TaxTMI 
TaxTMI 
TaxTMI 
2002 (4) TMI 975
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....ment of the proceedings against the Trust of which he is the Chairman. It is submitted that the conferment of largesse upon the aforesaid respondent is against the provisions of the Punjab Village Common Lands (Regulations) Act, 1961, the Rules made thereunder, Indian Forest Act and the Forest Conservation Act, 1980. In the article "Lord of the Land" published in India Today, it was stated that after the respondent No.7 completed his so-called Bharat Yatra in 1983, he formed the Trust known as "Bharat Yatra Kendra" (hereinafter referred to as "BYK") of which he himself is the Chairman and manipulated the passing of Resolutions by the Gram Panchayat of Bhondsi resolving to gift him State forest land measuring about 600 acres. The land was donated for purposes not contemplated under the statute. It was further alleged that the respondent No.7 had encroached upon 10 acres of land belonging to the Border Security Force. Instead of constructing the Hospital and the Polytechnic for women, for which the land was apparently donated, the respondent No.7 built a sprawling farm-house where he used to retire for weekends even when he was the Prime Minister. When ....
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....ourt. It is alleged that the value of the land, under the occupation of the respondent No.7, is about 12 crores. 500 acres of land, which was given to the Trust for greening of Aravalli Hills, is stated to have been occupied by respondent No.7 by fencing it from all sides. In the counter affidavit filed on behalf of respondents 1 and 2, it is submitted that land measuring 40.6 acres was acquired by BSF at Bhondsi, District Gurgaon, Haryana during 1969 and years thereafter. Subsequently 25th Batallion was assigned the responsibility of imparting basic training to 500 recruits per year. To ensure proper training to the recruits it was felt necessary to have proper training area and also a full-fledged classification firing range as per laid down specifications. BSF established training centre and users trial centre at Bhondsi, where new instruments/ weapons/electronic gadgetry are tested before introducing in various forces. By virtue of these assignments, the BSF centre at Bhondsi is treated a very sensitive establishment. In view of the importance of the BSF centre, the land measuring 158 acres 2 kanals and 8 marlas was acquired in November, 1990, in addition to 40.6 acres of land....
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....ecurity Force land, the respondent No.7 was found to be in possession of the BSF land measuring 8 acres 3 kanals and 7 marlas, the possession of which was delivered to BSF on 16.2.2000. It is claimed that condition for construction of building consisting of three rooms has been fulfilled by respondent No.1 as it has constructed a dispensary in village Bhondsi though not in the land gifted to it for the aforesaid purposes. The Gram Panchayat Resolution No.57 dated 11.12.199 resolving to gift 16 acres 7 kanals and 8 marlas of land to respondent No.7 was never approved. So far as condition of establishing/constructing a Polytechnic for women in lieu of land proposed to be gifted by the Gram Panchayat vide its Resolution No.55 dated 8.12.1989 is concerned, the respondent No.7 is stated to have informed the respondents 3 and 4 that a women Polytechnic under the name and style of "Stree Niketan" has already been established in the year 1992 and the same is providing employment oriented training to women from rural areas as well as the weaker sections of the society in the field of weaving, pottery, embroidery, food processing, etc. It is admitted that the current rate of the la....
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....rest Litigation". The petition is stated to have been filed by the petitioner to gain cheap publicity and to settle old scores which ought not to be countenanced. The petition is stated to have been filed out of vengeance and personal vendetta inasmuch as during the enquiry into the conspiracy angle relating to the assassination of late Rajiv Gandhi, the former Prime Minister of India by commonly known as the Jain Commission, the petitioner while recording of evidence had himself cross-examined the deponent and was agitated due to the replies. He personally preferred an application before the Jain Commission for certain reliefs. The petitioner is accused of not prosecuting bonafide litigation but in the name of public interest litigation was persecuting the deponent to settle his old scores. It is submitted that the petitioner be dealt with severely for having misused and abused the process of law by instituting the present writ petition. The writ petition is also not maintainable as alternative and efficacious remedy is allegedly available to the petitioner under the Gram Panchayat Rules, particularly Rule 34 which empowers the Deputy Commissioner or Sub- Divisional Officer t....
