JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Let this matter appear again on Monday as a fresh part heard matter at the top of the group of the fresh matters.
2. The allegations in this public interest litigation is that 11 Bhigas of land resumed by the Government under Section 117 (6) of the U.P.Z.A & L.R. Act, 1950 is being given at a throw away price of Rs. 7,500/- annual lease rental to one Ram Bachan Yadav Mahavidyalaya which claims to be a self sustaining unaided. There are certain allegations in the petition like in paragraph 8 which are of a political nature, with which we are not concerned at all.
3. We are only concerned with the appropriate manner of distribution of government land. The Government is like a trustee of government property and should put such property to the best use getting the best reasonable revenue therefrom. As such if a college is to be set up, the reasonable highest lease rental should be obtained from the land in that regard. There is nothing against giving the land to a private institution, if it is appropriately assessed to be the best institution suited for furthering the cause of education in the locality. If, however, there has been no competition invited in that regard, and only one institution has been fixed upon, then and in that event, the reasons for fixing upon such institution should be transparent and manifest and those have to be available to the Court.
4. Certainly, Mr. Kazmi is hundred per cent reasonable in asking for time for obtaining instructions in this matter.
5. The foundation stone is said to be scheduled to be laid very soon perhaps on 10.5.2005. We would not like the foundation to be laid by any higher political person if the matter is under dispute before as in a manner which is even oenofely likely to cast any slur upon the Government. Assuer, until further orders of the Court, status quo in this matter shall be maintained and the Government Orders in relation to the setting up of the said institution and the giving away of land to the said institution or giving possession to it, should not be further proceeded with.
6. This order is passed without prejudice to the rights and contentions of the parties on our prima facie view only and subject to modification and even wholesale cancellation, on further hearing.
7. Copy of the order be given as soon as it is corrected and signed.
Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
8. Mr. Kazmi appearing for the respondents has filed two affidavits on behalf of his clients today and prayed for vacating the interim order which was passed by us on 6.5.2005.
9. He has submitted that the writ petitioner, i.e., the Secretary of the writ petitioner is herself a member of the Land Management Committee of the Sabha which as a whole itself vetted the proposal for establishment of the Ram Bachan Yadav Degree College.
10. The resolutions are dated 30.11.2004 and 26.2.2005. He submitted that these matters have been suppressed in the petition. He further said that the Education Department is fully in charge of the proceedings and the land will continue to vest in the State Government; the college will only be a leaseholder. He further emphasised that on the basis of the Cabinet decisions the proposed five hectare grant of the college has been slashed down by 60%, i.e., only two hectares have been allotted. According to him it goes to establish the fairness and impartial attitude of the State Government. Had the allegations in paragraph 8 been true at all, there would have been no slashing down of the area of the granted to the college.
11. Regarding the lease rental, he submitted that on the basis of the principles laid down under Section 245 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 and Government order dated 14.11.2004 (the copy of which handed over by Mr. Kazmi, should be kept on the record), the calculation of the rental was wholly in accordance with law. The land being "Usar" land, i.e., unfertile land, the maximum rate of land revenue as per the above sanction could be only at the rate of Rs. 10/- per acre, and as per the Government order when land is settled on rental, the rate is to be multiplied by 150; as such the annual lease rental of Rs. 7,500/- was fixed.
12. He further said that 30 years rent, i.e, Rs. 2.25 lac has already been paid by the college and appropriated by the government.
13. He also submitted that writ petitioner was aware of the Ram Banchan Yadav College as early as on 30.11.2004 and waited for several months to come before the Court only for the purpose of casting discredit on the ruling party. According to him she is a party to the decision of the Gaon Sabha and cannot challenge it only because she has lost in the Gaon Sabha and wishes to ventilate her personal grievance in the writ petition.
14. On behalf of the writ petitioner an invitation card was today handed over which we have kept on the record of this proceedings wherein it appears that the Education Minister has been described as the Manager of the college proposed to be set-up. No doubt these matters would be dealt with in the further affidavits.
