IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4909 of 1997 with SPECIAL CIVIL APPLICATION No 4861 of 1997 with Special Civil Application No.4938 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HAREN PANDYA Versus GANDHINAGAR CHARITABLE TRUST -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4909 of 1997 MR YN OZA for Petitioners MR PARESH M DAVE for Respondent No. 1 Mr.S.N. Shelat, Additional Advocate General, with Mr.D.P. Joshi, Assistant GOVERNMENT PLEADER, for Respondent No. 2 to 5. MR RS SANJANWALA for Respondent No. 8 NOTICE SERVED for Respondent No. 9,15 NOTICE UNSERVED for Respondent No. 12 2. Special Civil Application No 4861 of 1997 MR VIJAY H PATEL for Petitioners Mr.S.N. Shelat, Additional Advocate General, with Mr.A.D. Oza, GOVERNMENT PLEADER, for Respondent. NOTICE SERVED for Respondent No. 9,15 NOTICE UNSERVED for Respondent No. 12 3. Special Civil Application No.4938 of 1999 Mr.R.S. Sanjanwala, with Mr.Shirish Sanjanwala. Mr.S.N. Shelat, Additional Advocate General, with Mr.A.D. Oza, GOVERNMENT PLEADER, for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE P.B.MAJMUDAR Date of decision: 21/09/2000 C.A.V. JUDGEMENT: (Per P.B. Majmudar, J.) 1. Since there is a common point involved in all these three petitions, at the request of the parties, they are ordered to be heard together. The question involved is regarding giving charity of the lands at Gandhinagar practically at throwaway price. So far as Special Civil Application No.4909 of 1997 is concerned, same has been filed by one Haren Pandya and another, who, at the relevant time when the petition was filed, were M.L.As. of Bharatiya Janata Party (hereinafter referred as "B.J.P."). We may state that Mr.Haren Pandya has subsequently become a Minister in the State of Gujarat. 2. In the said Special Civil Application, they have challenged the Resolution of the Government, in its Roads and Building Department, by which it was resolved to allot 41000 sq. metres of land situated in Sector 8 of Gandhinagar to the Gandhinagar Charitable Trust, Gandhinagar, for the purpose of Balmandir, Primary School, Arts, Commerce, Science, Engineering, Business Management, Computer Science Colleges, hostel for boys and girls. The said Resolution was passed treating the said Gandhinagar Charitable Trust as "Educationally Special Institute" and as a "Special Case". By treating it as a special case and a special institute, relaxations were also given in the existing policies of the Government in allotment of land without auction and at half of the prevalent rate of Rs.400/- per sq. metre, i.e. at the rate of Rs.200/- per sq. metre. It was also resolved to make allotment of the land for playground on lease at the token rent of Rs.1/- per annum. There were certain conditions attached with the said Resolution such as making part payment etc. Subsequently, by Annexure `B' the Trust was asked to pay Rs.82,00,000/- by way of sale consideration for the land admeasuring 41000 sq. metres. The said amount was to be deposited before the Collector, Gandhinagar. Instalments were also given for making such payment, by which the Trust was required to deposit 50% of the said amount of Rs.82,00,000/-, i.e. Rs.41,00,000/- towards first instalment, latest by 28.7.1997. On deposit of the same, the Collector, Gandhinagar was to hand over the possession of the land to the Gandhinagar Charitable Trust. The remaining amount of Rs.41,00,000/- was to be deposited by the Trust by 28.9.1997. The aforesaid relaxation was given as per Resolution Annexure `B' to the petition, passed by the Deputy Secretary, Road and Building Department, after taking consent from the Finance Department. The petitioner of Special Civil Application No.4909 of 1997 has also annexed a newspaper report, under the heading "Landing a Scandal". The petitioner of Special Civil Application No.4909 of 1997, on the basis of the aforesaid document, preferred the said Special Civil Application, challenging the aforesaid action of the Government in allotting land to the said Gandhinagar Charitable Trust, which is respondent No.1 in the petition. It is stated in the petition that the aforesaid Trust is headed by the then Chief Minister Shankersinh Vaghela and that as per the information of the petitioner, even though 73 applications were pending by various educational institutions and even though they are pending since number of years, ignoring the claim of such applicants, the Government has decided to favour respondent No.1-Trust. It is stated in the petition that undue favour is shown to the Gandhinagar Charitable Trust. It is demonstrated in the petition as to how the decisions one after another were taken in quick succession. It is also further averred in the petition that while