{"id":141250,"date":"2010-09-27T00:00:00","date_gmt":"2010-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/farsubhai-vs-state-on-27-september-2010"},"modified":"2016-11-28T15:25:51","modified_gmt":"2016-11-28T09:55:51","slug":"farsubhai-vs-state-on-27-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/farsubhai-vs-state-on-27-september-2010","title":{"rendered":"Farsubhai vs State on 27 September, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Farsubhai vs State on 27 September, 2010<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/24472\/2007\t 1\/ 19\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 24472 of 2007\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 12665 of 2007\n \n\nIn\nSPECIAL CIVIL APPLICATION No. 24472 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n==================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n==================================================\n\n\n \n\nFARSUBHAI\nMULJIBHAI GOKLANI - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 7 - Respondent(s)\n \n\n==================================================\nAppearance : \nMR\nPERCY KAVINA SR ADVOCATE WITH MR MM TIRMIZI for Petitioner(s) : 1, \nMR\nPK JANI GOVERNMENT PLEADER for Respondent(s) : 1, \nMR VIRAT G POPAT\nfor Respondent(s) : 5, \nMR ANSHIN H DESAI for Respondent(s) : 6, \nMR\nKEDAR B BINIWALE for Respondent(s) : 7, \nMR SB VAKIL SR ADVOCATE\nWITH MS ARCHANA R ACHARYA for Respondent(s) :\n8, \n================================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/09\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE AKIL KURESHI)<\/p>\n
1.\tThis
\npetition filed in the public interest questions the legality of the
\nfunds distributed from the Prime Minister’s National Relief Fund
\n(hereinafter referred to as  PMNR fund  for short) for
\nconstruction of a building for school run by the trust of which the
\nrespondent No.5 is the founder.\n<\/p>\n
2.\tFacts
\nof the case of the petitioner are as follows:\n<\/p>\n
2.1\tPetitioner
\nclaims to be a social worker doing such work in Radhanpur Taluka.
\nRespondent No.5 is a member of Legislative Assembly elected from the
\nsaid constituency. According to the petitioner said respondent No.5
\nhas misused the grant received from the PMNR fund for the purpose of
\nconstruction of building of the school run by the trust of which he
\nhimself is a President.\n<\/p>\n
2.2\tIt
\nis the case of the petitioner that respondent No.5 is founder of a
\ntrust called  Shri Swami Vivekanandan Vikas Mandal (hereinafter
\nreferred to as  SSVVM  for short) which is a trust registered
\nunder the Bombay Public Trust Act. Petitioner has given details of
\nthe members of the trust, which are not disputed by the respondents;
\nas follow:\n<\/p>\n
Sr.No.\n<\/p>\n
      Name<\/p>\n
Relationship
\n\t\t\twith respondent No.5<\/p>\n
1.<\/p>\n
Shankarbhai
\n\t\t\tLagdhirbhai Chaudhry<\/p>\n
Self
\n\t\t\t  President<\/p>\n
2.<\/p>\n
Maheshbhai
\n\t\t\tPrahladbhai Mehta<\/p>\n
3.<\/p>\n
Dajabhai
\n\t\t\tRatanbhai Patel<\/p>\n
Brother-in-law<\/p>\n
4.<\/p>\n
Godha
\n\t\t\tJehabhai<\/p>\n
Nephew<\/p>\n
5.<\/p>\n
Hameerbhai
\n\t\t\tRupabhai Patel <\/p>\n
Nephew<\/p>\n
6.<\/p>\n
Bhavabhai
\n\t\t\tKarshanbhai Piliyatar<\/p>\n
Brother-in-law<\/p>\n
7.<\/p>\n
Paramaben
\n\t\t\tS. Patel<\/p>\n
Wife<\/p>\n
2.3\tThus,
\nrespondent No.5 is founder and President of the said trust and other
\nmembers are close relatives of the said respondent.  In the year
\n2001, devastating earthquake caused extensive damage to a large
\nnumber of buildings in the region. Since the number of school
\nbuildings also suffered such damage, the State Government in order to
\nensure that education of the students does not suffer, decided to
\nassist reconstruction of fully or substantially damaged buildings by
\ngiving grant from PMNR fund. Government
\nformulated a scheme in this regard under Resolutions dated 19.09.2001
\nand 26.09.2001. Government assistance was to be given on the
\nfollowing conditions as contained in the resolution dated 19.09.2001.\n<\/p>\n
