder, no concession can be allowed while making allotment of land. Rule 18 of the Rules of 1974 has been violated while making the allotment on token amount of Rs.1/- for 99 years; it amounts to sale of the land. Once the land was allotted at Karbala, there could not have been any allotment in favour of the Haj Committee for the same purpose. Learned Senior Counsel appearing on behalf of petitioner has relied upon the decision of the Apex Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh & Ors. [(2011) 5 SCC 29].
Mr. Dinesh Yadav, AAG appearing on behalf of respondent-State, Mr. Rinesh Gupta appearing on behalf of JDA and Mr. R.N. Mathur, learned Senior Counsel with Mr. Ankul Gupta appearing on behalf of respondent No.6 Rajasthan State Haj Committee have submitted that the action is in accordance with law and concept of secularism is not violated; it cannot be said that the allotment has been made in an illegal manner, the same is permissible under Rule 18 of the Rules of 1974; they have relied upon the decisions of the Apex Court in Prafull Goradia vs. Union of India [(2011) 2 SCC 568], Ms. Aruna Roy & Ors vs. Union of India & Ors. [(2002) 7 SCC 368] and Delhi Administration vs. Umrao Singh [(2012) 1 SCC 194].
The first question for consideration is whether the allotment so made destroys the concept of secularism as enshrined by the Constitution of India.
The Apex Court has considered the concept of secularism in Ms. Aruna Roy (supra) wherein the Apex Court has observed that in a society where there is constant evaporation of social and moral values for getting property, power or post, it is advisable to have a solid social foundation from the base level so that a grown-up person would fight against all kinds of fanaticism, ill will, violence, dishonesty, corruption and exploitation. It has been further laid down that for controlling the wild animal instinct in human beings and for having a civilized cultured society, it appears that religions have come into existence. Religion is the foundation for value-based survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values. The philosophy of coexistence and how to coexist is thought over by the saints all over the world which is revealed by various philosophers. How to coexist, not only with human beings but all living beings on the earth, may be animals, vegetation and the environment including air and water, is thought over and discussed by saints and leaders all over the world which is reflected in religions. If that is taught, it cannot be objected to as it is neither violative of constitutional or legal rights nor does it offend moral values. The argument to the contrary was held to be totally wrong presumption and contention that knowledge of different religions would bring disharmony in the society was also rejected. On the contrary, knowledge of various religious philosophies is material for bringing communal harmony as ignorance breeds hatred because of wrong notions, assumption, preaching and propaganda by misguided interested persons. The Apex Court has further observed that the word religion should not be misunderstood nor the contention could be raised that as it is used in the National Policy of Education, secularism would be at peril. On the contrary, let there be a secularist democracy where even a very weak man hopes to prevail over a very strong man on the strength of rule of law by proper understanding of duties towards the society.
In our considered opinion, Haj is performed in order to bring about the tolerance and to strengthen the moral values, social values and is for providing for solid social foundation for existence of human beings. There is pious purpose of all the religious activities, no religion breeds hatred. It is in order to bring harmony, to understand basic human values, to understand, who am I and all are equals that pilgrimages are undertaken by the various sections of people such as Hindus, Muslims, Jains etc. Secularism is the basic structure of the Constitution that has to be given policy meaning that is developing understanding and respect towards different religions. The essence of secularism is non-discrimination of people by the State on the basis of religious differences.
In The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282], the Apex Court has considered the concept of religion. Article 25 has been considered by their Lordships of the Apex Court. It has been observed that Article 25 secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. The Apex Court has also observed that it is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which Clause (b) of the Article 26 applies. The Apex Court has further observed that religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression practice of religion.
