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2022 DIGILAW 2140 (RAJ)

Maabharati Shiksha Samiti v. State Of Rajasthan

2022-07-28

ASHOK KUMAR GAUR

body2022
JUDGMENT Ashok Kumar Gaur, J. - The present writ petition has been filed by the petitioner-Society challenging the order dated 13.12.2000 issued by the Secretary, Urban Improvement Trust, Kota and the minutes of the 149th meeting dated 18.11.2000 of the Urban Improvement Trust, Kota (hereinafter shall be referred to as "the Trust"). 2. The brief relevant facts of the case are that the petitioner-Society started Primary School in the year 1982, which was upgraded to Senior Secondary level in the year 1992-93, known as "Maabharati Vidhya Bhawan". The petitioner-Society in the year 1998 established a separate girls school, known as Maabharati Girls Secondary School and also established a college of graduation level in the year 1998, known as "Maabharati Girls College". 3. The petitioner-Society in the year 1991 had applied for allotment of land on concessional rate from the Trust and about 4,300 Sq.Mtrs. of land was allotted to the petitioner-Society in Mahaveer Nagar-II, Kota for Maabharati Vidhya Bhawan. Since the petitioner-Society had established a separate Girls Secondary School in the year 1998 as well as a Girls College of graduation level, the petitioner-Society was not having adequate land, applied for allotment of approximate 40,000 Sq.Mtrs. of land. 4. The petitioner-Society has pleaded in the writ petition that the case of the petitioner-Society for allotment of land for above mentioned two institutions was put in the meeting of Land Allotment Sub Committee held on 21.04.1998 and Item No. 28 of the minutes of the meeting of the said Committee, dealt with the allotment matter of land to the petitioner-Society and it was decided that the land could be allotted to the petitioner-Society for educational institutions in Arogya Nagar Scheme in Kota and the land use was also required to be changed from commercial to educational purposes. 5. The petitioner-Society has pleaded that the matter for allotment of land to the petitioner-Society was placed in the 138th meeting of the Trust held on 24.04.1998 and it was found that the petitioner-Society was entitled for allotment of 39,900 Sq.Mtrs. of land (by mistake it was typed out as 3,99,000 Sq.Mtrs.) and the land was to be allotted at 50% of the reserve price and further decision was taken to change the land use from commercial to educational purposes. 6. of land (by mistake it was typed out as 3,99,000 Sq.Mtrs.) and the land was to be allotted at 50% of the reserve price and further decision was taken to change the land use from commercial to educational purposes. 6. The petitioner-Society has further pleaded that decision was also taken to issue demand notice to the petitioner-Society and only after depositing the amount @ Rs. 450/- per Sq.Mtr., change in land use was to be made. The petitioner-Society has further pleaded that they waited for sufficient time but no letter was received by them and as such, request was made to the UIT authorities to issue the letter for depositing the requisite amount. 7. The petitioner-Society has pleaded that they were shocked to receive the order dated 13.12.2000 sent by the Secretary, UIT, Kota mentioning therein that the Divisional Commissioner, Kota had made enquiry in the matter of allotment of land to the petitioner-Society and had written a letter dated 26.09.2000 to the Trust for cancellation of allotment and to inform the State Government in 149th meeting of Trust held on 18.11.2000. It was also communicated that the earlier decision for allotment of land was quashed and the security money of Rs. 5,000/-, deposited by the petitioner-Society, was ordered to be refunded. 8. The petitioner-Society is said to have made inquiries from the respondents and learnt that cancellation was done as per the enquiry report of the Divisional Commissioner and without affording any opportunity of hearing & without disclosing any reason, the earlier decision dated 24.04.1998 of the Trust was reversed, depriving the petitioner-Society to get the allotment of land. 9. The petitioner-Society has pleaded that it also obtained minutes of meeting of the Trust held on 18.11.2000 and found that only on the basis of directions given by the Divisional Commissioner, the UIT authorities, without applying their independent mind, yielded to the decision of the Divisional Commissioner and as such, the minutes of the meeting held on 18.11.2000 have been put to challenge by the petitioner-Society in the writ petition. 10. 