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SCA/24472/2007 1/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 24472 of 2007
With
CIVIL
APPLICATION No. 12665 of 2007
In
SPECIAL CIVIL APPLICATION No. 24472 of 2007
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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FARSUBHAI
MULJIBHAI GOKLANI - Petitioner(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
==================================================
Appearance :
MR
PERCY KAVINA SR ADVOCATE WITH MR MM TIRMIZI for Petitioner(s) : 1,
MR
PK JANI GOVERNMENT PLEADER for Respondent(s) : 1,
MR VIRAT G POPAT
for Respondent(s) : 5,
MR ANSHIN H DESAI for Respondent(s) : 6,
MR
KEDAR B BINIWALE for Respondent(s) : 7,
MR SB VAKIL SR ADVOCATE
WITH MS ARCHANA R ACHARYA for Respondent(s) :
8,
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 27/09/2010
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This
petition filed in the public interest questions the legality of the
funds distributed from the Prime Minister’s National Relief Fund
(hereinafter referred to as PMNR fund for short) for
construction of a building for school run by the trust of which the
respondent No.5 is the founder.
2. Facts
of the case of the petitioner are as follows:
2.1 Petitioner
claims to be a social worker doing such work in Radhanpur Taluka.
Respondent No.5 is a member of Legislative Assembly elected from the
said constituency. According to the petitioner said respondent No.5
has misused the grant received from the PMNR fund for the purpose of
construction of building of the school run by the trust of which he
himself is a President.
2.2 It
is the case of the petitioner that respondent No.5 is founder of a
trust called Shri Swami Vivekanandan Vikas Mandal (hereinafter
referred to as SSVVM for short) which is a trust registered
under the Bombay Public Trust Act. Petitioner has given details of
the members of the trust, which are not disputed by the respondents;
as follow:
Sr.No.
Name
Relationship
with respondent No.5
1.
Shankarbhai
Lagdhirbhai Chaudhry
Self
President
2.
Maheshbhai
Prahladbhai Mehta
3.
Dajabhai
Ratanbhai Patel
Brother-in-law
4.
Godha
Jehabhai
Nephew
5.
Hameerbhai
Rupabhai Patel
Nephew
6.
Bhavabhai
Karshanbhai Piliyatar
Brother-in-law
7.
Paramaben
S. Patel
Wife
2.3 Thus,
respondent No.5 is founder and President of the said trust and other
members are close relatives of the said respondent. In the year
2001, devastating earthquake caused extensive damage to a large
number of buildings in the region. Since the number of school
buildings also suffered such damage, the State Government in order to
ensure that education of the students does not suffer, decided to
assist reconstruction of fully or substantially damaged buildings by
giving grant from PMNR fund. Government
formulated a scheme in this regard under Resolutions dated 19.09.2001
and 26.09.2001. Government assistance was to be given on the
following conditions as contained in the resolution dated 19.09.2001.
Government
has also decided to assist grant-in-aid Secondary and Higher
Secondary School totally collapsed and heavily damaged (only G4
level) from PMNRF on following conditions:-
The school
/ trust applying for the assistance from PMNRF shall be a registered
body under the law.
The School
/ Trust shall not transfer the said land / buildings to any other
institution or person for 15 years from the date of completion of
such building.
2.3 In
subsequent resolution dated 26.09.2001, it was clarified as under.
The
grant-in-aid Secondary / Higher Secondary School in your District
included in the Prime Minister Relief Fund which are absolutely
destroyed in the earthquake or who have suffered heavy losses, such
schools satisfying the G-4 level conditions only then such schools
work can be taken on hand from the P.M.Fund. As stated in the
condition the District Education Officers shall obtain the assurance
letter on the requisite stamp paper for the schools desiring
construction.