In Prafull Goradia (supra) the Apex Court has considered constitutionality of the Haj Committee Act, 1959 which was replaced by the Haj Committee Act, 2002. The main ground of challenge was that the Act violates Articles 14, 15 and 27 of the Constitution of India. It was alleged that part of the proceeds of the direct and indirect taxes was used for providing subsidy for the purpose of Haj pilgrimage is only done by Muslims. For the Haj, the subsidy was granted to the pilgrims in the airfare. While dismissing the writ petition, the Apex Court has held that there is no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. As per the counter affidavit, Government was averse to the idea of granting support to a pilgrimage conducted by any community as for example when the Government incurs some expenditure for the Kumbh or for facilitating Indian citizens going on pilgrimage to Mansarovar, or visit temples and gurdwaras in Pakistan. Thus, there is no discrimination. It is not prudent or pragmatic for the court to insist on absolute equality when there are diverse situations and contingencies. Reliance was also placed upon the decision in Transport & Dock Workers Union vs. Mumbai Port Trust [(2011) 2 SCC 575]. It was also laid down by the Apex Court that Constitution is not to be interpreted in a narrow or pedantic manner. This is because a Constitution is a constituent or organic statute. While a statute must ordinarily be construed as on the day it was enacted, a Constitution cannot be construed in that manner, for it is intended to endure for ages to come. A balanced view has to be taken here and it cannot be said that even if one paisa of government money is spent for a particular religion there will be violation of Article 27. It is not desirable to be too rigid in these matters and free play must be given to the joints of the State machinery. The Apex Court has further laid down that it is due to the wisdom of our Founding Fathers that the Constitution of India is secular and caters to the tremendous diversity. In this sub-continent, with all its tremendous diversity the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc. The Apex Court has laid down thus:
10. In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated.
11. As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the Central Government, the State Government incurs some expenditure for the Kumbh Mela, the Central Government incurs expenditure for facilitating Indian citizens to go on pilgrimage to Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is mentioned that some State Governments provide facilities to Hindu and Sikh pilgrims to visit Temples and Gurudwaras in Pakistan. These are very small expenditures in proportion to the entire tax collected. Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community.
12. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27.
13. As observed by Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in Bain Peanut Co. vs. Pinson, at L Ed p. 491 : U.S. 499, 501 (1931) The interpretation of constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints (see also Missourie, Kansas and Tennessee Railroad vs. May, 194 U.S. 267 (1904).
14. Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination.
It is apparent that the Haj Committee Act, 2002 has been enacted for making arrangements for the Haj pilgrims and for ancillary matters connected therewith. Pilgrim has been defined in Section 2(f) to mean a Muslim proceeding to, or returning from, Haj. State Committee has been defined in Section 2(h) to mean a State Haj Committee constituted under section 18 and includes Joint State Committee. Constitution and incorporation of Haj Committee of India has also been provided in the Act. Section 17(1) provides constitution of State Haj Committee. As per Section 17(2) of the Haj Committee Act, 2002, the State Committee shall be a body corporate, by the name aforesaid, having perpetual secession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, to create a charitable trust or endowment, and to contract and shall by the said name sue and be sued. Composition of State Haj Committee is provided in Section 18; the same consists of sixteen members to be nominated by the State Government; three Muslim Member of Parliament, State Legislative Assembly, Legislative Council etc. are also Members. Disqualifications have also been provided in the Act of 2002. Duties of State Haj Committee are prescribed in Section 27, same provides that it shall be the duty of a State Committee to implement the policy and directions of the Committee in the interests of Haj pilgrims. The State Committee shall provide assistance to the Haj pilgrims including in the matter of their transport between their home States and the point of exit from India and their transit accommodation at points of exist. The State Committee shall discharge such other duties in connection with Haj as may be prescribed by the State Government concerned, in consultation with the Central Government. Section 27 of the Haj Committee Act, 2002 is quoted below:
27. (1) It shall be the duty of a State Committee to implement the policy and directions of the Committee in the interests of Haj Pilgrims.
(2) The State Committee shall provide assistance to the Haj pilgrims including in the matter of their transport between their home States and the point of exit from India and their transit accommodation at points of exist.
(3) The State Committee shall discharge such other duties in connection with Haj as may be prescribed by the State Government concerned, in consultation with the Central Government.