10. The respondent-Trust has filed reply to the writ petition and pleaded that the application for allotment of land, filed by the petitioner-Society, was in vague manner and even the petitioner-Society had not specified the size of the plot required and after giving the initial application for allotment of land dated 30.10.1997, the petitioner-Society moved another application along with a map of Arogya Nagar Scheme, Kota. 11. The respondent-Trust has averred in the reply that the petitioner-Society did not enclose the necessary certificates and details and the Trust did not have power to change the land use as only the State Government could change the land use from commercial to educational and as such, the matter of the petitioner-Society was referred to the Allotment Sub-Committee, in pursuance of the directions, in 137th meeting held on 25.11.1997. The Allotment Sub-Committee was only a recommending body and was not empowered to take a firm and final decision on the subject of allotment of land and as such, the Allotment Sub-Committee had noted that the land was earmarked for commercial use and there was a necessity to get it converted for educational purposes before the allotment could be made. 12. The respondent-Trust has taken a specific stand that the minutes of 138th meeting held on 24.04.1998 did not reflect the proceedings correctly and there was no formal decision with regard to allotment of land to the petitioner-Society and as such, the Chairman of the Trust stayed the proceedings of the 138th meeting and stay was further confirmed by the State on 11.09.1998. The respondent-Trust has taken a specific plea that at no point of time, final decision was taken for allotment of land to the petitioner-Society. 13. The respondent-Trust has pleaded that stay of the proceedings, in pursuance of the 138th meeting, was confirmed in the 139th meeting and as such no final decision for allotment of piece of land had taken place and a mere observation by the Allotment Sub-Committee could not have crystallized in legally enforceable right in favour of the petitioner-Society. 14. 13. The respondent-Trust has pleaded that stay of the proceedings, in pursuance of the 138th meeting, was confirmed in the 139th meeting and as such no final decision for allotment of piece of land had taken place and a mere observation by the Allotment Sub-Committee could not have crystallized in legally enforceable right in favour of the petitioner-Society. 14. The respondent-Trust has taken a plea that the land under consideration was a commercial land and the allotment could have been done only after it was converted for educational purpose and as such, no opportunity of hearing was required to be given to the petitioner-Society unless a final allotment letter, allotting the land to the petitioner-Society, was issued by any of the authorities. 15. The respondent-Trust has pleaded that no decision had ever been taken in the 138th meeting for allotment of land to the petitioner-Society and the minutes of 138th meeting were not confirmed in the 139th meeting and on the contrary, in the 139th meeting, a decision was taken to stay the proceedings of the 138th meeting. 16. The respondent-State has also filed reply to the writ petition and raised preliminary objection about maintainability of the writ petition as there was no concluded contract between the parties and merely an application for allotment of land was filed and no final order was passed, as such the writ petition cannot be filed by the petitioner-Society. 17. The respondent-State has taken a plea that the Divisional Commissioner had investigated the allotments made by the Allotment Sub-Committee of the Trust and he sent the investigation report to the higher authorities and vide order dated 26.09.2000, recommendations made by the Trust, were found against the provisions of law and further the Trust in its 149th meeting dated 18.11.2000 acted in consonance with the letter of the Divisional Commissioner dated 26.09.2000. 18. The respondent-Trust has filed an additional affidavit dated 27.05.2022 and submitted that the petitioner-Society had applied in the area known as Arogya Nagar Scheme, which is a commercial area and the same is prohibited for allotment under sub-rule (6) of Rule 19 of the Rajasthan Urban Improvement (Disposal of Urban Land) Rules, 1974 (hereinafter shall be referred to as "the Rules of 1974"). The additional affidavit makes further reference that there was no formal decision in the 138th meeting with regard to the allotment of land to the petitioner-Society and the Chairman had stayed the proceedings of 138th meeting and the same was confirmed by the State Government as the minutes of the 138th meeting were issued and circulated without the approval of the Chairman. The said additional affidavit makes further mention that the petitioner-Society had already been allotted a non-commercial plot measuring 4,90,650 sq.feet on a reserve price of Rs. 4.50 per sq.feet for construction of the school in the UIT scheme of Mahaveer Nagar-II vide letter dated 27.10.1990 and further the petitioner-Society has also been allotted another plot in the housing scheme for educational purposes by the Rajasthan Housing Board, Kota vide order dated 13.04.2005. 