2.4 The
claimant school had to make a declaration before the government in
terms of the said resolutions dated 19.09.2001 and 26.09.2001 in a
standard format which provided as under :
We do hereby
give assurance on oath that :
1. The building
of our school has been damaged on account of the earthquake which
occurred on 26.01.2001 and the primary information thereof has been
produced herewith and we are also ready to furnish the additional
information which has been called for from the different departments
as and when received.
2. We do hereby
agree that rules and regulations framed under Resolution
NO.BMS-112001-1170-G dated 19.09.2001 issued by the Gujarat State
Education Department for providing aid shall be binding to us.
3. There is no
dispute with regard to the building and ownership of the school as
well as its administration and there is no litigation pending in that
connection in any forum.
4. We also
do hereby agree to furnish any documentary proofs with regard to the
building of the school, ownership of its land and construction and
other relevant documents of the present building as and when demanded
from us within the stipulated time period and without any delay.
5. We also do
hereby give assurance that we shall strictly adhere to each and every
instructions and procedures indicated and laid down by the Government
in this connection.
6. If any of
the foregoing terms and conditions or those that may be implied by
the Government from time to time in this connection is violated or
any default in that regard is committed by us or any of the persons
from our side, we agree that the Government shall be entitled to
deduct the same from the grant which is allotted to us by the
government itself.
2.5 It
is, thus, case of the petitioner that as per the Government policy,
assistance for reconstruction of the building of grant-in-aid school
was to be given only in case of total destruction or substantial
damage to the school building and only if the trust running the
school had ownership of such land and building. It is, however, case
of the petitioner that SSVVM run a school in the name of Nalanda
Girl’s School but did not own the land or building and such school
was functioning on the land and building owned by the Sarvoday Arogya
Nidhi, Radhanpur (for short SAN ) given to SSVVM for its use
rent free. It is therefore the case of the petitioner that SSVVM was
not entitled to receive any grant from the PMNR fund for construction
of school building since the trust running the school neither owned
the land nor the building. According to the petitioner, SAN never
applied for assistance for reconstruction of the building. Petitioner
has referred to two letters dated 26.07.2007 and 10.09.2007 written
by the Secretary of SAN clarifying its position in this regard.
Reference to contents of these letters will be made later.
2.6 Despite
this position, it appears that SSVVM received substantial grant from
the PMNR fund for reconstruction of school building. As per the
petitioner, the trust received grant of Rs.60.95 lakhs from the PMNR
fund. Such grant was claimed and received by creating false documents
with active help and support of the respondents Nos.3 and 4 who are
government officials. It is, in fact, case of the petitioner that the
building where the school in question previously was functioning
never received any extensive damage to fall in G-4 category. Even the
claim of such damage was false.
2.7 By
receiving such funds, respondent No.5 constructed new building of the
trust at another place where also the trust did not own the land. It
is, thus, the case of the petitioner that respondent No.5 misused an
amount of Rs.60.95 lakhs from PMNR fund by creating false evidence.
2.8 The
petitioner has therefore prayed for direction to recover the amount
disbursed from PMNR fund, criminal action against respondents Nos.2
to 5 and additional departmental action against government officers.
3. Several
affidavits have been filed by State authorities as well as by the
other respondents. Primarily, the stand of the respondent No.5 is
that the petitioner is a political personality. Petition is filed
malafide to settle private scores. Necessary documents were presented
before the authority for sanctioning grant. Trust has never received
the grant and the amount is directly paid to the construction company
upon completion of the construction work. Amount released was
Rs.21.02 lakh and allegation of disbursement of Rs.60.95 lakhs is
highly exaggerated. Land on which the new building has now been
constructed has been gifted to the trust by one Dalsukhram B.
Thakkar. The SAN has given no objection to the fund being given to
the SSVVM trurst. On behalf of SAN, affidavit dated 06.04.2010 has
also been filed in which it is stated that SAN has no objection to
SSVVM receiving relief for damage suffered by the school building in
the earthquake.
