Kerala High Court
St. Michael'S Anglo Indian Higher ... vs Station Commander (Land) on 6 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
W.P.(C) NO.13209 OF 2021
PETITIONER:
ST. MICHAEL'S ANGLO INDIAN HIGHER SECONDARY SCHOOL,
KANNUR, REPRESENTED BY ITS PRINCIPAL,
FR. JOHN FRANCIS S.J.,
AGED 55 YEARS, S/O. FRANCIS,
KANNUR-670 001.
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)
E.MOHAMMED SHAFI
RAJ CAROLIN V.
GEORGE POONTHOTTAM (SR.)
RESPONDENTS:
1 STATION COMMANDER (LAND),
DSC CENTRE, P.O. BURNASSERY, KANNUR-670 013.
2 DEFENSE ESTATE OFFICER,
DEFENSE ESTATE OFFICE, JRWA/-2/9, JUSTICE LANE,
JANATHA ROAD, VYTTILA, KOCHI, KERALA-682 019.
3 THE DIRECTORATE GENERAL,
DEFENSE ESTATE (DGDE), MINISTRY OF DEFENSE
HEADQUARTERS, RAKSHA SAMPADA BHAWAN,
ULLAN BATAR MARG, SPORT VIEW, DELHI-110 010.
4 CANNANORE CANTONMENT BOARD,
REPRESENTED BY CHIEF EXECUTIVE OFFICER,
HQ HOSPITAL, P.O. KANNUR-670 017.
5 THE DISTRICT COLLECTOR,
DISTRICT COLLECTOR, OFFICE,
COLLECTORATE ROAD, THAVAKKARA, KANNUR-670 002.
6 THE UNION OF INDIA
MINISTRY OF DEFENSE, RAJPATH, E BLOCK,
CENTRAL SECRETARIAT, NEW DELHI-110 011
REPRESENTED BY ITS SECRETARY.
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W.P.(C) NO.13209 OF 2021
SRI. P.R. AJITH KUMAR, CGC
SRI. GEORGE POONTHOTTAM (SR.)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C) NO.13209 OF 2021
JUDGMENT
Dated this the 6th day of February, 2024 The petitioner is a Higher Secondary School and they impugn Ext.P5 letter issued by the 1st respondent, whereby, a defence land in their front has been cordoned off, stating that it is ear-marked for construction of military facilities. The petitioner asserts that, if Ext.P5 is allowed to operate, they would be left without any access to their school buildings; and this would cause great detriment to the students and staff studying and teaching there. They thus pray that Ext.P5 be quashed.
2. Sri.George Poonthottam, learned Senior Counsel, instructed by Sri.Abdul Raoof - learned counsel for the petitioners, submitted that, though his client cannot seek any vested right over the property of the military, the factum of it being used for no purpose at this time; and since there is a proposal for its development only in future, it does not stand to reason why the 1st respondent should have issued Ext.P5, which -4- W.P.(C) NO.13209 OF 2021 he said is only to frustrate the legitimate aspirations of the students and teachers of the school. He submitted that, if, as stated in Ext.P5, the entire area in front of the school is now cordoned off, then the students would not be even able to enter the school, much less study there, because, even on its western side, there are only private properties, through which, a right of access will not be possible; while, on the eastern side, there is a small road, which is not sufficient for proper access, taking into account the large number of students studying there. He prayed that, therefore, at least until such time as the land in question is not put to use by the military, his client may be allowed to use it, as had been done in the past. He thus reiterately prayed that the reliefs sought for in this writ petition be granted.
3. In response, the learned Central Government Counsel - Sri.Ajith Kumar, submitted that a statement has been filed on record, wherein, it has been explained that the land in question has been classified as "A1 defence land", vide Government of India Order dated -5- W.P.(C) NO.13209 OF 2021 01.06.2020; and contended that, when the said order has not been challenged by the petitioner, it is impermissible for them to seek any right over the area, or even to access it. He submitted that, therefore this writ petition is only an exercise in futility and is experimental in nature; and prayed that it be dismissed.
