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2017 DIGILAW 130 (CAL)

Md. Daniyal Kaur v. State of West Bengal

2017-01-30

MIR DARA SHEKO, RAKESH TIWARI

body2017
JUDGMENT : Mir Dara Sheko, J. 1. The appeal is preferred by the appellants/writ petitioners assailing the judgment dated August 4, 2011 of the Single Bench delivered in W.P. No. 6254(W) of 2011. 2. The case of the appellants is that Hazi Abdus Samad, Hazi Tahir Hossain and Kazi Rijwan of village Chandergaon within police station Karandighi, District Uttar Dinajpur pursuant to the resolution dated 28.12.2000 donated 48 decimals of L.R. Plot Nos. 421 and 478 appertained to Khatian Nos. 333, 254 and 113 of Mouja Chandergaon in the year 2000 for smooth running of Chandergaon Faizane Mustafa Junior High Madras in the village. 3. Pursuant to further resolution dated 24.01.2003 in village for benefit of the students an organizing Committee was formed for upkeeping and management of said Chandergaon Faizane Mustafa Junior High Madrasah. 4. It is contended that the Junior High Madrasah, running on the said plots having its own bank account with BANGIYA GRAMIN BIKASH BANK Rasokhaya Branch, was recognized as Madrasah Siksha Kendra, shortly known as M.S.K. The aforesaid bank account was "initially" operated by "the Managing Committee of Chandergaon Faizane Junior Madrasah". It was later on transferred in the name of "Chandergaon Madrasah Siksha Kendra." 5. It is further contended that pursuant to the Government circular No. 99 MD dated January 21, 2008, the organizing committee of Chandergaon Faizane Junior Madrasah applied before the Directorate of Madrasah Education, Salt Lake, Kolkata for approval/affiliation/recognition with a view to obtaining financial, academic and other supports of the Government within the scheme of M.S.K. Accordingly inspection was held on June 3, 2009 and on the basis of report of the inspection team and further report of District Level Inspection Team of the Minority Affairs, shortly known as "DLIT" approval was granted. 6. Cause of action of the appellant arose while one Md. Dabiruddin Private respondent No. 4 as the Secretary of the Chandergaon Madrasah Faiza-Ne-Mustafa, run by one society, filed W.P. No. 9986(w) of 2010 claiming that the Madrasah Dar-Ul-Ulum Faizane Mostafa was the only Madrasah of the village, and not of the appellants. Therefore, approval of the appellants' Madrasah in the name of Chandergaon Faizane Mustafa Junior High Madrasah was claimed to be rejected since its approval on March 19th, 2010 in the name of Chandergaon Faizane Mustafa Junior High Madrasah was accorded by suppressing truth and without fulfilling the criterias of the scheme. 7. Therefore, approval of the appellants' Madrasah in the name of Chandergaon Faizane Mustafa Junior High Madrasah was claimed to be rejected since its approval on March 19th, 2010 in the name of Chandergaon Faizane Mustafa Junior High Madrasah was accorded by suppressing truth and without fulfilling the criterias of the scheme. 7. Grievance of the appellants was that on the basis of said complaint of respondent No. 4 Md. Dabiruddin and pursuant to direction of the Court in W.P. No. 9986 (w) of 2010 the Director of Madrasah Education, West Bengal though revisited the matter, but ignoring earlier inspection reports, resolutions of the organizers, donation of lands by the Hazis of the locality and despite fulfillment of criterias for upgradation of the Madrasah in the locality run by the appellants, wrongly held on February 9, 2011, "conversion of the Madrasah to a M.S.K. (Madrasah Siksha Kendra) made at the instance of the petitioner was illegal because according to the Director of Madrasah Education Papers shown by the petitioner had not belonged to him, hence the approval of the said Madrasah Siksha Kendra of the petitioners would expire after two years automatically." 8. Challenging said order dated February 9, 2011 as illegal and as an outcome of non-application of mind the appellants/writ petitioners prayed for quashing of said order of the Director of Madrasah Education, West Bengal and for granting further extension of the approval and for other necessary orders in terms of the prayers made in the writ petition. 