19. The additional affidavit further makes a reference that serious illegalities have been committed for allotment of plots in the various schemes and as such the State Government approved for cancellation of allotment of plots to five institutions including the petitioner-Society and after the enquiry being conducted by the Divisional Commissioner, no allotment has been made. 20. Mr. Madhav Mitra, learned Senior Advocate appearing for the petitioner-Society has made following submissions:- 20A. The order dated 13.12.2000 is an arbitrary order passed in gross violation of principles of natural justice. 20B. The impugned order could not have been issued only on the directions issued by the Divisional Commissioner and latter had no role in allotment of land to the petitioner-Society by the Trust. 20C. The right of the petitioner-Society of allotment of land, as per the decision taken in the meeting of the Allotment Sub-Committee and later on ratified by the Trust in its 138th meeting, could not be annulled in the subsequent meeting. 20D. The intervention by the Divisional Commissioner, purportedly exercising powers under Rule 30 of the Act of Rules of 1974, could not have been exercised by him, as there was no allotment made by the Trust in favour of the petitioner-Society. 20E. The intervention by the Divisional Commissioner stems from direction issued by the State Government or from office of the Chief Minister, as such, the decision of the authorities suffers from arbitrariness and malafide. 21. 20E. The intervention by the Divisional Commissioner stems from direction issued by the State Government or from office of the Chief Minister, as such, the decision of the authorities suffers from arbitrariness and malafide. 21. Counsel for the petitioner-Society has placed reliance on the following judgments, rendered by the Apex Court:- (i) M/s. Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay reported in (1989) 3 SCC 293 . (ii) LIC of India & Another v. Consumer Education & Research Centre & Others reported in (1995) 5 SCC 482 . (iii) East Coast Railway & Another v. Mahadev Appa Rao & Others reported in (2010) 7 SCC 678 . (iv) ITC Limited v. State of UP & Others reported in (2011) 7 SCC 493 . (v) The State of Jharkhand & Others v. Brahmputra Metallics Ltd., Ranchi & Another [Civil Appeal No. 3860-3862 of 2020]-Arising out of SLP (C) Nos. 14156-14158 of 2020 decided on 01.12.2020. 22. Mr. Anil Mehta, Additional Advocate General appearing of the respondent-State and Mr. Vimal Chaudhary, Counsel appearing for the respondent-Trust, have submitted that the petitioner-Society has no right to claim allotment of land, as no allotment was ever made in favour of the petitioner-Society and only by way of passing the resolution in 138th meeting of the Trust in pursuance to which no further was action taken, no legal right of the petitioner-Society is violated for claiming mandamus from this Court. 23. Counsel for the respondents have submitted that the internal correspondence or notings on file do not confer any right, until a formal order is issued in favour of the person/party. Counsel submitted that the petitioner-Society has failed to challenge the order of the Divisional Commissioner and there is no prayer in the writ petition to the said effect and as such, no grievance can be raised by the petitioner-Society in respect of the action taken by the Divisional Commissioner. 24. Counsel for the respondents further submitted that the petitioner-Society has been allotted land at two different places in Kota itself and as per the Rules, the petitioner-Society is not entitled for further allotment of the land. 25. Heard learned counsel for the parties and with their assistance perused the material available on record. 26. 24. Counsel for the respondents further submitted that the petitioner-Society has been allotted land at two different places in Kota itself and as per the Rules, the petitioner-Society is not entitled for further allotment of the land. 25. Heard learned counsel for the parties and with their assistance perused the material available on record. 26. Before proceedings further, this Court deems it proper to quote the provisions of Rules of 1974, relevant for deciding the present controversy, as follows:- "30. Proceedings of transfer can be stayed pending examination.- (1) The Divisional Commissioner for the purpose of satisfying itself as to the correctness legality or propriety of any transfer of land made under the provisions of these rules by auction or allotment by any Trust call for the relevant record and may while doing so direct that pending the examination of the matter, such transfer of land shall be withheld. (2) If, after examining the record and after affording a reasonable opportunity of explanation to the parties concerned, the Divisional Commissioner is satisfied that the transfer of land by the Trust by auction or allotment is not in accordance with or is in contravention of these rules, may cancel or rescind wholly or in part any action or proceeding taken or contract entered into by the Trust regarding such transfer of land or may revise or modify the order or give any other direction as it may deem fit." 27. The first issue for consideration before this Court is with respect to the right of allotment of land to the petitioner-Society on the basis of decision taken by the Allotment Sub-Committee and the decision taken by the Trust in its 138th meeting held on 24.04.1998. 