taking such a decision and before passing the impugned Resolution dated April 29, 1997 no approval has been sought from the competent authority of the area and other authorities under the revenue laws, Town Planning Act, etc. It is also stated in the application that even otherwise, the respondent No.1-Trust does not have any experience of whatsoever nature regarding computer etc., and that the impugned Resolution was contrary to earlier Resolution of the Government dated June 29, 1988, wherein certain norms are prescribed for allotting land by the Government. It is the say of the petitioner that the impugned Resolution is mala fide and it is passed only with a view to favour the Trust, wherein the sitting Chief Minister was one of the Trustees and it is a case of misusing a Government machinery. By way of amendment it was also pointed out that the respondent No.1-Trust was, at the relevant time a very recently registered Trust as the same was registered only on 8.8.1996. In the list of Trustees, name of Shri Shankersinh Laxmansinh Vaghela, who was the Chief Minister at the relevant time, was shown at serial No.1 in the amendment along with four other Trustees. It is pointed out that none of the Trustees are having any experience in the field of imparting education. Along with the amendment, the petitioners have also placed Resolution dated 29.6.1988, wherein certain guidelines have been prescribed in the matter of allotting land. This Court, by its order dated 9th July, 1997, granted leave to amend the petition and notice was made returnable on 28th July, 1997 on the basis of the statement made by the learned Advocate for the petitioners that the entire amount of Rs.82,00,000/is paid two/three days back. The Court also granted interim relief to maintain status quo as to possession upto 31st July, 1997. 3. Thereafter, by another order dated 6.8.1997, this Court granted permission to add all the Trustees as parties. The petition was admitted and rule was made returnable on 15.9.1997. Interim relief was also granted at that time to maintain status quo as to possession as well as construction. The Court clarified that it will be open to the Trustees to move paper work and process applications for permission, etc. 4. In the aforesaid Special Civil Application, affidavit-in-reply was filed by one V.K. Mehta, who was holding the office of Deputy Secretary in Roads and Building Department of the State of Gujarat at the relevant time. The said affidavit-in-reply was filed on behalf of respondents, 2, 3, 6 and 7. It was pointed out in the reply on behalf of the State Government that the Government has evolved a policy for the purpose of allocating lands at Gandhinagar for educational, social, religious and other allied purposes at concessional rates without holding auction. A resolution to that effect was passed on 29.6.1988. It was, therefore, stated that it was permissible on the part of the Government to allot land at Gandhinagar to the respondent No.1-Institution without holding auction. It is also stated in the reply that application dated 15.11.1996 was moved by the respondent No.1-Trust seeking allotment of land for educational purpose in Sector No.8 of Gandhinagar and, thereafter, they also submitted necessary details and that the entire matter, along with the report of the Chief Town Planner, was placed before the Council of Ministers for the purpose of decision and that the Council of Ministers arrived at a conclusion in its meeting dated 12.3.1997 and 9.4.1997 and it was decided to allot in all 51000 sq. metres of land to the respondent No.1-Trust, on the basis of which subsequently, resolutions were passed, fixing the price for the land in question and allotting the same to the Trust. It is also pointed out in the reply that in addition to the respondent No.1-Trust, several other institutions were also granted such land at concessional rates at Gandhinagar. It was also pointed out that even in the past also, such allotments were made in favour of educational institutions without holding auction. Some of the particulars were also given in the reply to that effect. It was also stated that the decision to allot the land to respondent No.1-Trust has been arrived at by the Council of Ministers after taking into consideration all the relevant facts and circumstances of the case and that, therefore, there is no question of showing any favour to the respondent No.1-Trust. Therefore, on the basis of relying upon the Resolution of 1988 as well as the decision of the Council of Ministers to allot the land to the respondent No.1-Trust, ultimately, the impugned Resolution at Annexure `A' was passed. It was, therefore, prayed that the petition deserves to be dismissed. 