Madras High Court
The School Committee Of Devanga Higher ... vs The Commissioner, Coimbatore ... on 28 July, 1997
Equivalent citations: (1998)1MLJ77
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1. The writ appeal has been filed against the order of a learned single Judge of this Court in W.P. No. 16122 of 1994 dated 14.9.1994, dismissing the writ petition on the ground that there is sufficient material to held that the appellant vio-lated condition No. 2 of the gift deed and consequently, the grievance sought to be made against the impugned order that the power of resumption is not available to the respondent in the case on hand, cannot be sustained, since the only point urged by the learned se-nior counsel as a challenge to the impugned order at the time of bearing is not accepted by the learned Judge, the writ petition was dismissed.
2. Aggrieved by the said order, the petitioner filed this writ appeal, and the same was admitted by the First Bench on 17.9.1994 and interim stay of the operation of the order of the respondent in his proceedings dated 5.9.1994, was also stayed.
3. In our opinion, the writ petition is maintainable. When the writ petition was heard and the counsel submitted that the relief sought for is to quash the order of resumption passed by the respondentCorporation, the learned Judge observed that it is a matter which has to be agitated only in a suit and not by way of writ petition. Counsel submitted that the power of resumption is not available to the respondent as the gift has become absolute by construction with running of a school in the property gifted by the Corporation and therefore, the matter can be decided in the writ petition itself. As per clause 2 of Schedule II of the gift deed, the donee covenanted to use the land to be granted only for building a high school and to use the land and the building to be constructed on it for the purpose of a school or college and allied buildings if and when it comes under the management. The appellantmanagement in fact had constructed a school building covering an area of 2 acres and have been running the same from 1948 and complied with the conditions imposed in the above clause. In our view, the power of resumption is given to the respondentCorporation only if the above condition or any part thereof of the above condition is breached or in the event the recognition being withdrawn to the appellant. As there is no breach of condition No. 2, there is no power of resumption as the petitionerassociation becomes the absolute owner. In this background, we shall now consider the case of the rival claims.
4. Under Document No. 13 80 of 1948 an indenture was executed on 14.4.1948 between the Municipal Council of Coimbatore on the one part and Devanga Educational Association, Coimbatore by its present Secretary S.K.P. Ponnuswami Chettiar, Coimbatore and legal representatives and assign on the other part. The doner under the said deed has agreed to transfer the piece of land and premises to the donee as a gift to be used for the purposes of construction and maintenance of an High School subject to the payment by the donee of all existing and further taxes, charges, assessments and ground rent in respect of the same and the donee has agreed to accept the aside price of land and premises subject to the said and other conditions raised in Schedule II. Schedule II of the gift deed deals with the covenance accepted by the donee/appellant which reads thus:
Schedule No. II:
(1) The donee doth also hereby covenant with the donor (1) to erect a stone or brick wall around the tombs to scare them off the land to gifted to us.
(2) To use the land to be granted only for building a high school and to use the land and building to be constructed on it for purpose of a School or College and allied buildings if and when it becomes no under the same management.
(3) That the admission to the High court or College shall be open to pupils of all classes or the pupil without any restriction whatsoever;
(4) That on the breach of Condition (2) or any part thereof or in the event of the recognition being withdrawn the association will hand over them to the Municipal Council the land to be gifted with all the buildings thereon and other appurlenance thereto without claiming any compensation what-soever and the Municipal Council shall have the right to rent and occupy the same as the absolute owner of the property.
(5) That the donee will construct the High School without delay and commence work if possible in June, 1948 or within such extended time as may be granted by the Municipal Council (6) The donee further agrees to give a seat to the Chairman and one of the Councillors other than one belonging to the Devanga Community se-lected by the Municipal Council on the managing Board of Committee of the Institution.
