Farsubhai Muljibhai Goklani vs State of Gujarat and Others

Akil Kureshi, J.—This petition filed in the public interest questions the legality of the funds distributed from the Prime Minister''s National Relief Fund (hereinafter referred to as "PMNR fund" for short) for construction of a building for school run by the trust of which the respondent No. 5 is the founder.

Facts of the case of the petitioner are as follows:

2.1 Petitioner claims to be a social worker doing such work in Radhanpur Taluka. Respondent No. 5 is a member of Legislative Assembly elected from the said constituency. According to the petitioner said respondent No. 5 has misused the grant received from the PMNR fund for the purpose of construction of building of the school run by the trust of which he himself is a President.

2.2 It is the case of the petitioner that respondent No. 5 is founder of a trust called "Shri Swami Vivekanandan Vikas Mandal (hereinafter referred to as "SSVVM" for short) which is a trust registered under the Bombay Public Trust Act. Petitioner has given details of the members of the trust, which are not disputed by the respondents; as follow:

Sr.No. Name Relationship with respondent No.5 1. Shankarbhai Lagdhirbhai Chaudhry Self - President 2. Maheshbhai Prahladbhai Mehta 3. Dajabhai Ratanbhai Patel Brother-in-law 4. Godha Jehabhai Nephew 5. Hameerbhai Rupabhai Patel Nephew 6. Bhavabhai Karshanbhai Piliyatar Brother-in-law 7. Paramaben S. Patel Wife

2.3 Thus, respondent No. 5 is founder and President of the said trust and other members are close relatives of the said respondent. In the year 2001, devastating earthquake caused extensive damage to a large number of buildings in the region. Since the number of school buildings also suffered such damage, the State Government in order to ensure that education of the students does not suffer, decided to assist reconstruction of fully or substantially damaged buildings by giving grant from PMNR fund. Government formulated a scheme in this regard under Resolutions dated 19.09.2001 and 26.09.2001. Government assistance was to be given on the following conditions as contained in the resolution dated 19.09.2001.

Government has also decided to assist grant-in-aid Secondary and Higher Secondary School totally collapsed and heavily damaged (only G4 level) from PMNRF on following conditions:

The school/trust applying for the assistance from PMNRF shall be a registered body under the law.

The School / Trust shall not transfer the said land / buildings to any other institution or person for 15 years from the date of completion of such building.

2.3 In subsequent resolution dated 26.09.2001, it was clarified as under.

The grant-in-aid Secondary / Higher Secondary School in your District included in the Prime Minister Relief Fund which are absolutely destroyed in the earthquake or who have suffered heavy losses, such schools satisfying the G-4 level conditions only then such schools work can be taken on hand from the P.M. Fund. As stated in the condition the District Education Officers shall obtain the assurance letter on the requisite stamp paper for the schools desiring construction.

2.4 The claimant school had to make a declaration before the government in terms of the said resolutions dated 19.09.2001 and 26.09.2001 in a standard format which provided as under:

We do hereby give assurance on oath that:

The building of our school has been damaged on account of the earthquake which occurred on 26.01.2001 and the primary information thereof has been produced herewith and we are also ready to furnish the additional information which has been called for from the different departments as and when received.

We do hereby agree that rules and regulations framed under Resolution NO. BMS-112001-1170-G dated 19.09.2001 issued by the Gujarat State Education Department for providing aid shall be binding to us.

There is no dispute with regard to the building and ownership of the school as well as its administration and there is no litigation pending in that connection in any forum.

We also do hereby agree to furnish any documentary proofs with regard to the building of the school, ownership of its land and construction and other relevant documents of the present building as and when demanded from us within the stipulated time period and without any delay.

We also do hereby give assurance that we shall strictly adhere to each and every instructions and procedures indicated and laid down by the Government in this connection.

If any of the foregoing terms and conditions or those that may be implied by the Government from time to time in this connection is violated or any default in that regard is committed by us or any of the persons from our side, we agree that the Government shall be entitled to deduct the same from the grant which is allotted to us by the government itself.

