Kerala High Court
Punnayurkulam Grama Panchayat vs C.I. Of Police on 21 July, 2005
Equivalent citations: 2005(3)KLT727
Author: M. Ramachandran
Bench: M. Ramachandran, S. Siri Jagan
JUDGMENT M. Ramachandran, J.
1. A Grama Panchayat is the petitioner in W.P.(C).No. 14928 of 2005. According to them, the third respondent--Musthafa Kamal, acting in defiance, was going on with construction activities in the land appurtenant to G.M.L.P. School, Punnayurkulam, which was in the management of the Grama Panchayat. Under Section 235 X of the Kerala Panchayat Raj Act, the police had a duty to come and help them for enforcing their orders. It is submitted that on 10-05-2005 the Headmistress of the school had addressed the Secretary of the Panchayat about the issue, as could be seen from Ext.P1. Immediately thereon, by Ext.P2, the third respondent had been issued with a stop memo by the Panchayat and they had simultaneously addressed the Sub Inspector of Police, Vadakkekad. Reference is also made to the letter received from the Assistant Educational Officer, Chavakkad requiring the Panchayat to take immediate steps for stoppage of the unauthorised building activities in the school compound. By Ext.P5, the Circle Inspector of Police, Chavakkad had been addressed on 16-5-2005, and shortly thereafter the writ petition had been filed.
2. First and second respondents are Police Officers and they are represented by the Government Pleader. Mr. T. Krishnanunni appeared on behalf of the third respondent.
3. The learned counsel for the petitioner submitted that on two grounds, the reliefs prayed for were liable to be granted. Under Section 5A of the Kerala Education Act (for short, the Act) brought into force from 12-05-2000, the management of the school was to vest in the Village Panchayat. Under Section 5B of the Act, no alienation of land appurtenant to a Government school, vested with a local authority under Section 5A, was to be made and such land was not to be used for any purpose other than educational purposes. Therefore, construction of a residential house in the compound of the school was impermissible. Definition of the term "school" in the Act was an inclusive definition of the land, buildings, play grounds and movable properties came within the definition. Although the school was situated on about five cents of land, the balance properties were used for parade purpose, school meetings and as playground. Restriction, which was liable to be brought by a construction of a residential house, was therefore objectionable. It was also submitted that under Section 235 of the Kerala Panchayat Raj Act, previous permission of the Panchayat ought to have been obtained before a property owner to embark on a construction project and as no permission had been granted for the construction, it was objectionable. The Panchayat authorities have to prohibit such construction and were entitled to get police assistance for enforcement of the orders. Counsel had also relied on a decision of this Court in 2002 (2) KLT 502 (Gopalakrishnan v. The Secretary, Corporation of Kollam), holding that in view of Section 5B the premises of the school was not to be used for any purpose other than educational purposes. The third respondent was to be interdicted from carrying on any construction activities, and in ease of violation, police help was to be afforded.
4. When the Writ Petition had come up for hearing, apart from filing a counter affidavit, it appears that the third respondent had also thought to challenge the impugned orders of the Panchayat, whereby they had sought to prevent the construction activities. W.P.(C).No. 16698 of 2005 came to be filed in the aforesaid circumstances. The State Government had also been impleaded as additional second respondent to the proceedings.
5. According to the petitioner in W.P.(C).No. 16698 of 2005, the steps taken by the Panchayat for prohibiting him from carrying on constructions in his exclusively owned property were clearly misconceived. Mr. Krishnanunni, counsel for the petitioner, submits that even the complaint of the Headmistress of the school dated 10-5-2005 showed that the school was functioning in a building leased out by the petitioner. They had no control or possession over the rest of the properties, at any time. It was not his look out as to whether sufficient open space was there for the school. He traces his title over the properties. He had obtained ownership by a sale deed dated 27-6-2000 for consideration, from his mother. The school building had been leased out for use as a Government school, about 80 years back by his grandfather, the owner of the building. It is submitted that consequent to a partition suit, the school building and property appurtenant had been left to his deceased father. In a money suit against his father, in the year 1975, the property was sold in execution of a decree and the petitioner's mother had purchased the properties from the auction purchaser. He had come to ownership from his mother. Being the owner of the property in his possession, and since he was residing in a rented house, he had thought of building a house in the plot without causing interference to the functioning of the school. Although the Parent Teachers Association of the school filed a civil suit against him, no interim orders were obtained and surreptitious method was being taken so as to put him to inconvenience. It is submitted that neither Section 5A nor Section 5B of the Act had application to the facts of the case and the impugned proceedings of the Panchayat were liable to be set aside.
6. A counter affidavit had been filed by the Panchayat in W.P.(C). No. 16698 of 2005 practically reiterating the contentions raised by them in W.P.(C). No. 14928 of 2005. They refute the allegation that Ext.P2 order had been issued in violation of principles of natural justice. Even if that be the case, the petitioner has a remedy of appeal, as provided under Section 271 of the Kerala Panchayat Raj Act and the Writ Petition was therefore misconceived.
7. When W.P.(C).No. 14928 of 2005 had come up for hearing, the parties had requested that W.P. (C).No. 16698 of 2005, which was connected in all respects, may also be heard along with the above Writ Petition. W.P.(C).No. 16698 of 2005 came to be listed for hearing before us in the above said circumstance.