5. Thus the gift of the lands in favour of the appel lantschool was subject to the conditions contained in Schedule II of the gift deed, which are, that the donee may, (i) erect a stone or brick wall around the tombs to screen them off the land to be gifted, (ii) to use the land to be granted only for buildings a high school and to use the land and buildings to be constructed on it for purpose of a school or college and allied buildings if and when it becomes under the same management, (iii) that the admission to the High School or College shall be open to pupils of all classes or the public without any restriction whatsoever, (iv) that on the breach of condition (ii) or any part thereof or in the event of the recognition being withdrawn, the association will hand over them to the Municipal Council the land to be gifted with all the buildings thereon and other appurtenance thereto without claiming any compensation whatsoever and the Municipal Council shall have the right to re-enter and occupy the same as the absolute owner of the property, (v) that the donee will construct the high School without delay and commence work if possible in June, 1948 or within such extended time as may be granted by the Municipal Council, (vi) the donee further agrees to give a seat to the chairman and one of the Councillors other than one belonging to the Devanga Com-munity selected by the Municipal Council on the Managing Board of Committee of the Institution. " 6. It would go to show that in the event of violation of the conditions, the Municipal Council had the power to resume the lands so gifted. According to the appellant, the Institution had not violated any of the conditions of the gift under which the lands were given to the Devanga Educational Institution. In fact, they have applied for permission and recognition for the commencement of preparatory class from 1951-52, since it was felt that it would aid the pupils who were entering is the 6th standard with a good foundation. The Director of Public Instruction, Madras, accorded permission for the opening of preparatory class in the Devanga High School, Coimbatore with effect from 1951-52, and the appellantinstitution accordingly started preparatory classes immediately from 1951-52. In the property so gifted to the Devanga Educational Association, buildings have been constructed covering an area of about 2 acres at a heavy cost in which the Higher Secondary School and preparatory school are being run. It is stated that according to the conditions laid down in the gift deed the Institution is running only a preparatory school and a higher secondary school and pupils are admitted to the institution from the general public without any restriction whatsoever. The school committee, as stipulated in the conditions of the gift had given a seat to the Chairman and one of the councillors (from the Municipal Council) in the managing board of the committee of the institution. The school's strength had gone up over the years and now the High School and Higher Secondary school has a strength of about 1362, having 28 sections and the preparatory school has a strength of 310 students with 6 sections. While so the respondent by their notice dated 28.1.1994 pointed out certain violation which are as follows:
(1) Non-construction of compound wall around the school building;
(2) Contrary to Clause (2) of the gift deed prepa-ratory school was being run.
(3) The Special Officer of the Corporation was not inducted into the committee till 1993.
7. Apart from referring to three violations of the conditions, the Commissioner also stated that the school was permitting conduct of religious activities inside the school premises and the said conduct amounts to administrative excess. The Commissioner also pointed out that installing advertisement hearings inside the school premises will amount to using the property for commercial purposes.
8. The appellantmanagement sent a reply dated 9.5.1994 repudiating the claim of the respondent and pointed out that none of conditions of the gift were violated by the appellant. The respondent passed on order on 5.9.1994 and forwarded the same to the appellant ordering resumption of the land building and calling upon the appellantAssociation to hand over possession within 15 days from the date of receipt of the impugned order. Aggrieved by the said order, the appellant filed the above writ petition as according to them, they have no other speedy or efficacious remedy.
9. In the writ appeal, the respondent filed a counter-affidavit along with the petition to vacate the stay in C.M.P. No. 17634 of 1994 reiterating the same contentions which is raised in the show-cause notice and the order impugned in the writ petition. In paragraph 4 of the counter, it is again repeated that the appellantinstitution is running a preparatory school without any recognition granted by the Educational authorities and the students admitted in the preparatory classes are admitted at the High school level violating the conditions of the grant and depriving the fa-cility of admission to all classes of public without any restriction and the said preparatory school is run on the basis of the collection of fees and with commercial motive, and that the management in venturing upon commercial activities by allowing boarding to be allowed and advertisements allowed on the walls etc. It is also stated that the appellantinstitution is allowing Rotary Club to function from there. Therefore, it is contended by Mr. P.M. Bhaskaran that the said preparatory school without any recognition, is run on the basis of the collection of fees and the students admitted in the preparatory classes are admitted at the high school level, which is in violation of the condition of the gift. Since the explanation offered by the appellant was not satisfactory, the Municipal Council by its resolution dated 1.9.1944 resolved to resume the land for violation of the conditions of the gift deed and the appellant was directed to hand over possession within 15 days.