3.1 Since
objection was raised on behalf of the respondent No.5 that trust is
not joined as party, the trust SSVVM was joined as additional
respondent No.8. Affidavit has also been filed by one Shri Dazabhai
Ratnabhai Patel, Secretary of the trust on 21.06.2010 stating inter
alia that the trust has disclosed to the authorities that the damaged
building in question belonged to SAN and the trust was managing the
school.
4. Official
respondents have tried to support the respondent No.5. In an
affidavit dated 18.07.2008 filed by one Shri A.S.Barot, Lecturer,
Class-II, it is stated as follows :
13. Therefore,
as per the proposal of the NBCC estimated cost of the reconstruction
of the school in question was Rs.24.36 lacs. The NBCC constructed
school building on the land owned by the Swami Vivekanand Trust,
Radhanpur by incurring actual expenditure of Rs.21.02 lacs which was
made available directly to the NBCC by the Prime Minister s Office.
Therefore, it is clear that the funds were made available actually
from the PMNRF to the NBCC which carried out the construction of the
school and neither State Government nor any officer of the State
Government has either received amount or has disbursed any amount to
the trustees or school management of respondent No.5. Even the funds
have not reached in any way to the school management of the
respondent No.5 in any way. The construction agency i.e. NBCC has
received the amount from the PMNRF. It is submitted that the project
proposal was submitted to the Prime Minister s office, after the
information collected from the District Education Officer and the
said project was considered by the Prime Minister s office.
Therefore, work of the State Government or its officer had come to
end on submitting the project report. The construction activities was
carried out by the construction agency appointed by the Prime
Minister s office and the State Government had no role to play in
the same.
14. In view of
the above, prayer sought in the petition that the State Government
should initiate action for recovery of money released from PMNRF is
absolutely misconceived and baseless and other prayers regarding the
action against officer are also misconceived and without any
application of mind.
4.1 On
16.02.2010, we called upon the said respondent No.3 to file affidavit
on certain specific aspects of the matter as under:
From the
affidavit filed by the 3rd respondent (S.C.A. No.24472/07)
it appears that building of Nalanda Girls High School, Radhanpur, was
damaged in earthquake and for the said reason a sum of Rs.20.83 lakhs
was granted to National Building Construction Corporation (NBCC) for
construction of the school building, which is run by a Trust of which
the 5th respondent is one of the trustees.
Counsel for
the petitioners submitted that all the trustees are relatives of the
5th respondent who are running the school and the said
Trust has no school building, but it was running in a rented
building.
In the
circumstances, we direct the 3rd and 5th
respondents to file additional affidavits and state whether Nalanda
Girls High School, Radhanpur, had its own building prior to
earthquake? If it was a tenant in some other building which was
damaged then why State Government will construct and provide a
separate building for the school, amounting to donating a new
building in favour of the school run by the 5th respondent
along with relatives.
Let the matter
be posted on 04.03.2010.
4.2 Pursuant
to the said order and the subsequent reminder on 04.03.2010, one Shri
C.V.Som, IAS, Commissioner of Schools and Mid-day Meals, Gandhinagar
filed affidavit dated 18.03.2010 stating inter alia that;
4. The
Government resolution dated 19th September 2001 of
Education Department, Government of Gujarat (attached with this
affidavit in Annexure-I) states that after consultation with the
Prime Minister s Office the State Government resolved that the High
Level Committee will have full powers to take decision in respect of
implementation and execution of these projects.
5. In the
Minutes of the High Level Committee Meeting dated 7th
September 2001 it has been stated that 422 schools were identified
for repairs / reconstructions.
6. The
Government resolution dated 19th September 2001 mentioned
that 135 Government Schools and 287 Non-Government aided schools have
either been destroyed or have suffered heavy damages, i.e. total 422
schools that were identified by High Level Committee. A copy of the
list of 422 schools is attached with the affidavit in Annexure-II.
7. The name of
the Nalanda Girl s High School, Radhanpur appears in the list of
287 non government aided schools at Serial No.78.