9. Mr. Milan Bhattacharjee relying upon inspection reports dated June 3, 2010, and December 31, 2010 argued, Learned Judge failed to consider that respondent No. 2 in the name of consideration of the complaints of respondent No. 4 acted as an appellate authority in not extending the order of approval in favour of the appellants' Madrasah, although there was never any illegality or practice of fraud committed in obtaining the approval submitted, rather approval was granted by the authority after being satisfied about fulfillment of the conditions of conversion of Junior High Madrasah, and thereby prayed to set aside the impugned judgment and to allow the appeal on the grounds as set out in the memorandum of appeal. 10. Mr. Mohan Kr. Sanyal learned Advocate for the State argued that the appellants' alleged Madrasah neither had separate bank account nor land of their own while they had applied for approval. 10. Mr. Mohan Kr. Sanyal learned Advocate for the State argued that the appellants' alleged Madrasah neither had separate bank account nor land of their own while they had applied for approval. Since the appellants had obtained approval for two years on incorrect facts by practicing fraud, by using registration number of the Madrasah run by the respondent No. 4, and since tenure of said approval though on wrong facts already expired, question of further extension would not arise to accord any financial support from the Government. Learned Advocate for the State thus supported the judgment under challenge and submitted to dismiss the appeal. 11. Mr. Sumit Roy Learned Advocate for private respondent No. 4 relying upon affidavit-in-opposition dated February 7, 2012 adopted the arguments of the State. 12. For better appraisal of the lis and for consideration of the factual aspects connected therein, as available from the pleadings, should be quoted. Relevant portion from paragraph 13 is accordingly set out:- "Admittedly in the Village-Chandergaon there is a Moktab (Religious Institution) run by the Respondent No. 4 on 22 decimals of land under Plot No. 478 (L.R) in L.R. Khatian No. 254 and the said land was donated by Md. Abdus Sammad in the year 2004 in the name of Idgah Daru Uloom Faiza-ne-Mustafa and admittedly as found by the District Officer, Minority Affairs during the inquiry as well as during the hearing by the Director of Madrasah Education that Md. Dabiruddin, respondent No. 4 had not applied for conversion of his Institution as M.S. K. (Madrasah Siksha Kendra). On the other hand, the Jr. High Madrasah of the petitioner was converted to a Madrasah Siksha Kendra (M.S.K.) when all conditions of conversion were fulfilled namely it had separate existence on separate land, it had separate Bank Account, it had separate structure with the student and staff........" 13. On the other hand, the Jr. High Madrasah of the petitioner was converted to a Madrasah Siksha Kendra (M.S.K.) when all conditions of conversion were fulfilled namely it had separate existence on separate land, it had separate Bank Account, it had separate structure with the student and staff........" 13. The private respondent no 4 in his affidavit-in-opposition before the writ court sworn on May, 20, 2011 countered the contention of the appellants/writ petitioners in paragraph 18 which is also set out:- "I further deny that the conversion of the Junior High Madrasah being M.S.K. quite legal and there is no unfair means and/or any malafide." Further, in the affidavit-in-opposition dated February 7, 2012, in connection with this appeal, he reiterated by contending at page 5, "I say by connivance with the authority concerned the alleged Madrasah was enjoying some advantage inspite of the order of Director of Madrasah", where the conversion was withdrawn after 30.04.2011. 14. From the above averments, at least it appears as an admitted position that the respondent No. 4 and the appellants had two different Madrasahs, and it were the appellants who applied for conversion of their alleged Madrasah to bring the same within the scheme of Madrasah Siksha Karmasuchi under the programme of Madrasah Siksha Kendra. Admittedly the respondent No. 4 did not apply. 15. Now revisiting the relevant facts, available from record we find that Abdus Samad executed a registered deed of Hebanama on June 18, 2004 in favour of the Secretary of Iddgah & Madrasah DARUL ULUM FAIZANE MOSTAFA transferring 22 decimals of L.R. Plot No. 254 of Chandergaon Mouja for the purpose of organizing the Madrasah in the aforesaid name. Said Madrasah was registered under societies Registration Act and its registration number was S/92/14786. The Land covered by said Hebanama was delivered in favour of the Secretary of the said Madrasah, namely, DARUL ULUM FAIZANE MOSTAFA which was functional at least from 18.06.2004, if not since earlier. 