5. Respondent No.8, Shankersinh Laxmansinh Vaghela, who was the Chief Minister at the relevant time, has also filed his affidavit-in-reply. It was stated by him in his reply that the allegations against him are baseless. He pointed out that he has not exerted any influence for grant of land to the Trust, though, incidentally, he is one of the Trustees of the said Trust. He pointed out that he had not remained present in the meetings of the Cabinet on 12.3.1997 and 9.4.1997. He also pointed out in his reply that the Trust had demanded 80000 sq. metres of land, while the Cabinet decision was only to award 41000 sq. metres of land and 10000 sq. metres towards playground. He pointed out that this very fact itself shows that he has not exerted any influence and that, in fact, he has not exerted any influence over any of his Cabinet colleagues or the concerned Ministers or the Officers of the State. He also pointed out in his reply that he became Chief Minister only on 23rd October, 1996, while the respondent No.1-Trust was registered before that date. It was also pointed out that the Trust was registered on 8th August, 1996 and that the Resolution for allotting the land in question was passed by the Trust on 20th October, 1996 and that the application for grant of the land was made on 15.11.1996. It was pointed out that the respondent No.1-Trust has taken over the Management of the Arts and Commerce College at Gandhinagar from one Samarpan Seva Trust. He accordingly denied the allegations which were levelled against him. 6. On behalf of the respondent No.1-Trust also, affidavit-in-reply was filed, which is at page 113 of the compilation. It was pointed out in their reply in paragraph 5 that this public interest litigation at the instance of the petitioners is not maintainable as they are M.L.As. belonging to the B.J.P. and since B.J.P. is out of Government and respondent No.8 has become the Chief Minister, this petition is filed only with a view to tarnishing the image of the respondents by way of mud throwing, since the petitioners have not accepted the fact that they have gone out of power. It was also pointed out by the Trust in the reply that even during the regime of the B.J.P. Government, such allotments of lands have been made at the same rate. Instances of such allotment have also been given at page 116 of the reply. It was pointed out by the Trust that the decision of the Government was just and proper and that all allegations made in the petition are baseless. 7. It is required to be noted that during the pendency of the present petition, there was a change in the Government and the B.J.P. Government came into power and the petitioner No.1 of Special Civil Application No.4909 of 1997 became Minister in the new Government. The new Government took a policy decision to review decisions, which were taken by the earlier Government and for that purpose, Sub-committee of Cabinet was formed. The Sub-committee appointed by the Government consisted of various Ministers, such as Messrs. Suresh Mehta, Vajubhai Wala, Ashok Bhatt, Jaynarayan Vyas and Haren Pandya. The said Committee was to examine various decisions which were taken by the earlier Government. So far as the allotment of land to the respondent No.1-Trust is concerned, the said decision was also subject matter of review of the said Committee. It was opined by the Sub Committee, in its report, that when the application for grant was made by the Trust, the said Trust was not having any recognized Arts and Commerce College in Gandhinagar as the said college was run by another Trust. The Committee also observed that certain false informations were given by the Trust for the purpose of getting the allotment of land in their favour. It was also stated in the report that even though there were other 73 claimants for the purpose of getting land for educational institution, without considering their priority, favouritism was shown to the respondent No.1 and that was possible only because one of the Trustees Shri Shankersinh Vaghela was the Chief Minister. It is also pointed out in the report that in the Cabinet meeting of 9th April, 1997, Shri Shankersinh Vaghela as the Chief Minister presided over the said meeting and in that meeting, it was decided to allot the land. The Committee also found that there were some erasures in some documents which is doubtful in nature. It is stated that letter dated 12.3.1997 is a subsequently got up letter. It was found that Shri Shankersinh Vaghela has misused his office and had committed a fraud for getting financial benefits. It was found that the said action of said Shankersinh Vaghela is fraudulent and is criminal in nature. It was recommended that criminal proceedings should be taken against said Shankersinh Vaghela and others. 