8. It is
submitted that after finalization of list of schools by High Level
Committee, CEPT was engaged to carry out the work of approving plans
and estimates and thereafter payment were to be made by Prime
Minister s office.
9. I, humbly
submit that Nalanda Girl s High School, Radhanpur did not have its
own building prior to earthquake. And it is true that Nalanda Girl s
High School, Radhanpur was running in a rented building which was
heavily damaged as per the survey report. The survey report of
Nalanda Girl s High School, Radhanpur carried out by National
Building Construction Corporation (NBCC) stated as follows (attached
as Annexure-III):
The
damage is extensive. There is no old construction left. NCCBM
estimate is for repair of rented premises. In NBCC estimate the
entire school to be reconstructed with proper planning rather than
having separate structures. Re-strengthening in the form of
horizontal and vertical bands only to the masonry.
10. However,
it is not clear from the Minutes of the High Level Committee s
meetings why did the government decided to cover this school i.e.
Nalanda Girl s High School, Radhanpur (which was running in rented
premises) under the earthquake reconstruction scheme. It is my humble
submission that possibly the committee would have taken this decision
in view of the fact that the girls studying in this school should not
suffer in their pursuit of education.
It is my
humble submission that in view of the above facts, the Hon ble High
Court may kindly give necessary directions in this case.
5. On
the basis of the above allegations and counter allegations, learned
advocates appearing for the both sides made detail submissions.
Learned Sr.Advocate Mr.Kavina for the petitioner vehemently contended
that SSVVM trust previously run Nalanda Girl s High School in
rented premises. The trust neither owned the land nor the building.
Land and building belonged to SAN. Government Resolution dated
19.09.2001 and 26.09.2001 did not envisage assisting for
re-construction of school building where the trust is not owner of
the damaged building. Respondent No.5 by making false declaration
before the authorities received large amount of funds from the PMNR
fund in favour of SSVVM a trust of which he himself is founder
and Managing Trustee and other trustees are his close relatives. He
drew our attention to the various documents on record, reference to
which shall be made at a later stage.
6. On
behalf of respondent No.5 and 8, learned Senior Advocate Mr.S.B.Vakil
contended that all the trustees of the SSVVM trust are not joined
though they are necessary parties. Petitioner is political rival of
the respondent No.5 and he has filed this petition for political
vendetta, therefore, writ of this Court should not be entrusted to
him.
6.1 He
contended that no illegality has been committed by any of the
respondents. SAN did not object to fund being released in favour of
the respondent No.8 trust for construction of new school
building. Learned Sr. Advocate Mr.Vakil has relied on the following
decisions:
(1) Atmaram
Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin and another , 13
GLR 828 : AIR 1973 GUJ 113, in which it is observed that decision
making by the co-trustees must be joint in absence of severality in
the trust deed.
(2) Kansing
Kalusing Thakore and others vs. Rabari Maganbhai Vashrambhai and
others, (2006) 12 SCC 360, in which the Apex Court finding that
the petitioner acted with malafide intention and had filed public
interest litigation for personal grievance, held that such writ
petition would amount to abuse of process of court.
(3) Divine
Retreat Centre vs. State of Kerala and others, (2008) 3 SCC 542,
wherein the Apex Court observed that the petition under Section 482
of the Code of Criminal Procedure on an anonymous application
seeking direction for investigation sent directly in the name of
Judge of the High Court ought not to have been entertained.
(4) D.
Venkatasubramaniam and others vs. M.K.Mohan Krishnamachari and
another, (2009) 10 SCC 488, wherein the Apex Court finding that
High Court without recording any reason had directed the police to
investigate the case from particular angle and take certain steps.
It was found that this would amount to over-stepping the limits of
judicial interference. Scope and parameters of public interest
litigation in the above background were also examined.
(5) Kunga
Nima Lepcha and others vs. State of Sikkim and others, (2010) 4
SCC 513, wherein, the Apex Court finding that the public interest
litigation being pursued by a political rival and that the petition
was inspired by political rivalry rather than public concern,
observed that writ jurisdiction of the Court cannot be turned into
an instrument of such partisan consideration.