16. Whereas, we find that aforesaid Hazi Abdus Samad, along with two others, namely, Hazi Tahir Hossain and Kazi Rijwan jointly executed and registered one deed of gift on March 19, 2009 in favour of Chandergaon FAIZANE MUSTAFA JUNIOR HIGH MADRASAH represented by the appellant Mahammad Daniyal transferring 16 decimals of L.R. plot No. 421 and 32 decimals of L.R. plot No. 478 of mouja Chandergaon for the purpose residential accommodation of its students. The text of the deed appended at page 29 of the paper book is silent about institutional and functional history of alleged Junior High Madrasah prior to March 19, 2009. 17. From the guidelines of the M.S.K. (Supra) annexed as P/4 with the writ petition it is evident that the Government issued its order vide 99-MD dated January 21, 2008 to approve 400 willing and eligible institutions as Madrasah Shiksha Kendras for bringing within academic, financial and other supports to improve quality of the institutions subject to fulfilling the conditions, which are set out hereunder:- "(i) The Madrasah has been running continuously for at least 3 years. Preference will be given to those institutions established within 31.12.2000 and running for longer period. (ii) The Madrasah has to be situated at a noise and pollution free atmosphere. (iii) The Madrasah should have enrolment, at least 40 and 80 for 2-class and 4-class Jr. Madrash standard respectively. (iv) The Madrasah should have necessary building/spacious class-room per unit and other infrastructure. (v) The Madrasah should have sufficient sitting arrangement. (vi) The Madrasah should have drinking water facility, girls' common room (in case of co-educational institution), good sanitary arrangement. (vii) The Madrasah should have followed curriculum and syllabi of equivalent classes of Jr./High/Higher Secondary Madrasahs prescribed by West Bengal Board of Madrasah Education. (viii) The Madrasah should have staff pattern with duly qualified teachers and non-teaching staff as may be prescribed. (ix) The Madrasah must have a Bank account having at least a sum of Rs. 5000/- to the credit or to be credited. The same should be changed or a new account will have to be opened in favour of the Madrasah Shiksha Kendra after approval. The Government may relax the conditions, if necessary, in special circumstances to reach the target." 18. It is also mentioned in that circular, "all willing applicant, unrecognized, existing organized Madrasahs shall come under the purview for consideration. Preference will be given to those Madrasahs established within 31.12.2000". It has also been made clear, "mere fulfillment of conditions does not entitle an applicant Madrasah for approval or assistance. The decision of the State Government shall be final." 19. From the inspection form submitted by the appellant it revealed that in the capacity of Secretary of the said Junior High Madrasah Md. It has also been made clear, "mere fulfillment of conditions does not entitle an applicant Madrasah for approval or assistance. The decision of the State Government shall be final." 19. From the inspection form submitted by the appellant it revealed that in the capacity of Secretary of the said Junior High Madrasah Md. Daniyal Kaur had used Registration No. with date, viz., S/IL/14786 of 2002-2003, claiming such "CHANDARGAON FAIZANE MUSTAFA JR. HIGH MADRASAH" to have been established in "2000-2001". 20. To get the alleged text of the inspection form matched with the case of the appellants they relied upon two resolutions dated 28.12.2000 and 24.01.2003 allegedly adopted at the village meeting. In the first one Abdus Samad, Tahir Hossain and Kazi Rijwan allegedly promised to gift 48 decimals of land from L.R. plot Nos. 254, 333 & 113 and accordingly in said meeting it was allegedly decided to begin the works of the proposed Madrasah, and in the later resolution one working committee was allegedly constituted for all round development of the alleged Madrasah of which the appellant No. 1 was made its Secretary. 21. Therefore, even if the resolution dated 28.12.2000 bearing alleged promise to donate land for the purpose of alleged Junior High Madrasah be assumed as true, sacrosanct or natural, it remained obscure as to why till before alleged subsequent resolution dated 24.01.2003 for constitution of the Managing Committee of the alleged Madrasah, donation of land by any legal document of transfer by the proposed donors was not brought into existence? The text of the alleged resolution dated 24.01.2003 remained absolutely silent about any such document effecting donation of the purported land for the purpose of the alleged Madrasah of the appellants. 