 Government
\nhas also decided to assist grant-in-aid Secondary and Higher
\nSecondary School totally collapsed and heavily damaged (only G4
\nlevel) from PMNRF on following conditions:-\n<\/p>\n
\tThe school
\n\t\/ trust applying for the assistance from PMNRF shall be a registered
\n\tbody under the law.\n<\/p>\n
\tThe School
\n\t\/ Trust shall not transfer the said land \/ buildings to any other
\n\tinstitution or person for 15 years from the date of completion of
\n\tsuch building.\n<\/p>\n
2.3\tIn
\nsubsequent resolution dated 26.09.2001, it was clarified as under.\n<\/p>\n
 The
\ngrant-in-aid Secondary \/ Higher Secondary School in your District
\nincluded in the Prime Minister Relief Fund which are absolutely
\ndestroyed in the earthquake or who have suffered heavy losses, such
\nschools satisfying the G-4 level conditions only then such schools
\nwork can be taken on hand from the P.M.Fund. As stated in the
\ncondition the District Education Officers shall obtain the assurance
\nletter on the requisite stamp paper for the schools desiring
\nconstruction.\n<\/p>\n
2.4\tThe
\nclaimant school had to make a declaration before the government in
\nterms of the said resolutions dated 19.09.2001 and 26.09.2001 in a
\nstandard format which provided  as under :\n<\/p>\n
 We do hereby
\ngive assurance on oath that :\n<\/p>\n
1.\tThe building
\nof our school has been damaged on account of the earthquake which
\noccurred on 26.01.2001 and the primary information thereof has been
\nproduced herewith and we are also ready to furnish the additional
\ninformation which has been called for from the different departments
\nas and when received.\n<\/p>\n
2.\tWe do hereby
\nagree that rules and regulations framed under Resolution
\nNO.BMS-112001-1170-G dated 19.09.2001 issued by the Gujarat State
\nEducation Department for providing aid shall be binding to us.\n<\/p>\n
3.\tThere is no
\ndispute with regard to the building and ownership of the school as
\nwell as its administration and there is no litigation pending in that
\nconnection in any forum.\n<\/p>\n
4.\tWe also
\ndo hereby agree to furnish any documentary proofs with regard to the
\nbuilding of the school, ownership of its land and construction and
\nother relevant documents of the present building as and when demanded
\nfrom us within the stipulated time period and without any delay.\n<\/p>\n
5.\tWe also do
\nhereby give assurance that we shall strictly adhere to each and every
\ninstructions and procedures indicated and laid down by the Government
\nin this connection.\n<\/p>\n
6.\tIf any of
\nthe foregoing terms and conditions or those that may be implied by
\nthe Government from time to time in this connection is violated or
\nany default in that regard is committed by us or any of the persons
\nfrom our side, we agree that the Government shall be entitled to
\ndeduct the same from the grant which is allotted to us by the
\ngovernment itself.\n<\/p>\n
2.5\tIt
\nis, thus, case of the petitioner that as per the Government policy,
\nassistance for reconstruction of the building of grant-in-aid school
\nwas to be given only in case of total destruction or substantial
\ndamage to the school building and only if the trust running the
\nschool had ownership of such land and building. It is, however, case
\nof the petitioner that  SSVVM  run a school in the name of Nalanda
\nGirl’s School but did not own the  land or building and such school
\nwas functioning on the land and building owned by the Sarvoday Arogya
\nNidhi, Radhanpur (for short  SAN ) given to SSVVM for its use
\nrent free.  It is therefore the case of the petitioner that SSVVM was
\nnot entitled to receive any grant from the PMNR fund for construction
\nof school building since the trust running the school neither owned
\nthe land nor the building. According to the petitioner, SAN never
\napplied for assistance for reconstruction of the building. Petitioner
\nhas referred to two letters dated 26.07.2007 and 10.09.2007 written
\nby the Secretary of SAN clarifying its position in this regard.