7. Learned
Government Pleader contended that the object of State Government
policy was to assist reconstruction of the damaged school building to
ensure that education of the students does not suffer.
8. Upon
hearing learned advocates for the parties and on perusal of the
documents on record, the following factual position clearly emerges.
8.1 Admittedly,
the school in question run by the respondent No.8 trust was
previously situated in the building belonging to SAN. Building was
given rent free to respondent No.8 trust for running said school.
Respondent No.8 was neither the owner of the land nor the building.
8.2 Respondent
No.5 who is a Member of Legislative Assembly from Radhanpur
Constituency is Managing Trustee of the respondent No.8 trust –
SSVVM. Other trustees are his close relatives.
8.3 Quite
apart from the question, whether the school building suffered any
serious or substantial damage due to earthquake, the question is who
would be entitled to receive the government assistance in case of
such damage.
8.4 SAN
never applied for government assistance for reconstruction of the
building even if it was damaged.
8.5 Two
letters written by the Secretary of SAN dated 26.07.2007 and
10.09.2007 are self explanatory in this respect. These letters were
received in response to the application for information under the
Right to Information Act, 2005 given by the petitioner. In the letter
dated 26.07.2007 it is stated inter alia that presently Nalanda
Girl s School is not running in the building of SAN. The building
was previously given rent free. During the earthquake which took
place on 26th January 2001, the building did suffer
damage, however, SAN has not claimed any fund for such damage. SAN is
not even aware about the compensation for such damage being paid to
anyone else.
8.6 In
a further letter dated 10.09.2007 written by the Secretary of SAN, it
is stated that since the building was handed over to the SSVVM at the
time of earthquake, the extent of damage and the amount of the
expenditure are not known to him. Presently also, said building is
being used by the SSVVM for educational purposes and the building has
not been demolished for reconstruction.
8.7 It
is undisputed that SSVVM applied for assistance from the PMNR fund
for reconstruction of the school building which according to it, was
damaged during the earthquake. Fund to the tune of Rs.21.02 lakhs is
also made available by directly applying it to the construction
agency. Such building is constructed on the land which the trust
claims to have received as gift from a private individual.
8.8 Though
we never directed SAN to file any affidavit and SAN is not a
respondent in this petition, it has filed affidavit which is tendered
by the respondent No.5 stating that SAN has no objection to the
relief being given to the SSVVM for construction of the new school
building.
9.
As already noted, in the latest affidavit dated 18.03.2010
respondent No.3 was unable to explain why the government decided to
cover Nalanda Girl s High School which was running in the rented
premises under the Earthquake Reconstruction Scheme. It is somewhat
ambiguously suggested that possibly the Committee would have taken
this decision to ensure that the girls studying in the school should
not suffer in their pursuit of education. To our mind, it is
absolutely clear that the relief fund was made available to the
respondent No.8 by the State agency which was legally impermissible.
First and foremost, we have serious doubt whether the building where
the Nalanda Girl s School was previously functioning received such
extensive damage as to fall in G-4 category so as to require total
reconstruction. The building belongs to SAN. On behalf of the SAN,
letters issued on 26.07.2007 and 10.09.2007 clearly state that though
previously Nalanda Girl s School was functioning in the said
building, presently the said school is not stationed there. However,
SSVVM still continues to occupy the building running some other
educational institutions. Building was never pulled down nor
reconstructed. If the same could be used without reconstruction for
some other educational activities, we fail to see how it was declared
unfit for continuing Nalanda Girl s School. If, on the other hand,
conclusion of the authorities was that the building was unsafe for
occupation for educational activities, we do not see how presently
some other educational institution is being operated from the said
building.