22. From the Notification dated 21.01.2008 (Supra) it is mentioned that guidelines are to be followed to get assistance under the programme from the State Government. From its clause(IX) it appears that one of the fulfilling conditions is that the Madrasah intending to come under the scheme "must have a Bank account having at least a sum of Rs. 5,000/- to the credit or to be credited", which should have to be changed or a new account will have to be converted in favour of "Madrasah siksha Kendra". 23. We find from the application form that bank account number was mentioned as "1824/120/08 which was opened by the appellant on November 4, 2008". 5,000/- to the credit or to be credited", which should have to be changed or a new account will have to be converted in favour of "Madrasah siksha Kendra". 23. We find from the application form that bank account number was mentioned as "1824/120/08 which was opened by the appellant on November 4, 2008". The document appended in the paper Book at page 44, shows bank account number "5818" standing in the name of Chandergaon Faizane Mustafa Junior High School, but number of its Ledger Page was kept blank. Therefore, appearance of date "04.11.2008" on it indicates that said account in the name of "Chandergaon Faizane Mustafa Junior High Madrasah" was opened only on the same day i.e. November 4, 2008, and, not before that. There is also neither any averment nor any document produced by the appellants to satisfy the criteria in obtaining approval that they had been maintaining bank account in the name of "Chandergaon Faizane Mustafa Junior High Madrasah". Meaning thereby, the appellants' Madrasah had no bank account in its name at least before three years preceding to submission of the form for inspection. On the contrary, we noticed that the appellants/writ petitioners in paragraph 4 of their writ petition could not mention the number of bank account, since the portion of sentence where the number of bank account was supposed to be put in, was left blank, which was also pointed out by the respondent No. 4 in his affidavit-in-opposition, exercised before writ Court. 24. On the other hand, we noticed that the appellants claimed their Madrasah to have been established in 2000 - 2001. But it is evident from records that prior to 19th March, 2009 the appellants' alleged Madrasah had no land of its own or bank account for at least before three years preceding to submission of application to come under the scheme. Rather, Madrasah DAR-UL-ULUM FAIZANE MUSTAFA had its own land w.e.f. 18.06.2004 and said Madrasah also was registered under West Bengal Societies Registration Act, 1961 having its no-S/IL/14786 of 2002-2003. It is pertinent to mention that reference of above number "14786" also appears in deed dated 19.06.2004 executed by Abdus Samad in favour of the Madrasah of respondent No. 4. 25. Rather, Madrasah DAR-UL-ULUM FAIZANE MUSTAFA had its own land w.e.f. 18.06.2004 and said Madrasah also was registered under West Bengal Societies Registration Act, 1961 having its no-S/IL/14786 of 2002-2003. It is pertinent to mention that reference of above number "14786" also appears in deed dated 19.06.2004 executed by Abdus Samad in favour of the Madrasah of respondent No. 4. 25. Further, from the application form, it appears that though their alleged Madrasah was never connected with the registration number of Madrasah DAR-UL-ULUM FAIZANE MUSTAFA, with which respondent No. 4 was/is connected, the appellants to fulfill their planned intention had used said registration number to give a show as if Chandergaon Faizane Mustafa Junior Madrasah was already a registered body under Societies Registration Act since long before. Therefore, it is crystal clear that in the aforesaid Government order dated 21.01.2008 since it was mentioned, "preference will be given to those Madrasahs established within 31.12.2000", the appellants using registration number of the Chandergaon FAIZA-NE-MUSTAFA desperately had made attempt to fill up the application form mentioning its date of establishment as "2000-2001" although it had neither bank account nor land till before 2008 and 2009 respectively and such effort rightly was held to have been exercised on the basis of false and incorrect statements. 