8. On the basis of the aforesaid report of the Sub-committee of the Cabinet, the Roads and Building Department of the State of Gujarat passed an order dated 7.7.1999, by which the grant given in favour of the aforesaid Gandhinagar Charitable Trust was cancelled, and the Collector, Gandhinagar was asked to pay back the amount of Rs.82,00,000/- paid by the said Trust without interest. The Trust was asked to hand over the possession to the Government. The said order was passed with the concurrence of the Finance Department. 9. Being aggrieved by the said decision, Gandhinagar Charitable Trust has filed Special Civil Application No. 4938 of 1999. The said petition initially came up for admission before a learned single Judge. The learned single Judge, by his order dated 12.7.1999, directed that the said petition, being Special Civil Application No.4938 of 1999, may be placed before the First Court as the said petition appears to be continuation of the dispute raised in Special Civil Application No.4909 of 1997. Thereafter, a Division Bench issued notice in the present petition, i.e. Special Civil Application No.4938 of 1999, and in view of the interim order passed in earlier petition, i.e. Special Civil Application No.4909 of 1997, the interim relief was granted to the effect that the respondents are restrained from taking possession of the property pursuant to the impugned order. The interim relief is continued from time to time and the matter was adjourned from time to time. 10. In Special Civil Application No.4938 of 1999, affidavit-in-reply has been filed by Shri Haren Pandya, who is the petitioner of earlier Special Civil Application, i.e. Special Civil Application No.4909 of 1997, and who has now become Minister of State for Home. He has filed an affidavit-in-reply setting forth various grounds. Affidavit-in-reply has also been filed by the State of Gujarat and has tried to justify the action of the State Government as per the averments made in the said reply. 11. In the meanwhile, Special Civil Application No.4861 of 1997 has been filed by one Shradha Kelavani Mandal, wherein the said Trust has prayed to allot land to the petitioner-Trust to establish school building for its running school. In that petition, reference to allotment of land to Gandhinagar Charitable Trust has been made. It is pointed out in this petition by the Trust that there is a discrimination and if said Gandhinagar Trust was given such a big piece of land, there is no reason not to give similar treatment to the petitioner of Special Civil Application No.4861 of 1997. A learned single Judge ordered that the aforesaid Special Civil Application No.4861 of 1997 is required to be placed with Special Civil Application No.4909 of 1997 and accordingly, the same was also referred to the Division Bench. 12. Under the aforesaid background, aforesaid three Special Civil Applications have come before us and we are disposing of all these three Special Civil Applications finally after considering at great length the arguments advanced by all the concerned Advocates. By this common judgment, accordingly we are disposing of all the aforesaid three Special Civil Applications. 13. So far as Special Civil Application No.4909 of 1997 is concerned, during the pendency of the Special Civil Application, since the grant made in favour of Gandhinagar Charitable Trust is already cancelled, and since that cancellation is subject matter of Special Civil Application No.4938 of 1999, we have heard arguments of Mr.Sanjanwala for the petitioner of the said petition, i.e. Special Civil Application No.4938 of 1999. Mr.Sanjanwala for the petitioner of Special Civil Application No.4938 of 1999 has argued that in view of the grant in favour of his client having been cancelled, the earlier P.I.L. filed by Mr.Haren Pandya and another has become infructuous. However, Mr.Y.N. Oza for the petitioners of Special Civil Application No.4909 of 1997 has submitted that since cancellation of grant is under challenge in Special Civil Application No.4938 of 1999, he would not like to withdraw the petition on the ground that it has become infructuous. Under these circumstances, we have heard Special Civil Application No.4938 of 1999 at great detail and arguments of both the sides have been heard at length. We are accordingly dealing with the points involved in Special Civil Application No.4938 of 1999 and the argument of both the sides in the aforesaid matter. 