A. Venkatesan v. The District Collector & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.4.2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 7149 of 2007andM.P. No. 1 of 2007 and 1 and 2 of 2008A. Venkatesan... Petitioner-vs- 1.The District CollectorVellore District2.The CommissionerAmbur Municipality Vellore District3.The Hindu Educational Society Rep. by its Secretary Mr. R. KanthirajM.C. Road, AmburVellore4.State of Tamil NaduRep.by its Secretary to GovernmentMunicipal Administration and Water Supply Fort St. GeorgeChennai ... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Mandamus directing the respondents to take actionsto demolish the unauthorised construction put up by the thirdrespondent.For Petitioner : Mr. T. MohanFor Respondents 1,2&4: Mr. M. Dhandapani, Spl. GPFor Respondent 3: Mr. V.R. RajasekaranORDERK. CHANDRU, J.Heard the arguments of Mr. T.Mohan, learned counsel appearing forthe petitioner and Mr. M. Dhandapani, learned Special GovernmentPleader representing the respondents 1, 2 and 4 and Mr. V.R. https://hcservices.ecourts.gov.in/hcservices/ Rajasekaran, learned counsel for the third respondent and haveperused the records.2.This writ petition is allegedly filed in public interestseeking for a direction to the respondents to take action against theunauthorised constructions put up by the third respondent anddemolish the same. 3.The writ petitioner claims that he was an alumni from thethird respondent school and that he owed his position due to thecontribution made by the School. Therefore, in the interest of thesaid School, he has filed the present writ petition.4.The petitioner earlier came before this Court with W.P. No.1342 of 2006 seeking for the very same relief and this Court, vide anorder dated 10.01.2007, disposed of the said writ petition directingthe petitioner to seek appropriate relief from the Municipalauthorities. The petitioner claims that pursuant to the said order,he had sent a telegram on 13.02.2007 followed by a letter dated15.02.2007 and sought for relief from the second respondent to takeaction. Even before any action could be taken, he has filed thepresent writ petition on 21.02.2007.5.It is rather unfortunate that the petitioner should comeforward with the second writ petition on the very same issue evenbefore any meaningful action could be taken by the second respondent.This attempt of the petitioner is reprehensible and such a writpetition should be dismissed on the sole ground that the petitioner'sattempt in moving the authorities is not bona fide and he justwanted to create a new cause of action to come to this Court.However, since the petitioner states that there is violation of thestatutory provisions found under the District Municipalities Act andalleges that the third respondent had encroached Highways land, weheard the writ petition on merits. 6.In order to show the so-called public interest, at the timeof hearing, the petitioner filed seven supporting affidavits from theother old students of the School by stating that due to constructionof commercial shops in the periphery of the school compound, thespace allotted to the School playground will be shrunk and that thecycle stand run by the Secretary of the school is for commercialpurpose. 7.After notice was ordered in the writ petition, the secondrespondent has filed a counter affidavit in April 2007 by statingthat the third respondent had not obtained No Objection Certificate(NOC) from the National Highways Authority [NHAI] but, however, hehad applied for building licence on 22.7.2005 for construction of ashopping complex and the same was rejected on the ground of non-obtaining of NOC from the Highways Department and that construction https://hcservices.ecourts.gov.in/hcservices/ was done without any building licence. It was also stated that acriminal case was filed before the Court of Judicial Magistrate,Ambur and the third respondent was imposed with a fine of Rs.400/-for the unauthorised construction. It was also stated that thesecond respondent had taken all necessary action in terms of theprovisions of the Tamil Nadu District Municipalities Act and therewas no slackness on their part. 8.The third respondent had filed a counter affidavit statingthat there was no public interest involved in the present writpetition and it was filed solely at the instance of one G. Suresh,who was working as a Post Graduate Teacher in the School and that theSchool had initiated disciplinary action against the said Suresh andthat he was the root-cause for several incidents of indisciplineamong the students. He was also dismissed from service on 18.5.2006and at his instance, suits were filed regarding the internalmanagement of the school and some petitions were filed before theRegistrar of Societies. Even the earlier writ petition filed wasonly with a view to pressurize the management. The petitioner wasset up by the said Suresh. In that view of the matter, they alsotook out an application for impleading the said Suresh as a partyrespondent to the writ petition. 9.A reply affidavit was filed by the petitioner stating thatthe allegation that he was set up by the school teacher Suresh wasmischievous and the correspondences shown by the petitioner wereobtained by having recourse to the Right to Information Act.However, this Court is not inclined in going into the internalsquabble between the parties and the matter could be disposed on thepleadings filed by the respective parties.10.In the counter affidavit dated 10.02.2008, the Secretary ofthe third respondent school had stated that the extra constructionwas done with a view to provide noon meal for the students and alsoto park their cycles. The first floor of the said building wasprovided with an access from the main Highway and the income derivedby letting out the shops constructed in the first floor is to augmentthe resources of educational agency so that better services can beprovided in terms of the objectives set out in its bye-laws. It wasalso stated that in the present construction, the space utilised wasearlier used as a cycle stand and the