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.... Trust was far away from the village, the Sarpanch of the Gram Panchayat, Bhondsi held discussions with the Trust and urged to construct the civil dispensary building in the Village so that the same would be convenient to the residents of the village, as aforesaid, the gift deed expressly provided that the dispensary should be constructed in the village itself. The value of the land at that time was ₹ 5807/- per acre which means that the total value of the land, gifted to the Trust, was only ₹ 1,92,300/- . After taking over possession of the land, the Trust started working to fulfil the conditions, mentioned in the order, which approved the gift of the land as well as to achieve the other aims and objectives mentioned in the Trust Deed. The foundation stone of dispensary was laid down on 10.6.1985 and the dispensary was constructed as per specifications contained in the order of the Government. After completion of the building for dispensary, it was inaugurated by Shri Devi Lal, the then Chief Minister of Haryana on 6.8.1989. Thereafter the dispensary was handed over to the Government and the same is now managed by the Haryana Government. The Haryana Government is state....
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....rust is claimed to have spent ₹ 42.96 lakhs on the building and machinery of "Stree Niketan Polytechnic". The Trust claims to have paid a stipend salary and wages amounting to ₹ 2,92,826/-, ₹ 4,50,011, ₹ 4,77,182/-, ₹ 2,07,329/- and ₹ 2,12,986/- for the year ending 1993 to 1997 respectively. The Trust received the grant of ₹ 20,38,500/- from NABARD during the year ending 31.3.1993, ₹ 5,37,750/- during the year ending 31.3.1994 and ₹ 3,44,750/- during the year ending 31.3.1995. The Trust also received the donation amounting to ₹ 40,100/-, ₹ 10,68,266/-, ₹ 14,06,648/-, ₹ 5,62,868/- during the year ending 31.3.92 to 31.3.95. The 16 acres of land alleged to have been encroached upon by the Trust is stated to have been transferred by its owners in favour of the Trust. The deponent says "I say that Gram Panchayat has no concern with the said 16 acres of land referred to in the writ petition". Regarding the encroachment upon the BSF land it is stated that since some dispute had been raised, the Trust took up the matter with the Deputy Commissioner, Gurgaon for demarcation of the land so that ....
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....made out in the writ petition. Apart from creating the infrastructure on the land gifted to it, the Respondent Trust is perennially engaged in organising programmes with a view to achieve its objectives mentioned in the Deed of Declaration. The temple, existing on the land, is stated to be an ancient temple not constructed by the Trust. The land gifted to the Trust is being used only for the objectives and activities of the Trust and as per conditions mentioned in the Government order. The Trust is stated to be an income-tax assessee. The sources of funds of the Trust are reflected in its books of accounts which are duly audited. It is claimed that besides the two lands being 33 acres and 19 acres no other land was gifted by the Gram Panchayat to the respondent Trust. The respondent Trust has not misused the land as alleged. The deponent states that he has never used any influence with any authorities for getting any favour for himself but it is the villagers who had strongly felt that by establishing the respondent Trust they would be beneficiaries of the development activities undertaken by it. All actions preceding the transfer of the land by way of gift are claimed to be legal ....
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....sation Act which could not be transferred by any means to any person. Section 2 of the Forest Conservation Act, 1980 is stated to have been violated. Under the said section no State Government can pass any order with respect to any forest land or portion thereof to any other person or authority. No prior approval of the Central Government is stated to have been taken before execution of gift deeds as was statutorily required. Despite the specific condition in the order of approval which the State Government had granted, neither the Gram Panchayat nor the State Government could have transferred the land to respondent No.7 without its prior compliance. The forest Department who was admittedly in possession of the land is not shown to have released the same either in favour of the Gram Panchayat or the State Government or respondent No.7. The transfer of the land, the resolutions passed in relation thereto and orders passed by the State Government sanctioning transfers being against the provisions of law deserve to be quashed. The gifts of the land is also stated to be in violation of the provisions of Section 122 and 123 of the Transfer of Property Act as the respondents have not pla....