8. The issue that has been posed by the parties is of some importance and advertence to Sections 5A and 5B of the Act has to be made. Under Section 5A, the management of every Government school and that of aided school taken over or acquired by the Government shall vest in the local authority. Pre-primary schools and primary schools in rural areas are to vest in the Village Panchayat having jurisdiction over the area in which the school is situate. Section 5B of the Act could be extracted as herein below:
"5B. Restriction of alienation of property of Government schools: Notwithstanding anything contained in any law for the time being in force or in any decree, judgment or order of any court, no sale, mortgage, lease, pledge, charge or transfer of possession of any land appurtenant to a Government school vested with a local authority under Section 5A shall he made and such land shall not be used for any purpose other than educational purposes".
The case of the Panchayat is that the vesting arrangement already having been set in, and as the school necessarily takes in not only the building but also the land appurtenant thereto, such land could not have been used for any purpose other than educational purposes.
9. Mr. Krishnanunni, on the other hand, refers to the circumstance that even the Headmistress had no case that there was occupation of the school compound, since the school building alone was being occupied by them. Being a pre-Kerala Education Act/Kerala Education Rules school the stipulations regarding minimum space, with reference to the class rooms, playground etc., were irrelevant, and occupation of the school building alone had been allowed and even if the appurtenant land had been used by the children, that had no legal effect adverse to the possessory right of the landlord. It is asserted that the lessee has not brought in any convincing records to establish any such claims. It is also not disputed that after the advent of the amended Section, on a transfer, he had been recognised as the owner of the property and the lessor. The landlord had alienated 5 cents of land from his total holdings and rightly this had not been subjected to any challenge. According to him, the Writ Petition of the Panchayat [W.P.(C).No 14928 of 2005] was experimental. There was no legal vesting of the properties of the school on the Panchayat at any time and such a transfer could not have happened, even on the terms of Section 5A. Therefore, Section 5B automatically was to be excluded.
10. In this background, we may once again examine the impact of Sections 5A and 5B of the Act. The vesting, as could be gatherable from Section 5A of the Act, is the management of every Government schools in the Panchayath, although according to Sri. Krishnanunni, other consequential proceedings have to be there, in implementation of such a declaration.
11. Reference had been made to Section 15 of the Act, where the Government had reserved the powers for taking over aided schools in a specified area, The expression used was "such schools shall vest in the Government absolutely with effect from the day specified in such notification". Advertence was also made to Section 218 of the Kerala Panchayat Raj Act, where a similar expression had been incorporated in the statute, All public water courses, beds and banks of rivers etc., and also adjacent lands appurtenant thereto were declared as transferred to and vest absolutely in the Village Panchayat. It is pointed out that the expression used was "shall stand transferred to and vest absolutely" and an expression similar thereto is not there under Section 5A of fee Kerala Education Act.
12. We have to notice that the wordings of Section 5A could have been drafted better, so as to give full expression to the underlined objective, but this by itself will not lead to a position that there was no vesting. The term "vested" indicates an act that has become completed and consummated. It cannot be treated as one which is contingent. Therefore, we have to proceed on the basis that there has been a vesting, but the issue is as to what are the rights that have been vested by the provisions of the enactment. We will have to draw sustenance in this context from Section 5B of the Act as well.
13. It is evident that the existence of Government schools, which had been functioning in rented buildings or buildings/premises on lease arrangement might not have been contemplated, when the provision had been incorporated in the Act on 12-5-2000. Further, it is not the school that is vested, but only the management of the Government school. In general terms, it could be argued that the school is defined as not only the school building, but also the land appurtenant thereto. The management also encompasses the management of the premises of the school as well. But, nevertheless a thin line of difference, according to us, necessarily has to be maintained. Section 5A refers to aided schools whose management, is taken for a period of five years, as well, under Sections 14 and 15 of the Act. It is meaningful to note that under Section 14 (5), rent becomes payable to interested persons. Undisputably it could be also subjected to acquisition by paying of market price. The 'vesting' of management therefore cannot have any more meaning than its ordinary sense, as an owner of the school, who had leased out the premises cannot be in a worse state than an aided school.
14. When vesting is spoken about the management of a Government school, we have to notice that at least in the case at hand, what is contemplated is the administration of the School. As referred to earlier, a contemporaneous introduction of Section 5B of the Act and impact thereof, but cannot be overlooked. The said section refers to alienation of property of the Government schools. They speak of schools vested with the local authority under Section 5A of the Act. May be what is contemplated is the property of the Government school. The land appurtenant to the school functioning in a rented premises cannot be considered as property of the Government school, as one cannot ignore the basic and proprietary right of a person, who has full rights over the property. The vesting cannot extinguish any of such rights, and admittedly, the arrangement for payment of rent is uninterruptedly continuing. The lessor therefore is entitled to contend that the land appurtenant has not been vested in the local authority, because of the impact of Section 5A of the Act.
15. But, that is not the end of the story. Insurmountable hurdles are there on the path of the property owner, even now as he is tied up by the restriction brought in by the amendment. Although the expression used in Section 5A is vesting of management, Section 5B makes it clear that land appurtenant to the Government School shall not be used for any purpose other than educational purpose. It is not pleaded that the land is not appurtenant to the school building, and the prohibition therefore has to operate.
16. The petitioner (in W.P(C).No. 16698/2005) has not challenged the constitutionality of Section 5A or Section 5B of the Kerala Education Act, but only the orders of the Panchayat. Therefore, reserving such rights to him, the Writ Petition filed by him is dismissed. W.P.(C).No. 14928 of 2005 will stand allowed. The Police is directed to afford sufficient protection to the Panchayath to enforce its orders. No order as to costs.