The Central Haj Fund and State Haj Fund are also defined under Section 30 and 32 of the Act of 2002 respectively. Section 32 provides that the State Haj Committee shall have its own fund and sums shall be placed to the credit thereof and all sums of money paid to it or any grant made by the Committee for the purposes of this Act; any grant or loan that may be made to the State Committee by the State Government or any other source for the purposes of this Act, as approved by the State Government; any amount that may be legally due to the State Committee from any source; and the moneys, if any, standing to the credit of a State Haj Committee, at the commencement of the Act. The State Haj Committee can apply its fund as provided under Section 33 of the Act of 2002 subject to any rules that may be made under this Act to make the payment of pay and allowances of the employees of the State Committee other than its Executive Officer whose pay and allowances shall be borne by the State Government; payment of charges and expenses incidental to the due performance of its duties by the State Committee for the objects specified in section 27; and other expenses approved by the State Government which are required to be met by the State Committee.
Thus, it is apparent from Section 27 of the Act of 2002 that it is duty of the State Haj Committee to implement the policy decisions of the Committee in the interest of Haj Pilgrims and to provide transport between their home States and the point of exit from India as well as transit accommodation at the point of exit. Haj Houses provides transit accommodation at the time of exit. Such transit accommodation in fact is a basic human requirement, which is not connected with any religious activity at all. When pilgrims are assembling at one place, they do have right to get shelter, same is implicit under Article 21 that the need is not of religious one, but of human one. The need is basic human necessity to give meaning to the life itself. Human life is not synonymous with animal existence. Pilgrims cannot be denied right to shelter under the concept of secularism. While providing shelter places to the pilgrims, there cannot be any division of communities of Human like Hindu, Muslim, Buddh, Jain or Sikh etc., it cannot be said that concept of secularism has been defeated by providing shelter places in the form of Haj Houses or by providing Mandapam and other facilities in Kumbh Mela such as construction of shelter places, roads nearby the temples etc. What is being provided in such cases is not basically for promoting the religion, but to provide the basic amenities which are necessary for respectable human life. Right to life includes frugal comforts also. In case it is held that grant of land for the purpose of providing transit houses is violative of concept of secularism under Article 14 & 15 or other provisions of the Constitution of India, it would defeat the very objective of right to life enshrined under Article 21 of the Constitution of India. It is constitutional right to obtain shelter and the safe places for assembling at a particular place and State has obligation to provide not only land, but other basic facilities also. When large number of people assemble at a particular place, it is open to the State Government to make proper arrangements to provide shelter places and also to make arrangements for maintenance of law and order and even sanction the amount from exchequer for such purpose without fear of violation of the concept of secularism.
Article 21 of the Constitution protects right to live with human dignity. In Kharak Singh Vs. State of U.P. & Ors., AIR 1963 SC 1295, the Apex Court laid down that human life is not animal existence. Right to livelihood is within ambit of Article 21 of the Constitution of India has been recognized in Olga Tellis Vs. Bombay Municipal Corporation, (1985) 3 SCC 545. Right to shelter is included in Article 21 has been held in Shiv Sagar Tiwari Vs. Union of India, (1997) 1 SCC 444. Right to shelter is a fundamental right which springs from right to life under Article 21 as held in U.P. Avas Evam Vikas Parishad Vs. Friends Coop. Housing Society Ltd., 1995 Supp.(3) SCC 456. Right to life would take in its sweep the right to food, right to clothing, right to decent environment and a reasonable accommodation to live in. It is necessary for physical, mental & intellectual growth has been laid down in Shantistar Builders Vs. Narayan Khimalal Totame, (1990) 1 SCC 520. The Apex Court in B.L. Wadehra Vs. Union of India, (2004) 10 SCC 106 has laid down that it is Government's obligation under Article 21 to provide shelter. In Mrs.Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 right to travel abroad has been held to be part of personal liberty. Law has to be reasonable in this regard. Such rights cannot be dealt with in arbitrary, unfair, oppressive or unreasonable manner.