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....s and undertaking programmes for rural development and amongst others establishing centres for making provision for drinking water, nutrition and health facilities for women and children education, and to deal with the problems of Adivasis and Harijans. It is claimed that between 1983 to 1990, the Trust has undertaken the task defined by it in lands made available to it in various parts of India. The Trust has undertaken activities on the land which has resulted in arresting the soil erosion, raising of water levels, construction of water reservoirs and roads. In terms of the conditions of the gift, the Trust claimed to have built a village dispensary which has enabled the residents of the area to regularly obtain medical facilities. It is however, mentioned that the dispensary is being run by the State Government. The Trust is also providing advance knowledge of breeding a better breed of cattle. The Trust has been imparting education to the women in the polytechnic named "Stree Niketan". The land gifted to the Trust house buildings which in due course of time are to be used by scholars and persons interested in creating a sense of mutual understanding, communal harmony ....
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....containing old unused tailoring machines etc. The structures did not appear to have been designed for a polytechnic and/or college. The women's training which appears something like a crafts training centre is not recognised from any competent body. Some people who indicated that they were employed by Swatch were present who indicated Swatch had a centre in the structures. Mr.Sood BYK Trust representative indicated that they had obtained support from NABARD for the training and equipment. He said that paid instructors were used to train locals but that they were not paid by cheque. As is evident from the sketch map a major part of the land is vacated - the exact dimensions of which shall become known only after the demarcation/kayami ordered by the Deputy Commissioner on 29.3.2001 (copy of order enclosed as Annexure B) gets completed (this is likely by 4.4.2001 as per the order of Deputy Commissioner, Gurgaon). The State Governments order of 6.6.1990 endorsed on 28.6.1990 clearly states that land will be used for the purpose it has been gifted otherwise Panchayat will take back possession. The land is not being used for either a college or a polytechnic let alone a college an....
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....ther Government functionaries mentioned as Annexure-A accompanied us throughout our visit on this land and on the visit subsequently to the forested land as described later. One of the conditions in the Government order dated 3.3.1984 states that Bharat Yatra Kendra Trust will construct a Civil Dispensary Building consisting of 3 rooms with verandah. No such dispensary has been constructed on this land. Mr.Sood of BYK Trust indicated verbally that, on the the request of the Panchayat, the Trust had instead constructed a civil dispensary and verandah in the main abadi of village of Bhondsi on land of the Panchayat Ghar and separately subsequently showed us a dispensary and verandah in Bhondsi village next to the Panchayat Ghar. This dispensary is being run by Haryana Government. Sh.Sood of BYT said that BYK Trust had handed it over after construction to Haryana Government and returned ₹ 0.50 lacs meant for running the dispensary to the Government. The District Development and Panchayat Officer Gurgaon mentioned that BYT had received Rs..5 lacs plus ₹ 1 lacs plus ₹ 0.50 lacs from CM Relief Fund for the dispensary and that he believed ₹ 0.50 lacs had been retu....
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....rwise it would taken possession back. Thus the State Government could be advised that in addition to determining whether any condition had been breached by the fact that no civil dispensary of 3 rooms with verandah has been constructed on the land gifted by the Gram panchayat, they could also review whether the structures presently constructed by BYK Trust are for the purposes mentioned in the constitution or not. In fact though the show cause notice issued by State Government on 26.7.2000 and cited earlier by us only refers to the land as per Government Order dated 28.6.1990, the Deputy Commissioner Gurgaon had on 210.7.2000 written Special Secretary to the Government of Haryana Development and Panchayat Department that for both the lands vide Government Order of 22.3.1984 and vide Government Order dated 28.6.1990 the conditions in the Government orders had not been fully complied with. The Gram Panchayat had also passed a resolution No.53 dated 8-11.2.1990 allowing BYK to plant trees on land measuring 500 acres as per certain terms and conditions. Apparently this resolution was never referred to the State Government and ownership of the land was not transferred to BYK Trust. I....