\nReference to contents of these letters will be made later.\n<\/p>\n
2.6\tDespite
\nthis position, it appears that SSVVM received substantial grant from
\nthe PMNR fund for reconstruction of school building. As per the
\npetitioner, the trust received grant of Rs.60.95 lakhs from the PMNR
\nfund. Such grant was claimed and received by creating false documents
\nwith active help and support of the respondents Nos.3 and 4 who are
\ngovernment officials. It is, in fact, case of the petitioner that the
\nbuilding where the school in question previously was functioning
\nnever received any extensive damage to fall in G-4 category. Even the
\nclaim of such damage was false.\n<\/p>\n
2.7\tBy
\nreceiving such funds, respondent No.5 constructed new building of the
\ntrust at another place where also the trust did not own the land. It
\nis, thus, the case of the petitioner that respondent No.5 misused an
\namount of Rs.60.95 lakhs from PMNR fund by creating false evidence.\n<\/p>\n
2.8\tThe
\npetitioner has therefore prayed for direction to recover the amount
\ndisbursed from PMNR fund, criminal action against respondents Nos.2
\nto 5 and additional departmental action against government officers.\n<\/p>\n
3.\tSeveral
\naffidavits have been filed by State authorities as well as by the
\nother respondents. Primarily, the stand of the respondent No.5 is
\nthat the petitioner is a political personality. Petition is filed
\nmalafide to settle private scores. Necessary documents were presented
\nbefore the authority for sanctioning grant. Trust has never received
\nthe grant and the amount is directly paid to the construction company
\nupon completion of the construction work. Amount released was
\nRs.21.02 lakh  and allegation of disbursement of Rs.60.95 lakhs  is
\nhighly exaggerated. Land on which the new building has now been
\nconstructed has been gifted to the trust by one Dalsukhram B.
\nThakkar.  The SAN has given no objection to the fund being given to
\nthe SSVVM trurst. On behalf of SAN, affidavit dated 06.04.2010 has
\nalso been filed in which it is stated that SAN has no objection to
\nSSVVM receiving relief for damage suffered by the school building in
\nthe earthquake.\n<\/p>\n
3.1\tSince
\nobjection was raised on behalf of the respondent No.5 that trust is
\nnot joined as party, the trust SSVVM was joined as additional
\nrespondent No.8. Affidavit has also been filed by one Shri Dazabhai
\nRatnabhai Patel, Secretary  of the trust on 21.06.2010 stating inter
\nalia that the trust has disclosed to the authorities that the damaged
\nbuilding in question belonged to SAN and the trust was managing the
\nschool.\n<\/p>\n
4.\tOfficial
\nrespondents have tried to support the respondent No.5. In an
\naffidavit dated 18.07.2008 filed by one Shri A.S.Barot, Lecturer,
\nClass-II, it is stated as follows :\n<\/p>\n
 13.\tTherefore,
\nas per the proposal of the NBCC estimated cost of the reconstruction
\nof the school in question was Rs.24.36 lacs. The NBCC constructed
\nschool building on the land owned by the Swami Vivekanand Trust,
\nRadhanpur by incurring actual expenditure of Rs.21.02 lacs  which was
\nmade available directly to the NBCC by the Prime Minister s Office.
\nTherefore, it is clear that the funds were made available actually
\nfrom the PMNRF to the NBCC which carried out the construction of the
\nschool and neither State Government nor any officer of the State
\nGovernment has either received amount or has disbursed any amount to
\nthe trustees or school management of respondent No.5. Even the funds
\nhave not reached in any way to the school management of the
\nrespondent No.5 in any way. The construction agency i.e. NBCC has
\nreceived the amount from the PMNRF. It is submitted that the project
\nproposal was submitted to the Prime Minister s office, after the
\ninformation collected from the District Education Officer and the
\nsaid project was considered by the Prime Minister s office.