4. The afore rival position of the parties render is inevitable that, though the petitioner is not seeking any vested right over the property in question, they assert to have been used by them for several years past, now even decades. As argued by Sri. George Poonthottam - learned Senior Counsel, the school at the moment uses the land in question as access from the main road and that they have no space to enter it through the western side, which is bounded by a private property, as prima facie evident from Ext.P1 sketch. The only alternate access now available to the petitioner, as stated by them, is through the road on the eastern side, which is called the "Bellard Road"; and interestingly, Sri. P.R. Ajith Kumar - learned Central Government Counsel, says that it is 5.6 meters -6- W.P.(C) NO.13209 OF 2021 feet in width, with a proposal to widen it upto 9 meters. However, it must be borne in mind that, admittedly, the "Bellard Road" is now only 5.6 feet in width and may not be fully suitable for the purpose of entry to the school by the large number of students, vehicles and such other facilities.
5. As matters now stand, though Ext.P5 says that the property in question has been classified as "A1 defence land", it is also admitted that it has not been put to use by the defence, as of now, for any purpose. Therefore, I see no impediment in the petitioner being allowed to use the land, at least permissibly, until such time as it is engaged for construction activities of the Military; and this has not been answered by the Authorities in their counter pleadings, particularly when they admit the assertion of the School that they have been using the land for their access until Exhibit P5 had been issued.
6. To paraphrase, when the request of the petitioner is limited to the extent that they be allowed to -7- W.P.(C) NO.13209 OF 2021 use the land, at least until such time as it is needed by the defence establishment for further construction and until such time as the "Bellard Road" is effectively widened to an extent of 9 meters, as now stated by Sri. P.R. Ajith Kumar, I am of the firm opinion that the 1 st respondent must consider their request for access through it, after affording an opportunity of being heard to them. This does not the mean that they would obtain any right-either in equity or law - should any such permission be granted, but only that, for the time being, keeping in mind the requirements of the students, some kind of an arrangement can be thought of, if it is possible in law.
7. With the afore perspective in mind, I allow this writ petition, to the limited extent of directing the 1 st respondent to hear the petitioner and attempt some kind of arrangement, whereby, both sides can have their interest adequately protected; however, clarifying that, even if any such be thought of, it cannot construe the nature of any right in favour of the petitioner qua the -8- W.P.(C) NO.13209 OF 2021 land in question, covered by Ext.P5.
8. A final decision in this regard shall be taken by the 1st respondent, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment.
I close this writ petition, recording the submissions of Sri. P.R. Ajith Kumar - learned Central Government Counsel, that even now the students and teachers are allowed to enter the school through the ground in question.
Sd/-
DEVAN RAMACHANDRAN JUDGE bpr -9- W.P.(C) NO.13209 OF 2021 APPENDIX OF WP(C) 13209/2021 PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE ROUGH SKETCH PLAN OF THE PETITIONERS SCHOOL.
Exhibit P2 TRUE PHOTOGRAPH PHOTOGRAPHS OF THE GROUND IN FRONT OF ST.MICHAEL SCHOOL. Exhibit P3 TRUE COPY OF THE PHOTOGRAPHS OF THE BOARD.
Exhibit P4 TRUE COPY OF THE PHOTOGRAPHS OF THE BOARD.
Exhibit P5 TRUE COPY OF THE NOTICE NO. 3001/1/Q1 DATED 17/2/2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF THE ASSIGNMENT DEED DATED 6.6.1956.
Exhibit P7 TRUE COPY OF THE ROUGH SKETCH OF THE LAND OF DEFENSE.
Exhibit P8 TRUE COPY OF THE NEWS ITEM APPEARED IN MALAYALA MANORAMA DAILY DATED 6.1.2022.
RESPONDENTS' EXHIBITS Annexure R1 TRUE COPY OF THE COMMUNICATION DATED 01.06.2020 ISSUED BY THE MINISTRY OF DEFENCE.
Annexure R1(2) TRUE COPY OF THE REPLY DATED 30.12.2020 ISSUED BY THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA.
Annexure R1(3) TRUE COPY OF SUCH COMMUNICATION DATED 07.01.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
-10-W.P.(C) NO.13209 OF 2021 Annexure R1(4) TRUE COPY OF SUCH COMMUNICATION DATED 11.02.2021 ISSUED BY 1ST RESPONDENT TO THE PETITIONER.
Annexure R1(5) TRUE COPY OF THE COMMUNICATION DATED 08.06.2012 ISSUED BY LT. COL.SSO TO H.Q.K. & K SUB AREA [Q].