playground for the schoolexists as it is. It was also stated that they have submitted anapplication in July 2005 to the Municipality for Building planapproval and a sum of Rs. 11,000/- was also paid. A further sum ofRs. 20,000/- was paid towards development charges on 28.9.2005 andtheir application was returned with a view to cure certain defectspointed out by the authorities. It was also stated that theSchool Management is pursuing the authorities with proper complianceand at this stage, the second respondent cannot be directed todemolish the construction already made by orders of this Court. It https://hcservices.ecourts.gov.in/hcservices/ is for the Municipality to consider their application and grantnecessary sanction and the writ petitioner is really a busy-body whois trying to intimidate the school.11.Mr. T. Mohan, learned counsel appearing for the petitionersubmitted that it was rather unfortunate that the School should tryto go in for a commercial complex and the property of the schoolcannot be misused. The playground for the school is an essentialcomponent of educational activities and that it cannot be allowed tobe shrunk by the commercial desire of the Management. He alsoreferred to the provisions of the Tamil Nadu Parks, Play-Fields andOpen Spaces (Reservation and Regulation) Act, 1959 [for short, 'OpenSpace Act'] for the purpose of showing that all play fields of theSchool are covered in terms of Section 2(e) of the Act and,therefore, the playground cannot be used for any other purpose otherthan the purpose for which it has been maintained and if any purposehas to be changed, the previous sanction by the Government isrequired and construction of building in the said playground isprohibited by virtue of Section 8 of the Open Space Act and the ownerof any such playground is obliged to maintain it as a playground notfor any other purpose. 12.Mr. V.R. Rajasekaran, learned counsel appearing for theSchool Management submitted that the Act 26 of 1959 referred to bythe petitioner does not apply to the school in question as it has tobe listed as a play field in terms of Section 3 of the Act and it hasto be published by the Government in Gazette. He also stated thatthe School has been in existence since 1923 and has been providingeducation to boys and girls residing at Ambur and surroundingvillages. At present, it has a strength of 5500 students whichincludes the Higher Secondary School for Boys and Girls and alsoseparate schools for girls and boys. Whatever the society does isonly in the interest of the educational institution run by them.The petitioner, an old student of the school, instead of co-operatingwith the school to enhance its educational excellence, has beenindulging in activities, at the instance of others, to stall furtherprogress of the School. The earlier cycle stand covered with ACsheets in a sliding roof was many times damaged as it was hit bycricket balls and foot balls from the adjacent playground and thepresent attempt is to provide a RCC structure which can also be usedby them as a cycle stand and noon meal centre as well as the upstair(having an entrance from outside) can be used for commercial shopsand the rent derived therein can be used for further improving theschool facilities. 13.Mr. V.R. Rajasekaran also stated that the State Governmentis compensating the salaries of the teachers by granting aid butwith reference to the maintenance of the school including majorrepairs and improvement, they hardly get any assistance from theGovernment. They were also precluded from collecting any amounts https://hcservices.ecourts.gov.in/hcservices/ from the students due to free education. Therefore, the educationalagency running the school will have to augment its resources forcontinued up-keep of the school and there is no commercial motive asalleged by the petitioner as well as some of the old students, whoseaffidavits he had procured to support his cause.14.After careful consideration of the rival submissions, we areof the view that this is not a fit case to be entertained as a publicinterest litigation. After perusing the counter affidavit of thesecond respondent, we also feel that they are taking necessary stepsin terms of the statutory obligation vested on them by the DistrictMunicipalities Act. Further, by interdicting any action eithertaken or to be taken by the authorities, this Court cannot put anyspokes in those actions and direct the authorities to act only in aparticular manner thereby trying to set at naught the discretionvested on the authorities. It is also stated by the thirdrespondent school that they had applied for a building plan and hadalso paid the necessary fees. They also contested the requirement ofobtaining NOC from the Highways authorities as not being required inthe present case since the building is coming within the land ownedby the School. 15.In any event, we cannot prevent the School Management frompursuing their request with the Municipal authorities. Suffice tosay that we do not find that the third respondent was motivated by adesire to commercially exploit the land of the school and since theschool is run by a Society registered under the Tamil Nadu SocietiesRegistration Act and there are inbuilt provisions under the said Actto take action in case of diversion of any funds to any privatehands. The reliance placed upon the Act 26 of 1959 ismisconceived and has no application to the present case on hand.16.Under the above circumstances, we have no hesitation indismissing the present writ petition as being misconceived and devoidof merits. Accordingly, the writ petition will stand dismissed.However, there will be no order as to costs. ConnectedMiscellaneous Petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gri https://hcservices.ecourts.gov.in/hcservices/ To1.The District CollectorVellore District2.The Secretary to GovernmentState of Tamil NaduMunicipal Administration and Water Supply Fort St. GeorgeChennai+ 1 CC to Mr.V.R. Rajasekaran Advocate SR NO.23002+ 1 CC to the Government Pleader SR NO.22943Order inW. P. No. 7149 of 2007AKR(CO)JJM(29/04/08)