10. Our
conclusions do not end here. Quite apart from this controversial
aspect, whether the building itself received extensive damage so as
to require reconstruction, we are firmly of the view that in any
case, SSVVM could not have claimed any relief for reconstruction of
the building since undisputedly the land and building belonged to SAN
and not SSVVM. If at all SAN could have claimed any relief from the
Government. Admittedly SAN never claimed such relief. As indicated in
its letter dated 10.09.2007, SAN is not aware that such relief was
claimed. Its later stand that it has no objection to SSVVM receiving
such relief is of no consequence.
11. Combined
reading of two government resolutions dated 19.09.2001 and 26.01.2001
framing the scheme and declaration required to be made by the
claimant for receiving such government assistance under the said
scheme makes it abundantly clear that the government assistance was
to be made available only to the owner of the building. In the
resolution dated 19.09.2001, it is stated that due to earthquake,
buildings of 135 government and 287 non government aided schools have
either been destroyed or suffered heavy damage. Hon’ble Prime
Minister has approved the State Government’s proposal to assist
reconstruction and up gradation in full and partially collapsed
government and government aided schools from PMNR fund. Terms on
which such grants could be given included that the trust shall
continue to use building for such school and shall not use it for any
other purpose. It is also one of the conditions that the trust shall
not transfer said land and building to any other third party for 15
years from the date of completion of such building. In further
resolution dated 26.09.2001, it is provided that grant-in-aid schools
will include those schools of the district which are absolutely
destroyed or who have suffered heavy losses. Declaration that the
claimant / trust / school had to make for receiving such grant also
had to undertake to adhere to the conditions of the said resolution.
It had to furnish documentary proof with regard to the building of
the school, its ownership of the land and the construction.
Combined
reading of the said resolutions dated 19.09.2001 and 26.09.2001 and
the deed of declaration make it abundantly clear that grant from PMNR
fund was to be made available for reconstruction of school building
which is either completely destroyed or heavily damaged provided the
trust was the owner of the land and school building.
12. Even
otherwise, it can be easily be seen how releasing of the such fund in
favour of an occupant who is not the owner can be misused as in the
present case. The SSVVM which was never the owner of the land and
building but only occupied it rent free claimed government assistance
for reconstruction of the building. Such claim was accepted and huge
funds of Rs.21.02 lakh were released though SSVVM was not owner of
the previous building which is alleged to have received extensive
damage. Thus, with the Government aid, SSVVM become owner of
constructed school building which prior to such aid was never owned
by it. Thus, with the Government aid, SSVVM instead of a tenant or a
permissive occupant of the building become owner of building
constructed at the government cost.
13. This
coupled with the close association of the respondent No.5 in the
trust in question and the government agencies showing willingness to
bend the rules to accommodate the trust convinces us that this is a
fit case where writ should be issued. As already noted, respondent
No.3 in his further affidavit dated 18.03.2010 could not explain why
and how such funds were put at the disposal of the SSVVM when it did
not own the previous building in which the school was functioning.
In other words, the government aided SSVVM to construct its own
building for the alleged damage to the building which SSVVM never
owned. For damage to someone else’s building, SSVVM secured
government fund to construct its own school building. As recorded
earlier, we have our serious doubt whether the building in question
received such extensive damage so as to fall in G-4 category. As
recorded, said building even as per the SAN is still being utilized
by the respondent No.8 trust for running other educational
institution. Further in declaration form which came to be filed by
the trust seeking the grant (copy thereof is produced at page.158 to
the compilation), name of school mentioned is `Nalanda Kanya
Vidhyala’. The owner of the school and building is shown to be SAN.
When these facts were before the authority, we fail to see how grant
was released in favour of the SVVMM clearly against the terms,
conditions and objects of the government resolutions dated 19.05.2010
and 26.01.2001.
14. We
are of the view that quite apart from recovering the full amount from
the SSVVM with interest, departmental as well as penal actions should
be initiated against the persons concerned.