10. The appellantschool filed a detailed reply affidavit denying all the allegations contained in the order impugned in the writ petition and also in the counter affidavit now filed in the writ appeal.
11. We are of the view that the respondent has no authority to resume the land for the alleged violation said to have been committed by the Management of the school. We have gone through the gift deed and the other relevant documents placed before us by both parties in the typed set and also at the time of hearing. The first condition in the deed of gift reads as follows:
(i) to erect a stone or brick wall around the tombs to scare them off the land...
And not as stated in the counter-affidavit. it is incorrect to state that the condition was to erect a stone or brick wall around the land donated. There are three conditions mentioned in the said deed and on the vio-lation of condition No. 2, the land so gifted was to be returned to the Municipal Council together with all the buildings. As there was no municipal council after 1974, the condition that a seat should be given to the chairman and one of the councillors could not be given effect to. However, in the year 1993, the Man-agement addressed a letter to the Special Officer, Coimbatore Municipal Corporation, dated 10.7.1993 requesting him to send a representative to take part in the ensuing committees meeting in future and fur-ther requested the Special Officer to depute a Consu-lar from a Nondevanga community to participate in the committee meetings. By reply dated 10.8.1993 the respondent has stated that the Collector of the District who was also the Special Officer shall be the representative in the committee meetings. According to the appellant, the management had been regularly sending notices to the Special officer, Coimbatore, but a none of the meetings were ever attended by him. Insofar as the allegation of the respondent that the appellant had started the preparatory school without permission, it is seen from the proceedings dated 25.1.1951 that the Director of Public Instructions accorded permission with effect from 1950-51, in his proceedings Rc. 2363 C3/51 dated 25.1.1951. Earlier, the Government of Madras, Education Department, in G.O. Ms. No. 40, dated 6.1.1951 had passed orders permitting the management to open preparatory classes and directed the Director of Public Instructions to prescribe suitable scales of fees to be levied by the management from the pupils for meeting the expenditure of running such preparatory classes. Later, the Director of Public Instructions had prescribed the fee norms too. The appellant had been running such preparatory school since then. In G.O. Ms. 484 Education dated 24.4.1991, the Government of Tamil Nadu directed all the educational institutions to obtain permission from the State Government for running preparatory classes. On 21.4.1994, the Director of Elementary Education, Madras, accorded permission provision-ally for running nursery and preparatory classes. It is therefore absolutely wrong on the part of the respondent to state that the appellant is running a preparatory school without any recognition and the students are admitted there at the high school level violating the conditions of grant and fee is collected. As earlier noticed, norms had been fixed for collection of fee in the preparatory school by the Director of Pub-lic Instruction as early as 1951.
12. The next charge alleged against the management is that the appellantmanagement is venturing into some commercial activities. Learned Counsel for the appellant has explained as to how the hoardings were allowed to be put up in the premises in question. The hoardings were permitted to be had in favour of two persons, namely, (a) Praveen Arts, and (b) Arts Naga. The above two persons have been accorded permission by the respondentCorporation for the said purpose of having boarding sites. The income derived from the above hoarding sites have been utilised by the appellantmanagement for the school only. Since the appellantAssociation felt the need for having peons in the schools, three persons were recruited from the year 1991 and their salaries are meeted out from the above incomes. Further, the appellant had with the permission of the authorities started a Wing for computer studies and the instructors had been paid salaries from out of the reserve funds. Therefore, it is not correct on the part of the respondent to state that the appellant was running a preparatory school without any sanction since it was accorded sanction provisionally as early as on 21.4.1994 by the Director of Elementary Education.