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....rther found: "In the forest area which has been enclosed by the trust 3 rooms have been constructed at different places which are reportedly used by the watch and ward staff of Bharat Yatra Kendra. Details of the 388 acres 3 canals and 12 marlas are at page 65 to 69 of Annexure E only. Land for Forest Area enclosed with the compound of land for dispensary From the Sajra and record made available to us it is apparent that at two different places a total of land slightly more than 3 acres which is part of the forest land measuring 500 acres as per the resolution of 1990 has been enclosed within the Trust compound alongwith the land given for the construction of dispensary. Some of this land is under buildings some under roads, some has been made part of the lake and some has been used a spark land. Details of this area are at page 77 of report Field Kanoongo, Sohna (Annexure E) read with pages 55 to 59 pertaining to Khasra Numbers 130 and 130. Gair Mumkin Nallah land There is also a nallah on the Khasra No.279. Out of area of 9 acres 3 kanals 7 marlas of this khasra which is entered as Gairmumkin Nallah in the record and therefore which is panchayat land, 8 acres 2 marlas of....
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....learned counsel appearing for the State of Haryana, tried to justify the action of the State Government. He argued that the land in controversy had been declared as forest for a limited period and in the absence of extension of period it ceased to be the forest land. Mr.Mahabir Singh, learned counsel who appeared for the Gram Panchayat submitted that 500 acres of land, after afforestation, has been returned to the State Government as per direction of the court. He has submitted that the aforesaid land be handed over to Gram Panchayat. The learned counsel has also justified the action of the Gram Panchayat in making the gifts of the lands to the respondent No.7. Mr.Kapil Sibal, learned Senior Advocate, who appeared on behalf of the respondent No.7 has submitted that mere violation of the terms of the approval would not render the transaction as illegal or void unless the initial transfer itself is proved to be against the provisions of law. It is contended that if there is any violation of the terms of the grant, the appropriate authorities are at liberty to initiate action against his client. Taking us through various documents, the learned senior advocate has pointed out that al....
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....e Government. iv) Land measuring about 17 acres resolved to be transferred to the Trust vide Gram Panchayat Resolution dated 11.12.1990. The aforesaid resolution never reached the State Government and thus no approval was granted. v) Land measuring 8 acres 3 kanals and 7 marlas belonging to the Border Security Force allegedly unauthorisedly encroached upon by the Trust. When this petition came up for hearing on 24th July, 2001, the learned counsel appearing for the respondent No.7 stated that with regard to the land measuring 500 acres given to the Trust for plantation of trees the Trust does not claim any interest or possession over it. He further stated that respondent No.7 was not in possession of the land and the land belonged to the Gram Panchayat. Considering the aforesaid statement, learned counsel appearing for the State of Haryana was directed to take possession of the land immediately and put proper guards and security so that the trees which were stated to have been planted over the said land are not damaged or destroyed. Pending further orders, the State Government was ordered not to allot the aforesaid land to anyone except with the prior permission of the Central....
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.... acres of land on the Aravali Hills, which can be confirmed from the revenue documents placed on record itself. The other 7 acres are still with the Trust as it falls under small pockets within the other lands gifted to the Trust. In case the approval is not given by the State Government, the Village Panchayat can take back the possession of the said land." From the inconsistent pleas raised and in the light of the latest affidavit filed on behalf of the respondent No.7, it is held that the Trust has no right or interest in the said land measuring about 17 acres and is liable to return it to the Gram Panchayat in presence of the Deputy Commissioner of the area. In this view of the matter, no further directions are required to be issued so far as land mentioned at Item No.(iv) is concerned. The limited controversy now relates to the land mentioned at Item Nos.(i) & (ii). As the relevant facts are not seriously disputed, it is necessary to have a glimpse of the provisions of law applicable in the case. The Act was enacted to consolidate and amend the law regulating the rights in shamlat deh and abadi deh in the then State of Punjab which, after the formation of new State of H....