14. During the pendency of the petition, i.e. Special Civil Application No.4938 of 1999, draft amendment was submitted by the petitioner, by which permission was sought to add Deputy Secretary, Roads and Buildings Department, as party and the order dated 7th July, 1999, cancelling the grant, was subsequently placed on record as Annexure `F' and the said order was specifically challenged. It was also stated in the draft amendment that the order at Annexure `F' is passed against the principles of natural justice, because the petitioner was not given any show cause notice before passing the order, nor was he heard, no details about the report of the Sub-Committee are given to the petitioner and that, therefore, no document can be relied upon against the party without giving the party an opportunity of being heard. It is also averred in the amendment that the impugned order is not a speaking order and that Sanad having already been issued and since the petitioner is already in possession, the possession cannot be taken away from the petitioner without resorting to the civil court. The amendment was granted by the Court on 15.7.1999. 15. The Deputy Secretary, R&B Department of the State of Gujarat has filed affidavit-in-reply. He submitted that former Chief Minister Shri Shankersinh Vaghela executed a Trust Deed dated 2nd August, 1996, constituting the Gandhinagar Charitable Trust. The Trust was registered on 8th August, 1996. A meeting of the Trust was held on 20th October, 1996, which was presided over by Shri Shankersinh Vaghela. In that meeting, it was resolved that the Trust should prefer an application for allotment of land for the Trust. On 15th November, 1996, Shri Sumanbhai Patel, Honorary Secretary, Gandhinagar Charitable Trust, addressed a letter to the Secretary, Roads and Buildings Department, Sachivalaya, Gandhinagar, requesting the Government to allot the land to the Trust on the ground that the Trust was running an Arts & Commerce College at the Shopping Centre, Sector 8, Gandhinagar, and that there was open land available behind the shopping centre. Copies of the Resolution dated 20th October, 1996 and the letter dated 15th November, 1996 are annexed along with the affidavit-in-reply. It is also stated in the affidavit-in-reply that, subsequently, demand for some more land was also made on the ground that in addition to running of the Arts & Commerce College, the Trust was interested in setting up a Bal Bhavan, a Prathmik Shala and a Madhyamik Shala, and also wanted to provide for Technical and Management education. The letter of the Trust to that effect dated 17th December, 1996, was also annexed with the reply. One Shri C.J. Chavda, Special Officer in the Chief Minister's Secretariat, addressed a Note to the Secretary, Roads & Buildings Department, that there were directions to take proper steps for allotment of 20 acres of land to the Gandhinagar Charitable Trust. The Chief Town Planner reported to the Secretary, Roads & Buildings Department, by his communication dated 13th January, 1997, about the application of the petitioner-Trust and stated that the financial viability of the petitioner-trust also remains to be ascertained since crores of rupees would be required for construction. On 28th January, 1997, the Chief Town Planner, had further reported that the lands required by the Trust in Sector 8 were reserved for commercial purpose and that this commercial area could be reduced since there is meagre population in the nearby Sectors 1 and 9. It is further submitted that there is a Trust named Samarpan Sewa Trust, Vasan, which was running the Arts & Commerce College. It was granted affiliation by the Gujarat University with effect from June, 1996, for running an Arts & Commerce College at Gandhinagar. The Notification dated 24th June, 1996 was issued by the Gujarat University that Samarpan Sewa Trust, Vasan, is permitted to open a new Arts & Commerce College at Gandhinagar. It was submitted that the Education Department of the State of Gujarat also addressed a letter to the Registrar of the Gujarat University that no grant will be released in favour of Samarpan Sewa Trust for a period of seven years. It is further stated in the reply that from the record, it does appear that when the Resolution was passed by the Gandhinagar Charitable Trust and subsequently made application to the State Government for allotment of land, the Trust was not running any Arts & Commerce College at Gandhinagar, as indicated in their application. It is specifically stated in the affidavit-in-reply that there is nothing on the record to show that the petitioner-Trust was running an Arts & Commerce College at Gandhinagar. It is also stated in the reply in paragraph 2.6 that a Cabinet Meeting was held on 12th March, 1997, presided over by the then Minister for Industry, in which a proposal for grant of land for educational purpose in favour of the Gandhinagar Charitable Trust was approved, in principle, and a Sub-committee, consisting of the former Ministers Shri Atmarambhai