2.5 It is, thus, case of the petitioner that as per the Government policy, assistance for reconstruction of the building of grant-in-aid school was to be given only in case of total destruction or substantial damage to the school building and only if the trust running the school had ownership of such land and building. It is, however, case of the petitioner that SSVVM run a school in the name of Nalanda Girl''s School but did not own the land or building and such school was functioning on the land and building owned by the Sarvoday Arogya Nidhi, Radhanpur (for short "SAN") given to SSVVM for its use rent free. It is therefore the case of the petitioner that SSVVM was not entitled to receive any grant from the PMNR fund for construction of school building since the trust running the school neither owned the land nor the building. According to the petitioner, SAN never applied for assistance for reconstruction of the building. Petitioner has referred to two letters dated 26.07.2007 and 10.09.2007 written by the Secretary of SAN clarifying its position in this regard. Reference to contents of these letters will be made later.

2.6 Despite this position, it appears that SSVVM received substantial grant from the PMNR fund for reconstruction of school building. As per the petitioner, the trust received grant of Rs. 60.95 lakhs from the PMNR fund. Such grant was claimed and received by creating false documents with active help and support of the respondents Nos. 3 and 4 who are government officials. It is, in fact, case of the petitioner that the building where the school in question previously was functioning never received any extensive damage to fall in G-4 category. Even the claim of such damage was false.

2.7 By receiving such funds, respondent No. 5 constructed new building of the trust at another place where also the trust did not own the land. It is, thus, the case of the petitioner that respondent No. 5 misused an amount of Rs. 60.95 lakhs from PMNR fund by creating false evidence.

2.8 The petitioner has therefore prayed for direction to recover the amount disbursed from PMNR fund, criminal action against respondents Nos. 2 to 5 and additional departmental action against government officers.

Several affidavits have been filed by State authorities as well as by the other respondents. Primarily, the stand of the respondent No. 5 is that the petitioner is a political personality. Petition is filed malafide to settle private scores. Necessary documents were presented before the authority for sanctioning grant. Trust has never received the grant and the amount is directly paid to the construction company upon completion of the construction work. Amount released was Rs. 21.02 lakh and allegation of disbursement of Rs. 60.95 lakhs is highly exaggerated. Land on which the new building has now been constructed has been gifted to the trust by one Dalsukhram B. Thakkar. The SAN has given no objection to the fund being given to the SSVVM trust. On behalf of SAN, affidavit dated 06.04.2010 has also been filed in which it is stated that SAN has no objection to SSVVM receiving relief for damage suffered by the school building in the earthquake.

3.1 Since objection was raised on behalf of the respondent No. 5 that trust is not joined as party, the trust SSVVM was joined as additional respondent No. 8. Affidavit has also been filed by one Shri Dazabhai Ratnabhai Patel, Secretary of the trust on 21.06.2010 stating inter alia that the trust has disclosed to the authorities that the damaged building in question belonged to SAN and the trust was managing the school.

Official respondents have tried to support the respondent No. 5. In an affidavit dated 18.07.2008 filed by one Shri A.S. Barot, Lecturer, Class-II, it is stated as follows:

Therefore, as per the proposal of the NBCC estimated cost of the reconstruction of the school in question was Rs. 24.36 lacs. The NBCC constructed school building on the land owned by the Swami Vivekanand Trust, Radhanpur by incurring actual expenditure of Rs. 21.02 lacs which was made available directly to the NBCC by the Prime Ministers Office. Therefore, it is clear that the funds were made available actually from the PMNRF to the NBCC which carried out the construction of the school and neither State Government nor any officer of the State Government has either received amount or has disbursed any amount to the trustees or school management of respondent No. 5. Even the funds have not reached in any way to the school management of the respondent No. 5 in any way. The construction agency i.e. NBCC has received the amount from the PMNRF. It is submitted that the project proposal was submitted to the Prime Minister''s office, after the information collected from the District Education Officer and the said project was considered by the Prime Ministers office. Therefore, work of the State Government or its officer had come to end on submitting the project report. The construction activities was carried out by the construction agency appointed by the Prime Minister''s office and the State Government had no role to play in the same.

In view of the above, prayer sought in the petition that the State Government should initiate action for recovery of money released from PMNRF is absolutely misconceived and baseless and other prayers regarding the action against officer are also misconceived and without any application of mind.