In P.G.Gupta Vs. State of Gujarat & Ors., (1995) Supp. 2 SCC 182 considering Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, food, clothing & shelter have been held part of Article 21. The Apex Court has laid down thus:-
8. Article 11(1) of the International Covenant on Economic, Social and Cultural Rights laid down that the States' parties to the Covenant recognise the "right to everyone to an adequate standard of living for himself and for his family including food, clothing and housing and to the continuous improvement of living conditions". The State parties will take appropriate steps to ensure the realisation of these rights. Recognising these obligations of the State and to give effect to the essential importance of International cooperation, the directions contained in Articles38,39and46, the Housing Scheme for allotment to lower income group of the people was made. Possession of real property is the basis for and the symbol of wealth and influence in society. To the poor, settlement with a fixed abode and right to residence guaranteed by Article19(1)(e)remain more a teasing illusion unless the State provides them the means to have food, clothing and shelter so as to make their life meaningful and worth-living with dignity.
The Apex Court in J.P. Ravidas Vs. Navyuvak Harijan Utthapan Multi Unit Industrial Cooperative Society Ltd., (1996) 9 SCC 300 has recognized the State's obligation to provide residence for economic empowerment of Dalits within the ken of Article 21 of the Constitution of India. Right to night shelter to homeless has been recognized in various orders passed by the Apex Court in People's Union for Civil Liberties Vs. Union of India & Ors., (2010) 5 SCC 423; (2010) 12 SCC 176, (2010) 13 SCC 45 and (2010) 13 SCC 63.
In Peerless General Finance and Investment Co. Limited and Anr. Vs.Reserve Bank of India, (1992) 2 SCC 343 in the context of right to housing, quoting Mahatma Gandhi, the Apex Court observed that :-
55.The solidarity of political freedom hinges upon socio-economic democracy. The right to development is one of the most important facets of basic human rights. The right to self interest is inherent in right to life. Mahatma Gandhiji, the Father of the Nation, said that "Every human being has a right to live and therefore to find the wherewithal to feed himself, and where necessary, to clothe and house himself. Article 25 of the Universal Declaration of Human Rights provides that "everyone has a right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care." Right to life includes the right to live with basic human dignity with necessities of life such as nutrition, clothing, food, shelter over the head, facilities for cultural and socio-economic well being of every individual. Article 21 protects right to life. It guarantees and derives therefrom the minimum of the needs of existence including better tomorrow.
In Unni Krishnan, J.P. and others etc. etc. Vs. State of Andhra Pradesh and others etc. etc. (1993) 1 SCC 645, the Apex Court held that Article 21 which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of Article 45 wherein the State is obligated to provide education upto 14 years of age. The Apex Court referred to Satwant Singh Sawhney Vs. D.Ramarathnam, (1967) 3 SCR 525, in which right to go abroad was recognized; Article 21 covers unenumerated rights such as right to privacy as laid down in Gobind Vs. State of M.P. & Anr., (1975) 2 SCC 148; the right against solitary confinement in jail Sunil Batra Vs.Delhi Administration and Ors. etc., (1978) 4 SCC 494, 545; the right against bar fetters Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi, (1978) 4 SCC 104; the right to legal aid Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, (1978) 3 SCC 544; the right against hand cuffing Prem Shankar Shukla Vs. Delhi Administration, (1980) 3 SCC 526. The right to speedy trial Hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 81. Docters assistance etc., have been recognized as part of Article 21 of the Constitution of India.
In our considered opinion, the concept of secularism has not been defeated by providing shelter places in the form of Haj Houses and it could not be urged successfully that religious activities are being propagated by the State Government. As a matter of fact, it is basic human need, which is fulfilled by making allotment of land for providing transit houses to travel abroad; it is open to the State Government or the JDA to make the allotment of land for such purposes on the token amount or even without realizing any amount. Secularism does not mean negation of religion but it in fact recognizes and gives protection to all religions equally; basic human needs are supreme and cannot deprived of even during pilgrimages.