\nTherefore, work of the State Government or its officer had come to
\nend on submitting the project report. The construction activities was
\ncarried out by the construction agency appointed by the Prime
\nMinister s office and the State Government had no role to play in
\nthe same.\n<\/p>\n
14.\tIn view of
\nthe above, prayer sought in the petition that the State Government
\nshould initiate action for recovery of money released from PMNRF is
\nabsolutely misconceived and baseless and other prayers regarding the
\naction against officer are also misconceived and without any
\napplication of mind.\n<\/p>\n
4.1\tOn
\n16.02.2010, we called upon the said respondent No.3 to file affidavit
\non certain specific aspects of the matter as under:\n<\/p>\n
 \tFrom the
\naffidavit filed by the 3rd respondent (S.C.A. No.24472\/07)
\nit appears that building of Nalanda Girls High School, Radhanpur, was
\ndamaged in earthquake and for the said reason a sum of Rs.20.83 lakhs
\nwas granted to National Building Construction Corporation (NBCC) for
\nconstruction of the school building, which is run by a Trust of which
\nthe 5th respondent is one of the trustees.\n<\/p>\n
\tCounsel for
\nthe petitioners submitted that all the trustees are relatives of the
\n5th respondent who are running the school and the said
\nTrust has no school building, but it was running in a rented
\nbuilding.\n<\/p>\n
\tIn the
\ncircumstances, we direct the 3rd and 5th
\nrespondents to file additional affidavits and state whether Nalanda
\nGirls High School, Radhanpur, had its own building prior to
\nearthquake?  If it was a tenant in some other building which was
\ndamaged then why State Government will construct and provide a
\nseparate building for the school, amounting to donating a new
\nbuilding in favour of the school run by the 5th respondent
\nalong with relatives.\n<\/p>\n
\tLet the matter
\nbe posted on 04.03.2010.\n<\/p>\n
4.2\tPursuant
\nto the said order and the subsequent reminder on 04.03.2010, one Shri
\nC.V.Som, IAS,  Commissioner of Schools and Mid-day Meals, Gandhinagar
\nfiled affidavit dated 18.03.2010 stating inter alia that;\n<\/p>\n
 4.\tThe
\nGovernment resolution dated 19th September 2001 of
\nEducation Department, Government of Gujarat (attached with this
\naffidavit in Annexure-I) states that after consultation with the
\nPrime Minister s Office the State Government resolved that the High
\nLevel Committee will have full powers to take decision in respect of
\nimplementation and execution of these projects.\n<\/p>\n
5.\tIn the
\nMinutes of the High Level Committee Meeting dated 7th
\nSeptember 2001 it has been stated that 422 schools were identified
\nfor repairs \/ reconstructions.\n<\/p>\n
6.\tThe
\nGovernment resolution dated 19th September 2001 mentioned
\nthat 135 Government Schools and 287 Non-Government aided schools have
\neither been destroyed or have suffered heavy damages, i.e. total 422
\nschools that were identified by High Level Committee. A copy of the
\nlist of 422 schools is attached with the affidavit in Annexure-II.\n<\/p>\n
7.\tThe name of
\nthe Nalanda Girl s High School, Radhanpur appears in the list of
\n287 non government aided schools at Serial No.78.\n<\/p>\n
8.\tIt is
\nsubmitted that after finalization of list of schools by High Level
\nCommittee, CEPT was engaged to carry out the work of approving plans
\nand estimates and thereafter payment were to be made by Prime
\nMinister s office.\n<\/p>\n
9.\tI, humbly
\nsubmit that Nalanda Girl s High School, Radhanpur did not have its
\nown building prior to earthquake. And it is true that Nalanda Girl s
\nHigh School, Radhanpur was running in a rented building which was
\nheavily damaged as per the survey report. The survey report of
\nNalanda Girl s High School, Radhanpur  carried out by National
\nBuilding Construction Corporation (NBCC) stated as follows (attached
\nas Annexure-III):\n<\/p>\n
 The
\ndamage is extensive. There is no old construction left. NCCBM
\nestimate is for repair of rented premises. In NBCC estimate the
\nentire school to be reconstructed with proper planning rather than
\nhaving separate structures. Re-strengthening in the form of
\nhorizontal and vertical bands only to the masonry.\n<\/p>\n
10.\tHowever,
\nit is not clear from the Minutes of the High Level Committee s
\nmeetings why did the government decided to cover this school i.e.
\nNalanda Girl s High School, Radhanpur (which was running in rented
\npremises) under the earthquake reconstruction scheme. It is my humble
\nsubmission that possibly the committee would have taken this decision
\nin view of the fact that the girls studying in this school should not
\nsuffer in their pursuit of education.\n<\/p>\n
\tIt is my
\nhumble submission that in view of the above facts, the Hon ble High
\nCourt may kindly give necessary directions in this case.\n<\/p>\n
5.\tOn
\nthe basis of the above allegations and counter allegations, learned
\nadvocates appearing for the both sides made detail submissions.
\nLearned Sr.Advocate Mr.Kavina for the petitioner vehemently contended
\nthat SSVVM trust previously run Nalanda Girl s High School in
\nrented premises. The trust neither owned the land nor the building.