4.1 On 16.02.2010, we called upon the said respondent No. 3 to file affidavit on certain specific aspects of the matter as under:

From the affidavit filed by the 3rd respondent (S.C.A. No. 24472/07) it appears that building of Nalanda Girls High School, Radhanpur, was damaged in earthquake and for the said reason a sum of Rs. 20.83 lakhs was granted to National Building Construction Corporation (NBCC) for construction of the school building, which is run by a Trust of which the 5th respondent is one of the trustees.

Counsel for the petitioners submitted that all the trustees are relatives of the 5th respondent who are running the school and the said Trust has no school building, but it was running in a rented building.

In the circumstances, we direct the 3rd and 5th respondents to file additional affidavits and state whether Nalanda Girls High School, Radhanpur, had its own building prior to earthquake? If it was a tenant in some other building which was damaged then why State Government will construct and provide a separate building for the school, amounting to donating a new building in favour of the school run by the 5th respondent along with relatives.

Let the matter be posted on 04.03.2010.

4.2 Pursuant to the said order and the subsequent reminder on 04.03.2010, one Shri C.V. Som, IAS, Commissioner of Schools and Mid-day Meals, Gandhinagar filed affidavit dated 18.03.2010 stating inter alia that;

The Government resolution dated 19th September 2001 of Education Department, Government of Gujarat (attached with this affidavit in Annexure-I) states that after consultation with the Prime Ministers Office the State Government resolved that the High Level Committee will have full powers to take decision in respect of implementation and execution of these projects.

In the Minutes of the High Level Committee Meeting dated 7th September 2001 it has been stated that 422 schools were identified for repairs / reconstructions.

The Government resolution dated 19th September 2001 mentioned that 135 Government Schools and 287 Non-Government aided schools have either been destroyed or have suffered heavy damages, i.e. total 422 schools that were identified by High Level Committee. A copy of the list of 422 schools is attached with the affidavit in Annexure-II.

The name of the Nalanda Girl''s High School, Radhanpur appears in the list of 287 non government aided schools at Serial No. 78.

It is submitted that after finalization of list of schools by High Level Committee, CEPT was engaged to carry out the work of approving plans and estimates and thereafter payment were to be made by Prime Minister''s office.

I, humbly submit that Nalanda Girls High School, Radhanpur did not have its own building prior to earthquake. And it is true that Nalanda Girls High School, Radhanpur was running in a rented building which was heavily damaged as per the survey report. The survey report of Nalanda Girl''s High School, Radhanpur carried out by National Building Construction Corporation (NBCC) stated as follows (attached as Annexure-III):

The damage is extensive. There is no old construction left. NCCBM estimate is for repair of rented premises. In NBCC estimate the entire school to be reconstructed with proper planning rather than having separate structures. Re-strengthening in the form of horizontal and vertical bands only to the masonry.

However, it is not clear from the Minutes of the High Level Committee''s meetings why did the government decided to cover this school i.e. Nalanda Girl''s High School, Radhanpur (which was running in rented premises) under the earthquake reconstruction scheme. It is my humble submission that possibly the committee would have taken this decision in view of the fact that the girls studying in this school should not suffer in their pursuit of education.

It is my humble submission that in view of the above facts, the Hon''ble High Court may kindly give necessary directions in this case.

On the basis of the above allegations and counter allegations, learned advocates appearing for the both sides made detail submissions. Learned Sr. Advocate Mr. Kavina for the petitioner vehemently contended that SSVVM trust previously run Nalanda Girl''s High School in rented premises. The trust neither owned the land nor the building. Land and building belonged to SAN. Government Resolution dated 19.09.2001 and 26.09.2001 did not envisage assisting for re-construction of school building where the trust is not owner of the damaged building. Respondent No. 5 by making false declaration before the authorities received large amount of funds from the PMNR fund in favour of SSVVM - a trust of which he himself is founder and Managing Trustee and other trustees are his close relatives. He drew our attention to the various documents on record, reference to which shall be made at a later stage.

