Vairam Matriculation Higher Secondary School v. The Managing Director Tamil Nadu Housing Board & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.10.2008C O R A MTHE HONOURABLE MR. JUSTICE K.CHANDRUWrit Petition No.542 of 2004and W.P.M.P.No.537 of 2004Vairam Matriculation Higher Secondary School, Rajagopalapuram,Pudukottai, Represented by its Secretary.. Petitioner-Vs.-1. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai – 600 0352. The Executive Engineer / Administrative Officer, Trichi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 0203. The Assistant Engineer Tamil Nadu Housing Board, Tiruchi Housing Unit, Pudukottai – 622 0014. The Allottee Service Manager Tiruchi Housing Unit Kajamalai Colony Tiruchirapalli – 620 020.. RespondentsPrayer:- Writ Petition filed under Article 226 of the Constitutionof India praying for the issuance of a writ of certiorari to call forthe records leading to the impugned proceedings of the secondrespondent in his Letter No.R.1/3170/2002 dated 16.12.2003 inpursuance of the letter No.R.1/2279/97-3 dated 15.04.2002 followed bythe letter of the fourth respondent in Letter No.R.1/2279/97 dated23.04.2003 and quash the same. For Petitioner :Mr. T.V.Ramanujam, Senior Counsel, for Mr. T.V.Krishnamachari For Respondents :Mr. A.Vijayakumar- - - https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner is a Matriculation Higher Secondary Schoolsituated in Rajagopalapuram at Pudukottai. The petitioner hadentered into a lease-cum-sale agreement with the first respondent-Housing Board dated 31.10.1988. Condition No.19 of the saidagreement reads as follows:-“19.The school management should as for possible spare theplay ground to the residents of the colony to conductsports events without affecting the interest of the school”Pursuant to the said agreement, a sale deed was entered into and on15.06.1994 with the Allottees Service Manager, TiruchirappalliHousing Unit. The recital portion of the sale deed reads as follows:-“WHEREAS THE PURCHASER was allotted the schedule mentionedproperty under a LEASE CUM SALE Agreement entered into byhim with the vendor on condition that the allotted schoolsite should not be utilised for any other purpose notconnected with education like putting up shops etc., WHEREAS the vendor an purchaser herein have mutually agreedto effect this of Absolute Sale of the Scheduled mentionedproperty for a total price consideration of a sum ofrespondent.13,974/- (Rupees Thirteen thousand nine hundredand seventy four only) towards the plot cost andrespondent.5,72,676/- (Rupees Five lakhs seventy twothousand six hundred and seventy six only) towards thedevelopment charges for 50% area only. The remaining 50%area is allotted on free of cost for playground for theutilisation of the school as well as to the residents ofthe colony to conduct sports events” (Emphasis added)2. According to the respondents-Board, the petitioner’s schooldid not adhere to the condition of making the school ground foroutsider’s use. They have also put up a compound wall with a gate andhad kept the ground closed with a lock and key. In view of theviolation of that condition, by a notice dated 15.04.2002, thepetitioner’s school was informed that since they have put up acompound wall and as it cannot be used by others it was contrary tothe Government Order in G.O.Ms.No.622 Housing dated 26.09.1994. Theywere also asked to remove the compound wall. Since they have notremoved the compound wall they were slapped with a notice dated16.12.2003 asking them to pay a sum of Rs.21,97,004/-. It is thisorder which is under challenge in this writ petition.3. The petitioner’s school through various correspondences hadstated that they have not violated the conditions agreed to betweenthe parties and the school has also been giving usage of play groundfor outsiders on request without detriment to the interest of the https://hcservices.ecourts.gov.in/hcservices/ school. It was also reiterated in paragraph 7 of the affidavit. Theyhave also stated that putting up of the compound wall is in theinterest of safeguarding the property of the school, so that, itcannot be encroached upon or misused by third parties. It was alsoalleged that it was not a condition in the sale agreement or in thesale deed and it should not be used as a reason to demand payment asif the school had to purchase the land with market value. The schoolhad also stated that they have not violated any conditions of theallotment and even now it is being put to use by others.4. On notice from this Court a counter affidavit has been filedby the respondents dated 08.04.2005. In response to paragraph 7 ofthe affidavit, in the counter affidavit it is stated that a compoundwall has been put up around the playground and as it was kept underlock and key preventing the local residents from having free accessto the playground. It is rather surprising that the Housing Boardshould come with such a stand. In the agreement of sale, as extractedalready, all that the School had committed to abide by was as foundin in paragraph 19 of the agreement was that as far as possible theywill spare the playground to the residents of the colony forconducting sports events without affecting the interest of theschool. 