\nLand and building belonged to SAN. Government Resolution dated
\n19.09.2001  and 26.09.2001 did not envisage assisting for
\nre-construction of school building where the trust is not owner of
\nthe damaged building. Respondent No.5 by making false declaration
\nbefore the authorities received large amount of funds from the PMNR
\nfund in favour of SSVVM   a trust of which he himself is founder
\nand Managing Trustee and other trustees are his close relatives. He
\ndrew our attention to the various documents on record, reference to
\nwhich shall be made at a later stage.\n<\/p>\n
6.\tOn
\nbehalf of respondent No.5 and 8, learned Senior Advocate Mr.S.B.Vakil
\ncontended that all the trustees of the SSVVM trust are not joined
\nthough they are necessary parties. Petitioner is political rival of
\nthe respondent No.5 and he has filed this petition for political
\nvendetta, therefore, writ of this Court should not be entrusted to
\nhim.\n<\/p>\n
6.1\tHe
\ncontended that no illegality has been committed by any of the
\nrespondents. SAN did not object to fund being released in favour of
\nthe respondent No.8   trust for construction of new school
\nbuilding. Learned Sr. Advocate Mr.Vakil has relied on the following
\ndecisions:\n<\/p>\n
(1)\tAtmaram
\nRanchhodbhai v. Gulamhusein Gulam Mohiyaddin \tand<\/a> another , 13
\nGLR 828 : AIR 1973 GUJ 113, in which it is \tobserved that decision
\nmaking by the co-trustees must be \tjoint in absence of severality in
\nthe trust deed.\n<\/p>\n
(2)\tKansing
\nKalusing Thakore and others vs. Rabari Maganbhai \tVashrambhai and
\nothers, (2006) 12 SCC 360, in which the \tApex Court finding that
\nthe petitioner acted with malafide \tintention and had filed public
\ninterest litigation for personal \tgrievance, held that such writ
\npetition would amount to abuse \tof process of court.\n<\/p>\n
(3)\tDivine
\nRetreat Centre vs. State of Kerala and others, (2008) 3 \tSCC 542,
\nwherein the Apex Court observed that the petition \tunder Section 482
\nof the Code of Criminal Procedure on an \tanonymous application
\nseeking direction for investigation \tsent directly in the name of
\nJudge of the High Court ought not \tto have been entertained.\n<\/p>\n
(4)\tD.\n<\/p>\n
Venkatasubramaniam and others vs. M.K.Mohan \tKrishnamachari and
\nanother, (2009) 10 SCC 488, wherein the \tApex Court finding that
\nHigh Court without recording any \treason had directed the police to
\ninvestigate the case from \tparticular angle and take certain steps.
\nIt was found that this \twould amount to over-stepping the limits of
\njudicial \tinterference. Scope and parameters of public interest
\n\tlitigation in the above background were also examined.\n<\/p>\n
(5)\tKunga
\nNima Lepcha and others  vs. State of Sikkim and \tothers, (2010) 4
\nSCC 513, wherein, the Apex Court finding \tthat the public interest
\nlitigation being pursued by a political \trival and that the petition
\nwas inspired by political rivalry \trather \tthan public concern,
\nobserved that writ \tjurisdiction of the Court cannot be turned into
\nan \tinstrument of such partisan \tconsideration.\n<\/p>\n
7.\tLearned
\nGovernment Pleader contended that the object of State Government
\npolicy was to assist reconstruction of the damaged school building to
\nensure that education of the students does not suffer.\n<\/p>\n
8.\tUpon
\nhearing learned advocates for the parties and on perusal of the
\ndocuments on record, the following factual position clearly emerges.\n<\/p>\n
8.1\tAdmittedly,
\nthe school in question run by the respondent No.8 trust was
\npreviously situated in the building belonging to SAN. Building was
\ngiven rent free to respondent No.8 trust for running said school.