On behalf of respondent Nos. 5 and 8, learned Senior Advocate Mr. S.B. Vakil contended that all the trustees of the SSVVM trust are not joined though they are necessary parties. Petitioner is political rival of the respondent No. 5 and he has filed this petition for political vendetta, therefore, writ of this Court should not be entrusted to him.

6.1 He contended that no illegality has been committed by any of the respondents. SAN did not object to fund being released in favour of the respondent No. 8 - trust for construction of new school building. Learned Sr. Advocate Mr. Vakil has relied on the following decisions:

(1) Atmaram Rachhodbhai Vs. Gulamhusein Gulam Mohiyaddin and Another, in which it is observed that decision making by the co-trustees must be joint in absence of severality in the trust deed.

(2) Kansing Kalusing Thakore and others v. Rabari Maganbhai Vashrambhai and others, (2006) 12 SCC 360, in which the Apex Court finding that the petitioner acted with malafide intention and had filed public interest litigation for personal grievance, held that such writ petition would amount to abuse of process of court.

(3) Divine Retreat Centre Vs. State of Kerala and Others, wherein the Apex Court observed that the petition u/s 482 of the Code of Criminal Procedure on an anonymous application seeking direction for investigation sent directly in the name of Judge of the High Court ought not to have been entertained.

(4) D. Venkatasubramaniam and Others Vs. M.K. Mohan Krishnamachari and Another, wherein the Apex Court finding that High Court without recording any reason had directed the police to investigate the case from particular angle and take certain steps. It was found that this would amount to over-stepping the limits of judicial interference. Scope and parameters of public interest litigation in the above background were also examined.

(5) Kunga Nima Lepcha and Others Vs. State of Sikkim and Others, wherein, the Apex Court finding that the public interest litigation being pursued by a political rival and that the petition was inspired by political rivalry rather than public concern, observed that writ jurisdiction of the Court cannot be turned into an instrument of such partisan consideration.

Learned Government Pleader contended that the object of State Government policy was to assist reconstruction of the damaged school building to ensure that education of the students does not suffer.

Upon hearing learned advocates for the parties and on perusal of the documents on record, the following factual position clearly emerges.

8.1 Admittedly, the school in question run by the respondent No. 8 trust was previously situated in the building belonging to SAN. Building was given rent free to respondent No. 8 trust for running said school. Respondent No. 8 was neither the owner of the land nor the building.

8.2 Respondent No. 5 who is a Member of Legislative Assembly from Radhanpur Constituency is Managing Trustee of the respondent No. 8 trust - SSVVM. Other trustees are his close relatives.

8.3 Quite apart from the question, whether the school building suffered any serious or substantial damage due to earthquake, the question is who would be entitled to receive the government assistance in case of such damage.

8.4 SAN never applied for government assistance for reconstruction of the building even if it was damaged.

8.5 Two letters written by the Secretary of SAN dated 26.07.2007 and 10.09.2007 are self explanatory in this respect. These letters were received in response to the application for information under the Right to Information Act, 2005 given by the petitioner. In the letter dated 26.07.2007 it is stated inter alia that presently Nalanda Girls School is not running in the building of SAN. The building was previously given rent free. During the earthquake which took place on 26th January 2001, the building did suffer damage, however, SAN has not claimed any fund for such damage. SAN is not even aware about the compensation for such damage being paid to anyone else.

8.6 In a further letter dated 10.09.2007 written by the Secretary of SAN, it is stated that since the building was handed over to the SSVVM at the time of earthquake, the extent of damage and the amount of the expenditure are not known to him. Presently also, said building is being used by the SSVVM for educational purposes and the building has not been demolished for reconstruction.

8.7 It is undisputed that SSVVM applied for assistance from the PMNR fund for reconstruction of the school building which according to it, was damaged during the earthquake. Fund to the tune of Rs. 21.02 lakhs is also made available by directly applying it to the construction agency. Such building is constructed on the land which the trust claims to have received as gift from a private individual.

8.8 Though we never directed SAN to file any affidavit and SAN is not a respondent in this petition, it has filed affidavit which is tendered by the respondent No. 5 stating that SAN has no objection to the relief being given to the SSVVM for construction of the new school building.