26. There can be no doubt that benefit of any scheme if to be achieved by any institution, it had to be fulfilled all criterias prescribed in said scheme, otherwise not. Question of sympathy or emotion can not substitute to displace the defaults, had there been, if any. Under the equitable principle, one who seeks equity he must do equity by coming with clean hands. In the form, vide Page 71 of the paper book the appellant before putting signature with seal gave declaration, "(i) All the particulars furnished above are true and correct. (ii) If any discrepancy or anything contrary to any statement given above is found, then our application shall be liable to be summarily rejected". 27. To consider the lis as to whether the approval of the impugned Madrasah under the scheme of M.S.K. which was withdrawn subsequently would be quashed for re-imposing the approval, we have revisited the available materials on record on our own and laid down our observations. 27. To consider the lis as to whether the approval of the impugned Madrasah under the scheme of M.S.K. which was withdrawn subsequently would be quashed for re-imposing the approval, we have revisited the available materials on record on our own and laid down our observations. Now turning to the Judgment under challenge we find that Learned Judge on scrutiny of all materials correctly observed as follows:- "(a) The condition of establishing of Madrasah and remaining functional at least for three years before the cut off date i.e. 31st December, 2008 to come within the scheme of M.S.K. could not be satisfied by the appellant as prior to 2009 there was no infrastructure. (b) It was detected by the Director of Education of Madrasah that appellant No. 1 Md. Daniyal committed fraud upon the authority by mentioning registration number of the society running the Madrasah namely DARUL ULOOM FAIZANE MUSTAFA and by claiming its land and infrastructure as their own. (c) The appellants' Madrasah thus misled the authority by giving false and incorrect date for intended conversion only with a view to come within the scheme of M.S.K. (Supra)." 28. In view of above the so called resolutions dated 28.12.2000(Supra) and 24.01.2003(Supra), taken in the village Chandergaon by a group of people of a community and obviously not by all the villagers including private respondent No. 4 have lost its genuinity and sanctity for want of in between lawful transfer deed donating land in favour of the appellants' Madrasah for making it functional, since 2000/2001 in terms of the resolution. Rather the facts, as established have given adverse inference under Section 114(g) of the Evidence Act against those resolutions to caption those as fabricated documents sometimes at any subsequent stage to fit in their unsuccessful planned intention in the matter of achieving financial grant etc. from the Government in favour of the alleged Junior High Madrasah. Rather the facts, as established have given adverse inference under Section 114(g) of the Evidence Act against those resolutions to caption those as fabricated documents sometimes at any subsequent stage to fit in their unsuccessful planned intention in the matter of achieving financial grant etc. from the Government in favour of the alleged Junior High Madrasah. However, at last, while in the guidelines as per Notification dated 21.01.2008, "The Decision of the State Government shall be final", and when the Director of Education of Madrasah, during relooking the matter pursuant to direction of the High Court based on complaint of respondent No. 4, found that the approval, given earlier on representation of the facts made by appellants, on untrue and incorrect information, which were in violation of terms of the scheme of M.S.K. the decision of the authority would remain as final. Therefore, the question of approval or extension of approval by its re-imposition does no more arise. When the declarations in the form were based on untrue and incorrect information the appellants are bound to suffer from its consequences as it was so undertaken. Thus, in terms of the guidelines (Supra), the decision of the Government becomes final and binding, since there was no illegality in the matter of fact finding process, while under order of the High Court in W.P. No. 9986 (W) of 2010 the matter was correctly relooked. Therefore, the reasons of no more extending benefit of the scheme of M.S.K., which already have expired, became binding upon the appellants. 29. We, therefore, conclude that the judgment of Learned Single Bench dated August 4th, 2011, delivered in W.P. No. 6254 (W) of 2011 dismissing the writ petition of the appellants does not suffer from any illegality and therefore, requires no interference. 30. The appeal is accordingly dismissed. No order of costs. 31. Urgent Xerox copy be supplied to the parties if applied for.