15. After all the submissions are made and the writ petitioner further emphasises the technicalities of observing procedures under Section 117 (6) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, i.e., proper ways of erasing the decision of the Gaon Sabha earlier taker; as to the setting up a government degree college, and the sudden reversal thereto by the Government and their taking of a decision to set up a privately financed degree college, still are of the prima facie view that the Government action of wholly doing away with the premium to be paid by the Ram Bachan Yadav College needs scrutiny by us. It is not in dispute that it would be open to the government to take premium, in accordance and no doubt reasonably consistently with the facts and circumstances of the case. Such premium for two hectare of land might be sizeable or even very sizeable; the proposed lease appears to be a free grant excepting for the lease rental only, and that the 30 years period of lease granted for one time payment of Rs. 2.25 lac would be renewable up to a period of 90 years.
16. So far as we can see this in practice is an almost outright grant of the land for a few lac rupees only with the rider, of course, that an educational institutional by way of a degree college has to come up here and not that the land could be sold away at a profit or that it can be put to some other commercial or industrial use.
17. No doubt, the setting up of an educational institution has in it a public element but it is equally true that it has in it a private element also. Private colleges can make a lot of profit although theocally such profit can only be reasonable and for the purpose of generating such revenue as is necessary for maintenance and furtherance of the excellence of the institution itself. As things stand in the State today, the setting up of a degree college is a financially profitable venture, although the generation of such profit must along with it, also generate and spread education.
18. We do not feel satisfied as at present that if there had been reasonable publicity the State Government would have been unable to obtain with reasonable facility any other body willing to set up a self financing degree college on the terms given to the Ram Bachan Yadav College and further that such other institution would not be willing to pay in addition thereto a sizeable large amount of premium.
19. On enquiries Mr. Kazmi told us that the area in question is 45 kilometre away from the Azamgarh city and one kilometre away from the main road but that the area is connected to the main road with a motorable road. On this basis we do not also feel satisfied today that the situation is such as would make a public offer of the land by the State Government almost necessarily an empty or still born process, and the circumstances are such that it was not to be expected that financially strong bodies would come forward for the purpose of getting the land in the locality in question,
20. On the question of interim order, Mr. Kazmi submitted that we might make all future actions subject to the result of the writ. We might allow the foundation stone, to be laid. We might make reservation saying that college will go on with its future aefirties with the clear understanding that Court might impose a premium to be paid by the college later on.
21. In our opinion, allowing of steps to be taken in these matters would seriously affect equities. If the foundation stone is laid, if the college is allowed to be built, if students are admitted, it would be impossible for the Court to say that the Government should have invited options from other financially strong bodies also because at that time no Court of equity would be in a position to throw out the Ram Bachan Yadav College. It is quite another matter now to direct the State Government to refund Rs. 2.25 lac to the Ram Bachan Yadav College. Also the seriousness of the case as a test case requires a strong interim order to be passed; if the government can frely dole out land on the basis of only the calculated lease rental as per the formula mentioned above, without any premium at all, thousands of institutions will be approaching the Government for such favours. Before we rule that the Government in its eminent domain or policy making powers can embark upon such doling of land on lease rental only, as calculated above, we must give the matter full hearing on affidavits.
22. As such the interim order granted earlier will continue until further orders of the Court. The respondents No. 6 and 7 being Hon'ble Ministers need not be issued with notice, not at least present. However, Principal Secretary, Education and Principal Secretary to the Chief Minister be noticed; no notice actually need be issued as Sri Kazmi accepts notice for them. Issue notice to respondents No. 8 and 9. Counter affidavit might be filed within one week. Rejoinder affidavit might be filed within a week thereafter.
23. Put up the matter day thereafter.
24. The orders and observations made above shall not prejudice the rights and contentions of the parties at the time of final hearing.