28. This Court finds that the petitioner-Society had submitted application for allotment of land for setting up educational institutions and accordingly, the said matter was placed before the Allotment Sub-Committee. The Allotment Sub-Committee on 21.04.1998 had observed that the petitioner-Society had applied for allotment land in Arogya Nagar Scheme, Kota but the land in the said Scheme was reserved for commercial purposes and as such, the Allotment Sub-Committee recommended that before allotment of land, the requisite land use was required to be changed for commercial to educational purposes. 29. This Court further finds that in the 138th meeting of the Trust dated 24.04.1998, the recommendation of Allotment Sub-Committee was discussed and the land measuring 39,900 Sq.Mtrs. 29. This Court further finds that in the 138th meeting of the Trust dated 24.04.1998, the recommendation of Allotment Sub-Committee was discussed and the land measuring 39,900 Sq.Mtrs. was found suitable to be allotted at half of the reserve price of Rs. 900/- and the said piece of land was required to be converted from commercial to educational purposes. 30. This Court finds that 138th meeting of the Trust had also put a rider of allotment of land to the petitioner-Society as in the approved Scheme of the Trust, the land in question was reserved for commercial purposes and without conversion of the same, the land could not have been allotted to the petitioner-Society. 31. This Court further finds that before any action could be taken for conversion of the land, that too by the State Government, the minutes of 138th meeting were stayed by the Chairman of the Trust and later on the said stay was also confirmed by the State Government. 32. This Court also finds that in absence of any further act, either by the UIT authorities or by the State Government, to convert the land from commercial use to educational use, no right can flow to the petitioner-Society for allotment of land. 33. This Court finds that the decision, which was taken in 138th meeting by the Trust, became subject matter of investigation and all other allotments, which were made by the Trust to the educational institutions like petitioner, and came to be examined by the Divisional Commissioner. 34. This Court finds that the petitioner-Society has placed on record the enquiry report of the Divisional Commissioner and on perusal of the said enquiry report, it is revealed that several irregularities were found and the Trust while holding its 138th meeting on 24.04.1998, did not take the decision in a proper manner as neither conversion of land was sought from the State Government nor the area applied by the petitioner-Society was kept in mind and further the rates, which were fixed, were also on a very lower side, which could cause loss to the Trust. 35. This Court finds that after investigation done by the Divisional Commissioner wherein several irregularities were noted, the respondent-Trust took a decision in its 149th meeting dated 18.11.2000, whereby the earlier decision was cancelled. 36. 35. This Court finds that after investigation done by the Divisional Commissioner wherein several irregularities were noted, the respondent-Trust took a decision in its 149th meeting dated 18.11.2000, whereby the earlier decision was cancelled. 36. The submission of learned counsel for the petitioner-Society that the decision of the Trust suffers from arbitrariness and as such right of the petitioner-Society to get the allotment of land has been violated by the respondents, this Court finds that merely on recommendation of Allotment Sub-Committee and further decision of the Trust to allot the land, after fulfilling certain conditions, like change of land use, etc., will not confer any right in favour of the petitioner-Society to get the allotment of land. 37. This Court finds that the respondents at no point of time had initiated any move to make change in the land use and if the competent authority i.e. the State Government did not permit the change in the land use, no right can be claimed by the petitioner-Society to get the allotment of land made in its favour. 38. The submission of learned counsel for the petitioner-Society that the Divisional Commissioner has acted in an arbitrary manner and he had no jurisdiction to interfere in the functioning of the Trust, suffice it to say by this Court that when decision of the Trust was brought to the notice of the Divisional Commissioner, he had power to see the correctness and illegality of the decisions taken by the Trust for transfer of land. 39. 