5. Even in the sale deed it is only in the preamble portion it isstated that the playground is for the utilisation of the school aswell as to the residents of the colony to conduct sports events.Therefore, the present counter affidavit travels beyond the originalagreement as well as the sale deed executed by the School. Evenotherwise the petitioner-school is also bound to follow theconditions of Recognition granted to run the school as per the TamilNadu Recognized Private Schools (Regulation) Rules, 1974. Rule No.9deals with recognition. The condition relating to the schoolplayground is provided under Rules 9 (j) and (jj) and it reads asfollows:-“9.Recognition.-.......(j) The premises of the school or subsidiary buildingappertaining to it or a playground or a vacant sitebelonging to the school, whether adjacent to or remote froit, shall ordinarily be used for the purposes of conductingthe school or for functions conducted by such schools or forauthorised examinations or for other purposes specificallypermitted by the Chief Educational Officer.(jj) The use of the building and other properties includingthe playground of any recognised private school forconducting drill or training with or without arms by personswho are students or members of the staff of the school shallnot be permitted by the management under any circumstances” (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ Therefore the school has to follow the conditions imposed by theTamil Nadu Recognized Schools (Regulation) Act and the Rules framedthereunder. It must be noted that the violation of the condition laiddown in the sub-rules quoted above will entail the withdrawal of therecognition granted to the school.6. The very Rule itself states that the school playground can beused is for the purpose of conducting the functions of the School orby such schools or for other purposes specifically permitted by theChief Educational Officer. Therefore, the school having agreed toabide by the conditions in the sale agreement also will have to obeythe conditions of Recognition granted by the Department. In thepresent case, the vague statement they are not allowing outsiders isstoutly denied by the School. They have also enclosed arepresentation made by the residents of the locality addressed to theManaging Director, TNHB, stating that they are allowed the usage ofthe school playground and it was also given to Rotary Club JuniorChamber, Arivoli Iyyakkam and other NGOs for using the schoolplayground.7. It is in this context Mr.T.V.Ramanujan learned senior counselfor the petitioner referred to an earlier order of this Court inW.P.No.7181 of 1997 in Arya Samaj (North) Trust Board v. ManagingDirector, Tamil Nadu Housing Board, Nandanam, Chennai – 35 andanother dated 16.11.2001. In that Writ Petition, in similarcircumstances, this Court took exception to the respondents-Board ininterfering with the utilisation of the school ground on the basis ofvague allegations. In that case also the question of construction ofcompound wall was raised as a violation of condition by therespondents-Housing Board and it was frowned upon by this Court.8. In these circumstances, there is no justification for therespondent to allege that there was violation of the condition ofsale thereby making the school to make good the amount as demanded bythe impugned notice. The impugned notice making a demand on theschool to pay the cost of the ground value is arbitrary. Accordingly,the Writ Petition stands allowed and the impugned order standsquashed. Connected WPMP is closed as not necessary. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srk https://hcservices.ecourts.gov.in/hcservices/ To1. The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai – 352. The Executive Engineer / Administrative Officer, Trichi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 0203. The Assistant Engineer, Tamil Nadu Housing Board, Tiruchi Housing Unit, Pudukottai – 622 0014. The Allottee Service Manager, Tiruchi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 020+ 1 CC To Mr.T.V.Krisnamachari, Advocate SR NO.58171+ 1 CC To Mr.A.Vijayakumar, Advocate SR NO.58352W.P.No.542 of 2004 andW.P.M.P.No.537 of 2004RL {CO}TP/31.10.08