\nRespondent No.8 was neither the owner of the land nor the building.\n<\/p>\n
8.2\tRespondent
\nNo.5 who is a Member of Legislative Assembly from Radhanpur
\nConstituency is Managing Trustee of the respondent No.8 trust –
\nSSVVM. Other trustees are his close relatives.\n<\/p>\n
8.3\tQuite
\napart from the question, whether the school building suffered any
\nserious or substantial damage due to earthquake, the question is who
\nwould be entitled to receive the government assistance in case of
\nsuch damage.\n<\/p>\n
8.4\tSAN
\nnever applied for government assistance for reconstruction of the
\nbuilding even if it was damaged.\n<\/p>\n
8.5\tTwo
\nletters written by the Secretary of SAN dated 26.07.2007  and
\n10.09.2007  are self explanatory in this respect. These letters were
\nreceived in response to the application for information under the
\nRight to Information Act, 2005 given by the petitioner. In the letter
\ndated 26.07.2007 it is stated inter alia that presently Nalanda
\nGirl s School is not running in the building of SAN. The building
\nwas previously given rent free. During the earthquake which took
\nplace on 26th January 2001, the building did suffer
\ndamage, however, SAN has not claimed any fund for such damage. SAN is
\nnot even aware about the compensation for such damage being paid to
\nanyone else.\n<\/p>\n
8.6\tIn
\na further letter dated 10.09.2007 written by the Secretary of SAN, it
\nis stated that since the building was handed over to the SSVVM at the
\ntime of earthquake, the extent of damage and the amount of the
\nexpenditure are not known to him.  Presently also, said building is
\nbeing used by the SSVVM for educational purposes and the building has
\nnot been demolished for reconstruction.\n<\/p>\n
8.7\tIt
\nis undisputed that SSVVM applied for assistance from the PMNR fund
\nfor reconstruction of the school building which according to it, was
\ndamaged during the earthquake. Fund to the tune of Rs.21.02 lakhs is
\nalso made available by directly applying it  to the construction
\nagency. Such building is constructed on the land which the trust
\nclaims to have received as gift from a private individual.\n<\/p>\n
8.8\tThough
\nwe never directed SAN to file any affidavit and SAN is not a
\nrespondent in this petition, it has filed affidavit which is tendered
\nby the respondent No.5 stating that SAN has no objection to the
\nrelief being given to the SSVVM for construction of the new school
\nbuilding.\n<\/p>\n
9.
\n\tAs already noted, in the latest affidavit dated 18.03.2010
\nrespondent No.3 was unable to explain why the government decided to
\ncover Nalanda Girl s High School which was running in the rented
\npremises under the Earthquake Reconstruction Scheme. It is somewhat
\nambiguously suggested that possibly the Committee  would have taken
\nthis decision to ensure  that the girls studying in the school should
\nnot suffer in their pursuit of education. To our mind, it is
\nabsolutely clear that the relief fund was made available to the
\nrespondent No.8 by the State agency which was legally impermissible.
\nFirst and foremost, we have serious doubt whether the building where
\nthe Nalanda Girl s School was previously functioning received such
\nextensive damage as to fall in G-4 category so as to require total
\nreconstruction. The building belongs to SAN. On behalf of the SAN,
\nletters issued on 26.07.2007 and 10.09.2007 clearly state that though
\npreviously Nalanda Girl s School was functioning in the said
\nbuilding, presently the said school is not stationed there. However,
\nSSVVM still continues to occupy the building running some other
\neducational institutions. Building was never pulled down nor
\nreconstructed. If the same could be used without reconstruction for
\nsome other educational activities, we fail to see how it was declared
\nunfit for continuing Nalanda Girl s School. If, on the other hand,
\nconclusion of the authorities was that the building was unsafe for
\noccupation for educational activities, we do not see how presently
\nsome other educational institution is being operated from the said
\nbuilding.\n<\/p>\n
10.\tOur
\nconclusions do not end here. Quite apart from this controversial
\naspect, whether the building itself received extensive damage so as
\nto require reconstruction, we are firmly of the view that in any
\ncase, SSVVM could not have claimed any relief for reconstruction of
\nthe building since undisputedly the land and building belonged to SAN
\nand not SSVVM. If at all SAN could have claimed any relief from the
\nGovernment. Admittedly SAN never claimed such relief. As indicated in
\nits letter dated 10.09.2007, SAN is not aware that such relief was
\nclaimed. Its later stand that it has no objection to SSVVM receiving
\nsuch relief is of no consequence.\n<\/p>\n
11.\tCombined
\nreading of two government resolutions dated 19.09.2001 and 26.01.2001
\nframing the scheme and declaration required to be made by the
\nclaimant for receiving such government assistance under the said
\nscheme makes it abundantly clear that the government assistance was
\nto be made available only to the owner of the building. In the
\nresolution dated 19.09.2001, it is stated that due to earthquake,
\nbuildings of 135 government and 287 non government aided schools have
\neither been destroyed or suffered heavy damage. Hon’ble Prime
\nMinister has approved the State Government’s proposal to assist
\nreconstruction and up gradation  in full and partially collapsed
\ngovernment and government aided schools from PMNR fund. Terms on
\nwhich such  grants could be given included that the trust shall
\ncontinue to use building for such school and shall not use it for any
\nother purpose. It is also one of the conditions that the trust shall
\nnot transfer said land and building to any other third party for 15
\nyears from the date of completion of such building. In further
\nresolution dated 26.09.2001, it is provided that grant-in-aid schools
\nwill include those schools of the district which are absolutely
\ndestroyed or who have suffered heavy losses. Declaration that the
\nclaimant \/ trust \/ school had to make for receiving such grant also
\nhad to undertake to adhere to the conditions of the said resolution.