As already noted, in the latest affidavit dated 18.03.2010 respondent No. 3 was unable to explain why the government decided to cover Nalanda Girl''s High School which was running in the rented premises under the Earthquake Reconstruction Scheme. It is somewhat ambiguously suggested that possibly the Committee would have taken this decision to ensure that the girls studying in the school should not suffer in their pursuit of education. To our mind, it is absolutely clear that the relief fund was made available to the respondent No. 8 by the State agency which was legally impermissible. First and foremost, we have serious doubt whether the building where the Nalanda Girl''s School was previously functioning received such extensive damage as to fall in G-4 category so as to require total reconstruction. The building belongs to SAN. On behalf of the SAN, letters issued on 26.07.2007 and 10.09.2007 clearly state that though previously Nalanda Girl''s School was functioning in the said building, presently the said school is not stationed there. However, SSVVM still continues to occupy the building running some other educational institutions. Building was never pulled down nor reconstructed. If the same could be used without reconstruction for some other educational activities, we fail to see how it was declared unfit for continuing Nalanda Girl''s School. If, on the other hand, conclusion of the authorities was that the building was unsafe for occupation for educational activities, we do not see how presently some other educational institution is being operated from the said building.

Our conclusions do not end here. Quite apart from this controversial aspect, whether the building itself received extensive damage so as to require reconstruction, we are firmly of the view that in any case, SSVVM could not have claimed any relief for reconstruction of the building since undisputedly the land and building belonged to SAN and not SSVVM. If at all SAN could have claimed any relief from the Government. Admittedly SAN never claimed such relief. As indicated in its letter dated 10.09.2007, SAN is not aware that such relief was claimed. Its later stand that it has no objection to SSVVM receiving such relief is of no consequence.

Combined reading of two government resolutions dated 19.09.2001 and 26.01.2001 framing the scheme and declaration required to be made by the claimant for receiving such government assistance under the said scheme makes it abundantly clear that the government assistance was to be made available only to the owner of the building. In the resolution dated 19.09.2001, it is stated that due to earthquake, buildings of 135 government and 287 non government aided schools have either been destroyed or suffered heavy damage. Hon''ble Prime Minister has approved the State Government''s proposal to assist reconstruction and up gradation in full and partially collapsed government and government aided schools from PMNR fund. Terms on which such grants could be given included that the trust shall continue to use building for such school and shall not use it for any other purpose. It is also one of the conditions that the trust shall not transfer said land and building to any other third party for 15 years from the date of completion of such building. In further resolution dated 26.09.2001, it is provided that grant-in-aid schools will include those schools of the district which are absolutely destroyed or who have suffered heavy losses. Declaration that the claimant / trust / school had to make for receiving such grant also had to undertake to adhere to the conditions of the said resolution. It had to furnish documentary proof with regard to the building of the school, its ownership of the land and the construction.

Combined reading of the said resolutions dated 19.09.2001 and 26.09.2001 and the deed of declaration make it abundantly clear that grant from PMNR fund was to be made available for reconstruction of school building which is either completely destroyed or heavily damaged provided the trust was the owner of the land and school building.

Even otherwise, it can be easily be seen how releasing of the such fund in favour of an occupant who is not the owner can be misused as in the present case. The SSVVM which was never the owner of the land and building but only occupied it rent free claimed government assistance for reconstruction of the building. Such claim was accepted and huge funds of Rs. 21.02 lakh were released though SSVVM was not owner of the previous building which is alleged to have received extensive damage. Thus, with the Government aid, SSVVM become owner of constructed school building which prior to such aid was never owned by it. Thus, with the Government aid, SSVVM instead of a tenant or a permissive occupant of the building become owner of building constructed at the government cost.