15. We
are, clearly, of the opinion that the SSVVM could not have received
such government assistance from the PMNR fund but for either through
conscious connivance or lose adherence to the rules by the government
officers. We, however, express no conclusive opinion in this regard
but require the government to hold inquiry and take actions against
the erring government officials at department level if found
involved. We
also require the government to initiate the criminal proceedings
against those including respondent No.5 if prima facie found to have
committed any offence. Such investigation shall be made by CID
(Crime) and not by local police.
16. Two
issues need to be dealt with. First objection to the petition is that
the same is politically motivated. We do not find any substance in
the opposition of respondent No.5 that the petition is politically
motivated or that only on that count the same should be dismissed.
Whatever may be political rivalry between the petitioner and the 5th
respondent, we have examined the materials on record to find out
whether any irregularity or illegality has been committed in
releasing grant in favour of the respondent No.8-trust. Second
opposition to the petition on the ground that all the trustees are
not joined as respondents, also must fail. On 07.04.2010 with respect
to question of joining the trust, the following order was passed.
In
view of the affidavit filed by fifth respondent, we direct to implead
Shree Vivekanand Vikas Mandal, Radhanpur as party respondent through
its trustee. Cause title be amended accordingly. Notice on newly
impleaded respondent. Petitioner to serve notice through its trustee,
i.e. fifth respondent. Direct notice by speed post permitted.
Newly
impleaded respondent to file their reply within two weeks.
Post
the matter for further hearing on 26th April 2010 within
five cases in the first board.
This
order has not been challenged either by the respondent No.5 or
respondent No.8. The trust, thus, was to be represented by the
respondent No.5. In any case, an affidavit-in-reply has been filed on
behalf of the respondent No.8 Trust by its Secretary. Trust is
thus sufficiently represented. It had full notice of the contents of
the petition and other pleadings on record. Trust also fully
participated in the hearing by filing affidavit and representing its
case through the Advocate. Its opposition has been taken into
account. Contents of the affidavit-in-reply are taken note of.
Significantly, learned Sr. Advocate Mr.S.B.Vakil argued before us on
behalf of both respondent No.5 as well as respondent No.8. Grievance
that the other trustees were not joined is merely technical and
therefore, turned down.
17. In
the result, the petition is disposed of with the following
directions.
(1) Respondents
and particularly, respondent No.1 shall take all necessary steps to
recover full amount of government assistance of Rs.21.02 lakhs
released for construction of the building from the PMNR fund with 10
% simple interest from the date of payment till actual recovery from
the SSVVM which shall be done within two months. If the respondent
No.8 refuses to refund the amount as directed above, steps will be
taken to cancel recognition of the Nalanda Girl s High School.
(2) Respondent
No.1 shall take necessary steps to hold inquiry to find out if any
government officials were responsible for lapse and if so found,
initiate departmental proceedings against all such officers.
(3) Respondent
No.1 shall also examine and if prima facie involvement is found,
initiate criminal prosecution against those who are prima facie found
to have committed any offence and hand over such investigation to CID
(Crime).
(4) Respondent
Nos.5 and 8 shall jointly pay cost of Rs.25,000/-. Since the
petitioner has filed this petition in the public interest, such cost
shall be deposited with the Gujarat State Legal Services Authority
and shall not be paid over to the petitioner.
(5) Respondent
No.1 shall also examine whether there are similar such cases of other
trusts where grant from the PMNR fund has been released contrary to
the terms of the resolution. If so found, in such cases also, similar
steps will be taken.
With
the above directions, the petition stands disposed of.
(S.
J. MUKHOPADHAYA, C.J. )
(
AKIL KURESHI, J. )
kailash
Further
Order
At
this stage, Sr.Counsel Mr.S.B.Vakil for the respondents Nos.5 and 8
requested for stay of this judgment for a period of six weeks. For
the elaborate reasons mentioned in the judgment, request to stay this
judgment is refused.
(S.
J. MUKHOPADHAYA, C.J. )
(
AKIL KURESHI, J. )
kailash
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