\nIt had to furnish documentary proof with regard to the building of
\nthe school, its ownership of the land and the construction.\n<\/p>\n
\tCombined
\nreading of the said resolutions dated 19.09.2001 and 26.09.2001 and
\nthe deed of declaration make it abundantly clear that grant from PMNR
\nfund was to be made available for reconstruction of school building
\nwhich is either completely destroyed or heavily damaged provided the
\ntrust was the owner of the land and school building.\n<\/p>\n
12.\tEven
\notherwise, it can be easily be seen how releasing of the such fund in
\nfavour of an occupant who is not the owner can be misused as in the
\npresent case. The SSVVM which was never the  owner of the land and
\nbuilding but only occupied it rent free claimed government assistance
\nfor reconstruction of the building. Such claim was accepted and huge
\nfunds of Rs.21.02 lakh were released though SSVVM was not owner of
\nthe previous building which is alleged to have received extensive
\ndamage. Thus, with the Government aid, SSVVM become owner of
\nconstructed school building which prior to such aid was never owned
\nby it. Thus, with the Government aid, SSVVM instead of a tenant or a
\npermissive occupant of the building become owner of building
\nconstructed at the government cost.\n<\/p>\n
13.\tThis
\ncoupled with the close association of the respondent No.5 in the
\ntrust in question and the government agencies showing willingness to
\nbend the rules to accommodate the trust convinces us that this is a
\nfit case where writ should be issued. As already noted, respondent
\nNo.3 in his further affidavit dated 18.03.2010 could not explain why
\nand how such funds were put at the disposal of the SSVVM when it did
\nnot own the previous building in which the school was functioning.
\nIn other words, the government aided SSVVM to construct its own
\nbuilding for the alleged damage to the building which SSVVM never
\nowned. For damage to someone else’s building, SSVVM secured
\ngovernment fund to construct its own school building. As recorded
\nearlier, we have our serious doubt whether the building in question
\nreceived such extensive damage so as to fall in G-4 category. As
\nrecorded, said building even as per the SAN is still being utilized
\nby the respondent No.8 trust for running other educational
\ninstitution. Further in declaration form which came to be filed by
\nthe trust seeking the grant (copy thereof is produced at page.158 to
\nthe compilation), name of school mentioned is `Nalanda Kanya
\nVidhyala’. The owner of the school and building is shown to be SAN.
\nWhen these facts were before the authority, we fail to see how grant
\nwas released in favour of the SVVMM clearly against the terms,
\nconditions and objects of the government resolutions dated 19.05.2010
\nand 26.01.2001.\n<\/p>\n
14.\tWe
\nare of the view that quite apart from recovering the full amount from
\nthe SSVVM with interest, departmental as well as penal actions should
\nbe initiated against the persons concerned.\n<\/p>\n
15.\tWe
\nare, clearly, of the opinion that the SSVVM could not have received
\nsuch government assistance from the PMNR fund but for either through
\nconscious connivance or lose adherence to the rules by the government
\nofficers. We, however, express no conclusive opinion in this regard
\nbut require the government to hold inquiry and take actions against
\nthe erring government officials at department level if found
\ninvolved. We
\nalso require the government to initiate the criminal proceedings
\nagainst those including respondent No.5 if prima facie found to have
\ncommitted any offence. Such investigation shall be made by CID
\n(Crime) and not by local police.\n<\/p>\n
16.\tTwo
\nissues need to be dealt with. First objection to the petition is that
\nthe same is politically motivated. We do not find any substance in
\nthe opposition of respondent No.5 that the petition is politically
\nmotivated or that only on that count the same should be dismissed.
