Punjab & Haryana High Court Allows BAAS Educational Trust To Run School On Gram Panchayat Land, Says Dissemination Of Education Is Duty Of Panchayats

The Punjab and Haryana High Court has set aside the orders directing removal of a school building constructed by BAAS Educational Trust on the Gram Panchayat land in Haryana's Gurgaon district

The division bench of Justice Suresh Thakur and Justice Kuldeep Tiwary said the Gram Panchayat concerned has ensured that it makes a complete and efficient management of the school. The court also said that the construction of the school "is not outside the meaningful user" of the Panchayat land under Rule 3 of The Punjab Village Common Lands (Regulation) Rules, 1964.

“Since the Panchayat land(s) is but evidently being used for the said specific purpose, thus the user of the Panchayat land(s) for the construction of a school thereon, by the petitioner-education trust, is well merited, as it does not infringe any of the relevant provisions of Rule 3 of the Rules of 1964, which contrarily permits user of the Panchayat land(s) for the construction of a school building, as has been done thereon, at the instance of the petitioner-educational trust,” said the court.

Background

A group of retired Army officials and foreign nationals formed a trust, called BAAS Educational Trust, with the objective of providing education. Together with the Gram Panchayat of Gairatpur Baas, they established a school for children in nearby areas.

On 13.06.2009, the Sarpanch of Village Gairatpur Baas proposed that the village's Khasra No. 110 (5 killa) be allocated for the school, and the petitioner-Trust be appointed to manage it, with the condition that the ownership of the building constructed by the Trust shall remain with the Gram Panchayat. Again on 25.3.2013, a second resolution was passed which was duly recorded in the Panchayat proceeding book, but, with some amendments in the terms and conditions qua construction and running of the school.

Thereafter, the resolution was forwarded to the office of Block Development and Panchayat Officer (BDPO), Sohna, District Gurgaon, who further sent it, with certain recommendations, to the Deputy Commissioner, Gurgaon on 14.3.2013.

The recommendations made by BDPO were then forwarded by the Deputy Commissioner to the Director General Panchayat, Haryana, Chandigarh. Eventually, the matter was presented to the Additional Chief Secretary, Department of Development and Panchayat, Haryana, who strongly opposed the transfer of shamlat land of Panchayat to a private or commercial entity, and directed the Deputy Commissioner to clarify the approval status of the school building construction by the petitioner on Gram Panchayat land. He further ordered the removal of the alleged illegal construction by the petitioner-Trust within 15 days.

The Deputy Commissioner, with the guidance of BDPO, followed the directions passed by the Additional Chief Secretary and directed the removal of the building constructed by the petitioner-Trust on the Gram Panchayat land.

The petitioner-Trust, dissatisfied with the orders of Additional Chief Secretary and subsequent orders, thus, approached the High Court for the quashing of these orders, and, sought that a mandamus be made upon the respondents for granting approval for the running of the school to it, especially keeping in view the resolution passed by the Gram Panchayat on 13.6.2009.

Judgement

Upon examining the resolution, the bench observed that within the domain of Section 21(XIII)(2) of the Act of 1994, the Gram Panchayat concerned has ensured that, thereupon, it makes a complete, and, efficient management of the petitioner-school.

"Resultantly, also in the making of the resolution (supra), there is no departure from the statutory duties (supra), as become cast upon the Gram Panchayat concerned. As a sequel, it would not be in the interest of the students, who have been admitted in the petitioner-school, and, who are being imparted qualitative education, that an order for demolition, as challenged before this Court, is being enforced, as thereupon, prejudice would be caused to the academic pursuits of the school-going children in the petitioner-school, especially when they are being imparted qualitative education therein."

The bench held that if the Gram Panchayat has allowed the construction of a school on the disputed land, which falls under the category of 'Gair Mumkin Johar' or 'Gair Mumkin Pond,' and the petitioner's school is already established there, then the Supreme Court's decision in Jagpal Singh and others vs State of Punjab and others provides leeway for the government to regularize an existing public utility, such as a school or a dispensary, on such land.

"Resultantly, the above made exception against the user of ‘Gair Mumkin Johar’ land, or, ‘Gair Mumkin Pond’ land, for purpose(s), other than the earmarked purpose(s) thereof, does work in favour of the petitioner, as it has raised the school, which is providing the best qualitative education to the students concerned," said the court, adding such a change of land user falls within the exceptions

The bench also said that since ownership of the land vests with the Gram Panchayat concerned, no approval for any lawful alienation is either required to be asked for, nor is required to be accorded.

"Significantly, as stated above, for reason (supra), there is no impermissible change of user of the petition land(s), at the instance of the petitioner-educational trust. Therefore, the construction of a school building, as made on the petition land(s), still owned by the Gram Panchayat concerned, does not require qua the said construction being demolished,” it added.

The bench also observed that it is the bounden obligation of the Gram Panchayat to ensure an effective control and management of the school concerned, especially when it has continued to retain ownership over the land. 

"However, for ensuring that a more effective control over the petitioner-school is assumed, by the Gram Panchayat concerned, it is deemed imperative to direct that the Board of Trustees, though shall comprise of 7 members, but, 4 of them shall be from the Gram Sabha, and, 3 shall be nominated by the BET. Moreover, the Chairman of the School Committee shall also be the Sarpanch of the Gram Panchayat concerned," said the court.

Furthermore, the bench directed the funds, or, the income derived by the school/education trust, are to be also utilised, not only for the educational activities in the school, but, is also to be meaningfully utilised for ensuring further asset building of the school.

“Therefore, for ensuring that the above meaningful purposes are achieved, rather a direction is required to be made upon the petitioner-school, to ensure the makings of quarterly audits of the incomes, and, funds of the petitioner-school, but by a qualified, and, licensed Chartered Accountant. The audit report shall be placed before the Board of Trustees, who, on scanning the said audit report, shall proceed to, through a Resolution passed, ensure that the proceeds, if any, derived by the petitioner- school, shall become utilized for increasing the assets of the school, and, also for improving the quality of education purveyed to the students,” the court said further. 

Case Title: BAAS EDUCATIONAL TRUST, GBP SCHOOL, GAIRATPUR BAAS vs. THE STATE OF HARYANA AND OTHERS Civil Writ Petition No. 12593 of 2015

Counsel for the Petitioners: Mr. Neeraj Gupta, Advocate

Counsel for the Haryana of Haryana: Mr. Raman Sharma, Addl. Advocate General

Counsel for respondent no. 4: Mr. Rajinder Chokkar, Advocate

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