This coupled with the close association of the respondent No. 5 in the trust in question and the government agencies showing willingness to bend the rules to accommodate the trust convinces us that this is a fit case where writ should be issued. As already noted, respondent No. 3 in his further affidavit dated 18.03.2010 could not explain why and how such funds were put at the disposal of the SSVVM when it did not own the previous building in which the school was functioning. In other words, the government aided SSVVM to construct its own building for the alleged damage to the building which SSVVM never owned. For damage to someone else''s building, SSVVM secured government fund to construct its own school building. As recorded earlier, we have our serious doubt whether the building in question received such extensive damage so as to fall in G-4 category. As recorded, said building even as per the SAN is still being utilized by the respondent No. 8 trust for running other educational institution. Further in declaration form which came to be filed by the trust seeking the grant (copy thereof is produced at page 158 to the compilation), name of school mentioned is `Nalanda Kanya Vidhyala''. The owner of the school and building is shown to be SAN. When these facts were before the authority, we fail to see how grant was released in favour of the SVVMM clearly against the terms, conditions and objects of the government resolutions dated 19.05.2010 and 26.01.2001.

We are of the view that quite apart from recovering the full amount from the SSVVM with interest, departmental as well as penal actions should be initiated against the persons concerned.

We are, clearly, of the opinion that the SSVVM could not have received such government assistance from the PMNR fund but for either through conscious connivance or lose adherence to the rules by the government officers. We, however, express no conclusive opinion in this regard but require the government to hold inquiry and take actions against the erring government officials at department level if found involved. We also require the government to initiate the criminal proceedings against those including respondent No. 5 if prima facie found to have committed any offence. Such investigation shall be made by CID (Crime) and not by local police.

Two issues need to be dealt with. First objection to the petition is that the same is politically motivated. We do not find any substance in the opposition of respondent No. 5 that the petition is politically motivated or that only on that count the same should be dismissed. Whatever may be political rivalry between the petitioner and the 5th respondent, we have examined the materials on record to find out whether any irregularity or illegality has been committed in releasing grant in favour of the respondent No. 8-trust. Second opposition to the petition on the ground that all the trustees are not joined as respondents, also must fail. On 07.04.2010 with respect to question of joining the trust, the following order was passed.

In view of the affidavit filed by fifth respondent, we direct to implead Shree Vivekanand Vikas Mandal, Radhanpur as party respondent through its trustee. Cause title be amended accordingly. Notice on newly impleaded respondent. Petitioner to serve notice through its trustee, i.e. fifth respondent. Direct notice by speed post permitted.

Newly impleaded respondent to file their reply within two weeks.

Post the matter for further hearing on 26th April 2010 within five cases in the first board.

This order has not been challenged either by the respondent No. 5 or respondent No. 8. The trust, thus, was to be represented by the respondent No. 5. In any case, an affidavit-in-reply has been filed on behalf of the respondent No. 8 - Trust by its Secretary. Trust is thus sufficiently represented. It had full notice of the contents of the petition and other pleadings on record. Trust also fully participated in the hearing by filing affidavit and representing its case through the Advocate. Its opposition has been taken into account. Contents of the affidavit-in-reply are taken note of. Significantly, learned Sr. Advocate Mr. S.B. Vakil argued before us on behalf of both respondent No. 5 as well as respondent No. 8. Grievance that the other trustees were not joined is merely technical and therefore, turned down.

In the result, the petition is disposed of with the following directions.

(1) Respondents and particularly, respondent No. 1 shall take all necessary steps to recover full amount of government assistance of Rs. 21.02 lakhs released for construction of the building from the PMNR fund with 10 % simple interest from the date of payment till actual recovery from the SSVVM which shall be done within two months. If the respondent No. 8 refuses to refund the amount as directed above, steps will be taken to cancel recognition of the Nalanda Girls High School.

(2) Respondent No. 1 shall take necessary steps to hold inquiry to find out if any government officials were responsible for lapse and if so found, initiate departmental proceedings against all such officers.

(3) Respondent No. 1 shall also examine and if prima facie involvement is found, initiate criminal prosecution against those who are prima facie found to have committed any offence and hand over such investigation to CID (Crime).

(4) Respondent Nos. 5 and 8 shall jointly pay cost of Rs. 25,000/ -. Since the petitioner has filed this petition in the public interest, such cost shall be deposited with the Gujarat State Legal Services Authority and shall not be paid over to the petitioner.

(5) Respondent No. 1 shall also examine whether there are similar such cases of other trusts where grant from the PMNR fund has been released contrary to the terms of the resolution. If so found, in such cases also, similar steps will be taken.

With the above directions, the petition stands disposed of.