\nWhatever may be political rivalry between the petitioner and the 5th
\nrespondent, we have examined the materials on record to find out
\nwhether any irregularity or illegality has been committed in
\nreleasing grant in favour of the respondent No.8-trust.  Second
\nopposition to the petition on the ground that all the trustees are
\nnot joined as respondents, also must fail. On 07.04.2010 with respect
\nto question of joining the trust, the following order was passed.\n<\/p>\n
\t In
\nview of the affidavit filed by fifth respondent, we direct to implead
\nShree Vivekanand Vikas Mandal, Radhanpur as party respondent through
\nits trustee. Cause title be amended accordingly. Notice on newly
\nimpleaded respondent. Petitioner to serve notice through its trustee,
\ni.e. fifth respondent. Direct notice by speed post permitted.\n<\/p>\n
\tNewly
\nimpleaded respondent to file their reply within two weeks.\n<\/p>\n
\tPost
\nthe matter for further hearing on 26th April 2010 within
\nfive cases in the first board.\n<\/p>\n
\tThis
\norder has not been challenged either by the respondent No.5 or
\nrespondent No.8. The trust, thus, was to be represented by the
\nrespondent No.5. In any case, an affidavit-in-reply has been filed on
\nbehalf of the respondent No.8   Trust by its Secretary. Trust is
\nthus sufficiently represented.  It had full notice of the contents of
\nthe petition and other pleadings on record. Trust also fully
\nparticipated in the hearing by filing affidavit and representing its
\ncase through the Advocate. Its opposition has been taken into
\naccount. Contents of the affidavit-in-reply are taken note of.
\nSignificantly, learned Sr. Advocate Mr.S.B.Vakil argued before us on
\nbehalf of both respondent No.5 as well as respondent No.8. Grievance
\nthat the other trustees were not joined is merely technical and
\ntherefore, turned down.\n<\/p>\n
17.\tIn
\nthe result, the petition is disposed of with the following
\ndirections.\n<\/p>\n
(1)\tRespondents
\nand particularly, respondent No.1 shall take all necessary steps to
\nrecover full amount of government assistance of Rs.21.02 lakhs
\nreleased for construction of the building from the PMNR fund with 10
\n% simple interest from the date of payment till  actual recovery from
\nthe SSVVM which shall be done within two months. If the respondent
\nNo.8 refuses to refund the amount as directed above, steps will be
\ntaken to cancel recognition of the Nalanda Girl s High School.\n<\/p>\n
(2)\tRespondent
\nNo.1 shall take necessary steps to hold inquiry to find out if any
\ngovernment officials were responsible for lapse and if so found,
\ninitiate departmental proceedings against all such officers.\n<\/p>\n
(3)\tRespondent
\nNo.1 shall also examine and if prima facie involvement is found,
\ninitiate criminal prosecution against those who are prima facie found
\nto have committed any offence and hand over such investigation to CID
\n(Crime).\n<\/p>\n
(4)\tRespondent
\nNos.5 and 8 shall jointly pay cost of Rs.25,000\/-. Since the
\npetitioner has filed this petition in the public interest, such cost
\nshall be deposited with the Gujarat State Legal Services Authority
\nand shall not be paid over to the petitioner.\n<\/p>\n
(5)\tRespondent
\nNo.1 shall also examine whether there are similar such cases of other
\ntrusts where grant from the PMNR fund has been released contrary to
\nthe terms of the resolution. If so found, in such cases also, similar
\nsteps will be taken.\n<\/p>\n
\tWith
\nthe above directions, the petition stands disposed of.\n<\/p>\n
(S.\n<\/p>\n
J. MUKHOPADHAYA, C.J. )<\/p>\n
(
\nAKIL KURESHI, J. )<\/p>\n
kailash<\/p>\n
Further
\nOrder<\/p>\n
\tAt
\nthis stage, Sr.Counsel Mr.S.B.Vakil for the respondents Nos.5 and 8
\nrequested for stay of this judgment for a period of six weeks. For
\nthe elaborate reasons mentioned in the judgment, request to stay this
\njudgment is refused.\n<\/p>\n
(S.\n<\/p>\n
J. MUKHOPADHAYA, C.J. )<\/p>\n
(
\nAKIL KURESHI, J. )<\/p>\n
kailash<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Farsubhai vs State on 27 September, 2010 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-141250","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nFarsubhai vs State on 27 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/farsubhai-vs-state-on-27-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Farsubhai vs State on 27 September, 2010 - 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