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....ert in the person or persons to whom the land so excluded has been allotted or otherwise transferred by sale or by any other manner whatsoever subject to various conditions mentioned in the amended section. For the purposes of present controversy the amended provisions are, however, not relevant. Section 4 of the Act deals with the vesting of rights in Panchayat and non-proprietors. Under Section 5 all lands vested or deemed to have been vested in a Panchayat under the Act shall be utilised or disposed of by the Panchayat for the benefit of the inhabitant of the village concerned in the manner prescribed. Where two or more villages have a common Panchyata, the shamlat deh of each village shall be utilised and disposed of by the Panchayat for the benefit of the inhabitants of that village. Provided further that where the area of the land in shamlat deh in any village was vested or deemed to have been vested in a Panchayat is in excess of twenty five percent of the total area of that village (excluding abadi deh) then twenty five percent of such total area shall be left to the Panchayat and out of the remaining area of shamlat deh, an area upto the extent of twenty five percent of s....
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.... Under Sub-Rule (2) of Rule 3, the Panchayat may make use of the land in shamlat deh vested in it under the Act either itself or through another, for any one or more of the purposes specified therein including the purposes of school buildings, school library or any other structure for educational purposes, maternity or first aid centres and hospital and dispensary. Rule 6, at the relevant time, provided that all leases of lands in shamlat deh shall be auctioned after making publicity in the manner laid down in Sub-Rule (10). A detailed procedure regarding auction, admittedly not followed in the present case, has been specified in the said Rule. Rule 10 provides that the Panchayat may allow the use of land in shamlat deh, vested in it free of charge to the inhabitants of the village for the purposes of steeping of hemp or any other plant in ponds, residential purposes of members of the Scheduled Castes or Backward Classes or dependents of the defence personnel killed in any war after the independence of India or landless labourers or tenants in genuine cases on ground of poverty and any other suitable common purpose. Rule 13 provides that the Panchayat may, with the previous approva....
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....f the inhabitants of the village concerned. Such a gift can be made only with the previous approval of the Government. Rule 13 apparently appears to be beyond the scope of Rule making powers of the State Government inasmuch as the right of the Panchayat to gift the land is circumscribed by the provisions of Sections 5A and 5B of the Act. Clause (ff) of sub-section (2) of Section 15 authorises the State Government to frame Rules regarding the terms and conditions on which the land shamlat deh may be gifted to the members of the Scheduled Caste and Backward Classes. Section 15 does not authorise the State Government to make Rules with respect to the gift of the land to persons other than those contemplated under Section 5A and 5B of the Act. Any rule which is contrary to the provisions of the Act cannot be given effect to or made the basis of gifting the property, vesting in the Gram Panchayat. It cannot be disputed that the gifts proposed by the Panchayat, approved by the State Government and ultimately made by the Gram Panchayat are in violation of provisions of Section 5A and 5B of the Act read with Rule 13A of the Rules. As the gifts have been made in favour of persons other than....
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....he following conditions: "1. Bharat Yatra Trust will construct a Civil Dispensary Building consisting of 3 rooms with verandah. 2. Non technical hands will be appointed from the village residents. 3. One representative from the village will be taken on Trust Body. 4. The land to be donated will not be sold or transferred any other body. 5. The land will be used for the purpose mentioned in the construction otherwise the Panchayat will take possession back. 6. The land will be got released from the Forest Deptt., through proper channel." Similarly, the approval for gift of shamlat land measuring 150 kanals 19 marlas out of khasra numbers specified in the order was accorded for the setting up of a college and polytechnic as resolved by the Gram Panchayat subject to the same conditions. The making of the gift depended upon the compliance of the conditions, specified in the aforesaid two Government orders. Concededly the condition No.6 for getting the land released from the Forest Department through proper channel was never complied with before the execution and registration of Gift Deeds. It is conceded before us that the land, the subject matter of the gift has....
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....ders the gift deed void not affecting the rights of the inhabitants of the Gram Panchayat. Rule 13 itself mandates that the Government may grant approval for gifting the shamlat land vesting in the Panchayat for the purpose of "hospital, dispensary or educational or charitable institutions or for such purpose as may be approved by the Government to be for the benefit of the inhabitants of village concerned". Despite adopting a casual approach, the State Government had specified one of the purposes mentioned in Sub-Rule (1) of Rule 13 for making the gift of the Gram Panchayat which was violated by the Gram Panchayat while executing the deed of gift in favour of respondent No.7. It has been pointed out on behalf of respondent No.7 that as a dispensary has been constructed in the village though not in the land, the condition of the Government order stood complied with. We do not agree with such a submission. If the construction of the dispensary in the land gifted to the respondent No.7 was felt to be inconvenient for the inhabitants of the village, as argued before us, the Gram Panchayat and the respondent-Trust were under a legal obligation to approach the State Governmen....