39. The submission of learned counsel for the petitioner that as per Rule 30 of the Rules of 1974, when there was no allotment of land, then the Divisional Commissioner ought not to have exercised his power and even if he had to exercise his power, then also under sub-section (2) of Rule 30 of the Rules of 1974, a reasonable opportunity was required to be given to the petitioner-Society before annulling the decision to make allotment of land in favour of the petitioner-Society, this Court, on perusal of sub-rule (1) of Rule 30 of the Rules of 1974, finds that the Divisional Commissioner has been vested with power to satisfy itself as to the correctness, legality or propriety of any transfer of land under the Rules of 1974 either by auction or allotment by any Trust and further power is given to him, during examination of the matter, to withhold such transfer of land. 40. The submission of learned counsel for the petitioner-Society that only after transfer of the land or allotment itself, the power can be exercised by the Divisional Commissioner, this Court finds that if the correctness, legality or propriety relating to transfer of land either by way of allotment or auction, is to be considered by the Division Commissioner, it cannot be inferred that any action taken by the Trust before actual allotment, the Divisional Commissioner will have no power to intervene. 41. The submission of learned counsel for the petitioner-Society that as per sub-rule (2) of Rule 30 of the Rules, 1974, an opportunity of hearing/explanation was required to be given to the party concerned, this Court finds that since allotment was not made, as such, no right was conferred in favour of the petitioner-Society to seek any right of hearing and the Divisional Commissioner had sought report from the Trust and after examining the same, he reached to the conclusion that proceeding or action taken by the Trust, was not in consonance with the allotment Rules. 42. 42. The submission of learned counsel for the petitioner-Society that intervention of the Divisional Commissioner was at the instance of the State Government from the office of the Chief Minister and the same having been resulted into annulling the earlier decision of the Trust to allot land to the petitioner-Society, this Court finds that the minutes of 138th meeting of the Trust were stayed by the Chairman himself in 139th meeting of the Trust and, as such, no further action was taken in pursuance of the decision of the Trust, as taken in its 138th meeting and if the investigation was done by the Divisional Commissioner later on, the same cannot be termed as an intervention or exercising powers not vested in the Divisional Commissioner. 43. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (supra) is concerned, the Apex Court in the said case has laid down the law that the authorities covered under Article 12 of the Constitution of India, cannot act arbitrarily even in the contractual matters and must act only to the advance public interest. The said case is of no assistance to the learned counsel for the petitioner-Society. 44. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of LIC of India and Anr. v. Consumer Education & Research Centre and Ors.(supra) is concerned, the Apex Court has considered the insurance policy of the LIC and their terms and conditions involving public element. The said case is not relevant for any of the reason, in the present facts of the case. 45. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of East Coast Railway and Anr. v. Mahadev Appa Rao and Ors. (supra) is concerned, the same is in respect of the recommendation process and the cancellation of the examination and, as such, it has no relevance. 46. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of ITC Limited v. State of UP and Ors. (supra) is concerned, the same is in respect of the recommendation process and the cancellation of the examination and, as such, it has no relevance. 46. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of ITC Limited v. State of UP and Ors. (supra) is concerned, the same is in respect of allotment of land for industrial purposes and whether the hotel should be considered as an industry or not, was the question before the Apex Court. This case has no application on the facts of the present case. 47. As far as reliance placed by learned counsel for the petitioner-Society on the judgment passed by the Apex Court in the case of The State of Jharkhand and Ors. v. Brahmputra Metallics Ltd., Ranchi and Anr. (supra) is concerned, the issue before the Apex Court was with regard to the grant of rebate or reduction on the basis of industrial policy and the said case has no bearing in the facts of the present case. 48. For the reasons discussed above, the present writ petition stands dismissed. The interim order dated 29.08.2001 stands vacated and all the other misc. applications stand disposed of.