A charity school for physically challenged students sought to quash a government decision refusing land premium exemption. The court held that the Cabinet's refusal was a policy matter and dismissed the writ petition.
Impugned decision of the Deputy Secretary is upheld; Writ Petition dismissed.
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W.P.(C) No.10528 of 2005
16. 10.12.2019 Heard.
3.1 Learned counsel for the petitioner placed reliance on resolution No.9716 dated 30.11.1987 (Annexure-7), regarding Government aid for construction of working women’s Hostel and School for blind, dumb and deaf students, clause (a), (b) and (c) of paragraph-2 of which are relevant for adjudication of this case, are re-produced hereunder for ready reference.
“2(a) Transfer of Govt. land free of cost : As per the rule of the scheme, the organization must have its own land. If any organization does not have its own land nor ability to purchase private land on market price there will be provision to provide de then Govt. land. Due to paucity of funds these organizations
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cannot pay salami. So without salami required land will be transferred to them. This facility will be provided to voluntary organizations recommended by Department of Community Development and Rural Reorganization. Even if they get concession from salami, these organizations will have to pay annual tax. Since this process of transfer is time taking, the responsibility to transfer Govt. land to these organizations before getting Govt. recognition is entrusted upon the Collector for rural areas and upon Revenue Commissioner for Urban areas. If the land is not utilized for the purpose for which it has been allotted within a year, th8en it will be considered that the land has come back under Revenue Department.
b) Preparation of map and estimate of cost:-
The map and estimate of cost of these structures will be prepared by the employees of the office of Chief Architect and PWD Department at free of cost. Those organization who cannot undertake such projects, the construction of such projects will be done by PWD Department on the advice of Department of Community Development and Rural Re-organization projected cost will be deposited before PWD Department.
(c) Provision of imparting education to blind, dumb and deaf students in Orissa is very limited. Central Govt. provides financial aid to voluntary organizations for construction of schools for such differently, abled students, but that aid cannot be more than 20% or Rs.50,000/- of projected cost. Even if the rest expenses is provided by State Govt., the facilities mentioned in aforesaid paragraphs(a) and (b) is not provided the provision of imparting education to differently abled students will be slowed down. So, the State Govt. has decided to provide rest expenses as well as facilities mentioned in aforesaid paragraphs (a) and (b).”
In earlier writ petition, this Court in W.P.(C) No.427 of 2004 disposed of on 23.06.2004 had passed the following order.
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“xxxx For the aforesaid reasons, we quash the communication dated 6.5.2002 made by the Tahasildar for the petitioners and direct that the Tahasildar Bargarh will forward the application of the petitioners for settlement of land and request for waiver of premium to the Secretary, Government of Orissa in the Department of Revenue-opp. party No.1 which will be considered by the competent authority of the State Government in accordance with the policy of the State Government with regard to settlement of land in favour of educational institutions and in accordance with the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995 and in particular Section 43 thereof. The aforesaid consideration will be made and final decision will be communicated to the petitioners within three months from the date of receipt of a certificated copy of this order from the petitioner.
The writ petition and all the Misc. cases stand disposed of.”
3.2 Pursuant to order passed by this Court as quoted above, the matter was placed before the Cabinet and the Cabinet unanimously decided not to exempt in view of the fact that the petitionerinstitution is not entitled for exemption of premium under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as would be evident from the counter affidavit filed by the State opposite party No.1.
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of government land to educational institutions either free of premium or payment of concessional premium, which is sought to be relied upon is not applicable to the petitioner-institution. 5. Accordingly, the writ petition fails and stands dismissed as such.
.…….......……………… ( K.S. Jhaveri ) Chief Justice
…………………..……… (K.R. Mohapatra) Judge
ss
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2 issues framed by the court
Whether the petitioner institution is entitled to exemption from payment of premium for the allotted land.
Whether a Cabinet decision refusing exemption is a fit subject for judicial review under Article 226.
Colour shows how this judgement treated each authority
W.P.(C) No.427 of 2004Explained¶14
School meant for Physically Handicapped
Deputy Secretary to Government, Revenue Department
K.S. Jhaveri
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