13. Next learned Counsel for the Corporation has alleged that the appellant school management are run-ning unrecognised elementary section by collecting fee from the students. This contention has also the fail since the same has not been substantiated by any acceptable material. The school is run with the permission of the authorities and fee is collected as per the directions of the authorities. It is stated that the preparatory school was constructed by donations received from Mrs. Vasuki Rajagopal, Anna Nagar, Madras and Mrs. Droupathi Krishnabarathi from Madras. The explanation given by the committee would certainly meet all the queries raised by the respondent in its show cause notice and made it clear that the petitioner had not violated any of the conditions of the gift deed. The action of the appellant was necessitated due to the fact that in the impugned order, it is stated that the gift property would be resumed within 15 days and to protect the interest of the students numbering about 1500. A reading of the order impugned in the writ Petition along with the explanations offered for the show-cause notice would only reveal that the order had been passed without any application of mind. We are of the view that there are no commercial activities as alleged by the respondent and as earlier stated, the income derived from the hordings were also used only for the institution. Further, upon notice issued by the respondent, the appellant "had taken steps to9 remove the hoarding sites. Of the two persons who had hoarding sites, one had vacated and in respect of the other viz., Arts Naga, had instituted a suit in O.S. No. 2155 of 1996 before the District Munsif Court, Coimbatore, for a decree for injunction. It is also stated that the present President of the School Committee donated a sum of Rs. 45,000 when he was the Chartered President of the Rotary Club in 1973 for the construction of a com-munity ball. The Rotary Club alone donated a sum of Rs. 35,000. The Coimbatore Municipality granted sanction for the construction of the Hall. The com-munity hall is named after founder of the school late S.R. Ponnusamy Chettiar. The community hall is exclusively used of the purpose of the school, and the Rotary Club members meet once in a week viz., on Wednesday evenings after the school hours. The community hall is also allowed to be used by the Government recently for the purpose of ration card enumeration work for over a month. It is categorically stated that the school is not collecting any charges from public or from the authorities as the hall is used merely for school and social activities. It is denied that the Rotary Club is functioning from that place. We have already adverted to the conditions mentioned in Schedule-II of the gift deed. We are of the view that permitting the Rotary Club to have their meetings in the premises of the school or the community hall cannot be construed as violation of the conditions of the gift. Likewise, permitting the hoardings inside the school premises cannot also be treated as violation of the conditions of the gift deed. As pointed out by the learned Counsel for the appellant, the income derived from the hoardings are being used only for the institution and for payment of salary to the staff members. In fact, on receipt of the notice from the respondentCorporation, steps were taken to remove the hoardings and one person has already been removed and the other person has has moved the civil court and obtained an order of injunction restraining the Management from removing the hoarding. It is a matter of record that one P. Jagadeesan, the present President of the School Committee, donated a sum of Rs. 45,000 when he was the Chartered President of the Rotary Club and another sum of Rs. 35,000 was donated by the Rotary Club itself. The Rotary Club is only a service organization being community service for the welfare and uplift of the poor and needy. The Rotary Club is not only functioning in our country but all over the world. Under such circumstances, permitting a service organisation like the Rotary Club to have meeting in the premises of the school, after school hours cannot be construed as violation of the conditions mentioned in the gift deed.
14. An over all reading of the affidavit, counter affidavit and the reply affidavit and the order impugned and other connected records would only reveal that the appellant had not violated any one of the conditions of the gift deed and the order of the respondent in directing resumption is wholly unauthorised, un-warranted and incorrect. The records placed before us disclose that the appellant has conformed to such conditions laid down in the gift deed and the respondent does not have any power to resume and is not justified in seeking to resume the lands so donated. Though none of the conditions have been violated, the appellantinstitution in all Fairness have stated in para-11 in the reply affidavit as follows:
The petitioner once again reiterates that it has bene abiding by the conditions of the deed of gift vary diligently and undertakes to strictly follow the conditions of the gift deed dated 14.4.1948 without violating any of the conditions. " The above statement would only disclose that the appellant management is ready and willing to abide by the conditions of the gift deed. The undertaking given by the Management recorded.
15. The writ appeal succeeds. The impugned order is set aside. There will be no order as to costs.