It is submitted that the State Government could not have allotted the land in view of Rule 18 of Rules of 1974. Rule 18 of the Rules of 1974 deals with the allotment of land to the public and Charitable Institutions. It is provided under Rule 18(1) that no land shall be allotted for a price less than the sanctioned reserve price except for categories covered under Rule 17. Provided that land for public and charitable institutions may be allotted by the Trust on payment of residential reserve price or with the prior permission of the State Government free of any charge or at concessional rates. Rule 18(1) and (2) is quoted below:
18. Allotment of land to public & charitable institutions- (1) No land shall be allotted for a price less than the sanctioned reserve price except for categories covered under Rule 17. Provided [that land for public and charitable institutions may be allotted by the Trust on payment of residential reserve price.] [or with the prior permission of the State Government free of any charge or at concessional rates.] (2) If any land is required by the Government from the Trust the following price shall be paid by Government:-
(a) Cost of land, if the land was acquired by the Trust by making compensation and cost of development of plot +20% to cover administrative and other establishment charges to the Trust.
(b) In case of Nazool land, the Government shall pay only the cost of development plus 20% to cover the establishment and administrative charges to the Trust.
(c) If the land required by the Government was already developed before it was transferred to Trust, no development charges shall be payable but if any additional development has been undertaken by the Trust that development charge plus 20% thereof shall be paid by Government to the Trust:
[Provided that the State Government may exempt any Department o the State Government from payment of cost of land and other charges under clause (a) to (c).]
(d) Above-mentioned principle shall also apply in case of land belonging to the Trust if allotted to Universities or other statutory or non statutory bodies under Government orders.
Rule 18(2)(c) provides that the State Government may exempt any Department of the State Government from payment of cost of land and other charges under clause (a) to (c). Rule 18(2)(d) provides that the aforesaid principle shall also apply in case of land belonging to the Trust if allotted to Universities or other statutory or non statutory bodies under Government orders. Erstwhile Urban Improvement Trust has been taken over by the JDA. It is permissible to make the allotment of land to the statutory body, without realizing the cost of the land. The Haj Committee is a statutory body formed under Section 17 of the Haj Committee Act, 2002 and the Haj Committee Rules, 2002 framed by the Central Government under Section 44 of the Act of 2002. The State Government also framed the Rajasthan State Haj Committee Rules, 2006 under Section 47 of the Act of 2002. The term institution has been defined in Rule 2(6-G) of the Rules of 1974 to mean an establishment, organization or association, formed for the promotion of object especially one of the public or general utility religious, charitable, educational or like nature, etc. The statutory committee like Haj Committee as has been constituted is not ousted from the purview of the definition of institution. Thus, allotment could have been made to the statutory committee within ken of Rule 18 of the Rules of 1974. It was not necessary to realize the market value of the land. The submission to the contrary raised on behalf of the petitioner is hereby discarded being untenable.
The next submission that pasture land could not have been allotted for construction of Haj House to the Rajasthan State Haj Committee is untenable for various reasons. Firstly, the land is within Municipal limits and has been handed over to JDA. Once the land was allotted to the JDA and master plan had been prepared under provisions of the JDA Act, 1982, in master plan land was reserved for institutional purpose, it cannot be said to be pasture land. Another reason for rejecting the submission is that there is no necessity to keep the pasture land within Municipal limits as all dairies have been shifted outside Municipal limits and once the land has been shown in master plan for institutional purposes, the same could have been allotted for construction of the Haj Houses to Statutory Committee constituted under the Haj Committee Act, 2002. Validity of the master plan so prepared by JDA has not been questioned in the petition. Thus, submission raised is untenable and is hereby rejected.
The last submission that once land was allotted at Karbala, it could not have been allotted near Airport, cannot be accepted. The land allotted at Karbala was far away and inadequate considering the extent of land required for large number of persons including pilgrims and persons who assemble to see off and receive them. In our opinion, the land in question was rightly allotted to the Haj Committee.
In view of above, we find no merit in this petition. The same is hereby dismissed. Let held up construction of Haj House be completed forthwith. No costs.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),C.J. Mohit S/1
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Mohit Tak, Jr. P.A.