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....in favour of the respondent No.7 was initiated and completed. We have reasons to believe that the land was under the occupation of the Forest Department because while granting its approval, the State Government has specifically mentioned in Condition No.6 of its order that the land shall be got released from the Forest Department through proper channel. If the land was not in occupation of the Forest Department, there was no occasion for the State Government to mention the aforesaid condition in its order. Once the land was found to have been used for the purposes of forest, the provisions of the Indian Forest Act and the Forest Conservation Act would be attracted, putting restrictions on de-reservation of the forest or use of the land for non forest purposes. The Forest Conservation Act, 1980 has been enacted with the object of preventing deforestation. The provisions of the aforesaid Act are applicable to all forests. It is true that "forest" has not been defined under the Act but this Court in T.N. Godavarman Thirumulkpad vs. Union of India & Ors. [1997 (2) SCC 267] has held that the word "forest" must be understood according to its dictionary meaning. It wo....
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....se of the forest. In the affidavit filed on behalf of the respondents it is specifically stated: "It is submitted that the State Government had only given approval to the Gram Panchayat for gifting the land. However, while permitting the Gram Panchayat to gift the land by way of abundant precaution, the State Government had imposed the condition to the effect that the land in question be got released from the Forests Department in accordance with law. The permission given by State Government did not mean at all that the donee or the doner was authorised in any way to divert the user of land in question." The contradictory pleas taken and stands adopted by the respondent-State strengthens the argument of the petitioner that the transaction of making the gifts in favour of the respondent No.7 is actuated by considerations other than those specified under the Act and the Rules made thereunder. Learned counsel, appearing for the respondent No.7, has submitted that as the land is being utilised for the purposes of the Trust and Shri Chander Shekhar is not taking any advantage from the said land, the action initiated by way of public interest litigation is not sustainable. ....
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....y for the upliftment of the poor and the oppressed. The purpose of the respondent-Trust may be laudable but under the cloak of those purposes the property of the people cannot be permitted to be utilised for the aforesaid objectives, particularly when the law mandates the utilisation of the transferred property in a specified manner and for the benefit of the inhabits of the area, the poor and oppressed and the scheduled castes and backward classes. We are not impressed with any of the pleas raised on behalf of the respondent No.7 that the land was acquired bonafide for the proclaimed object of upliftment of the people of this country in general and of the area in particular. We fail to understand as to how the country can be uplifted by personal adventures of constituting trusts and acquiring hundreds of acres of lands for the purposes of that Trust. It is nothing except seeking personal glorification of the persons concerned. It may not be termed as co-incidence that the respondent No.7 is shown to be in possession of 500 acres of land without any approval, order or deed or found in possession of land belonging to BSF for a number of years. Failure on the part of the respondents....
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....stances this writ petition is allowed by making the Rule absolute with the issuance of following directions: i) Consequent upon quashing of Gram Panchayat Resolutions dated 22.10.1983 and 18.10.1997, the Government Orders dated 3.3.84 and 6.6.90 and the gift deeds executed by Gram Panchayat in favour of the respondent-Trust, the possession of the land, the subject matter of this litigation shall be handed over by the respondent No.7, its Chairman, Directors, employees, representatives and agents, initially to the State Government who shall thereafter deliver it to the Gram Panchayat with specific directions for utilisation of the land in the manner prescribed. ii) The respondent-State shall constitute a committee within 15 days comprising of the Chief Secretary, The Deputy Commissioner, Gurgaon, the concerned Block Development and Panchayat Officer, the representative of the Ministry of Environment, Government of India, a representative of the Ministry of Home Affairs(Central Government) and the President of the District Bar Association, Gurgaon and the Sarpanch of Panchayat, Bhondsi, to take possession of the land within two months from the date of its constitution and submit ....