Kerala High Court
The Alleppey Bar Association vs The District Collector
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934
WP(C).No. 3276 of 2012 (H)
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PETITIONER(S):
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THE ALLEPPEY BAR ASSOCIATION,
THONDANKULANGARA P.O., ALAPPUZHA,
REPRESETNED BY ITS PRESIDENT ADV. P.ROY.
BY ADV. SRI.B. PRAMOD
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR,
ALAPPUZHA-688 001.
2. THE TOWN PLANNER,
DISTRICT TOWN PLANNING OFFICE, AMC 27/285
THIRUVAMBADY, PAZHAVEEDU P.O., ALAPPUZHA-688 001.
R1 & R2 BY SR.GOVERNMENT PLEADER SRI. SHYSON P.MANGUZHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
WPC.NO.3276/2012 H
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGE OF THE MEMORANDUM OF
ASSOCIATION OF THE PETITIONER ASSOCIATION.
EXHIBIT P2: TRUE COPY OF THE ORDER DATED 08-10-2003 OF THE 1ST
RESPONDENT.
EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 03-12-2011 SUBMITTED
TO THE 1ST RESPONDENT.
EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 09-01-2012 SUBMITTED
TO THE 1ST RESPONDENT.
EXHIBIT P5: TRUE COPY OF THE LETTER DATED 01-02-2012 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P6: TRUE COPY OF THE LETTER DATED 19-02-2010 ISSUED BY THE
MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION,
GOVERNMENT OF INDIA.
EXHIBIT P7: TRUE COPY OF THE RELEVANT PAGE OF THE GUIDELINES ON
MPLAD SCHEME.
RESPONDENTS' EXHIBITS:
R1(A):COPY OF THE COMMUNICATION NO.1525/09/DPO/MPLADS DTD.20/12/2011
ISSUED BY THE DISTRICT PLANNING OFFICER TO THIS RESPONDENT.
/TRUE COPY/
P.S.TO JUDGE
Kss
ANTONY DOMINIC, J.
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W.P.(C) NO.3276 OF 2012(H)
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Dated this the 29th day of March, 2012
J U D G M E N T
Petitioner is the Alleppey Bar Association. They filed this writ petition aggrieved by Ext.P5, an order passed by the District Collector, rejecting Exts.P3 and P4 representations made by them.
2. Briefly stated, the facts of the case are that the petitioner is a company incorporated under the Travancore Companies Act, ( Act IX of 1114), which is governed by Ext.P1 Memorandum. The membership of the association is confined to the Advocates practising in the courts located at Alappuzha. According to the petitioner by Ext.P2 proceedings of the District Collector, administrative sanction was accorded for the construction of a Public Law Library building managed by the petitioner, at an estimated cost of Rs,.12,71,000/- under the Member of Parliament Local Area Development Scheme ( MPLADS).
WPC.No. 3276/2012 :2 :
3. Accordingly, the building was constructed by the Nirmidhi Kendra and was handed over to the petitioner Association for the purpose of maintenance and management. In terms of the scheme which governs the MPLAD Scheme, the Association is required to meet the expenses for the maintenance of the building. According to the petitioner, once the building was handed over, they set up a law library, and that even thereafter, about 500 square feet area of the building is remaining unoccupied. Therefore in order to generate the necessary funds for the upkeep of the building and also in order to be beneficial to its members and the other general public, the petitioner proposed to lease out 50 square foot area of the building for installing an ATM counter. Therefore, they submitted Ext.P3 and Ext.P4 representations to the District Collector who considered their request in the light of a report of the District Planning Officer. Thereafter the District Collector issued Ext.P5 communication, informing the petitioner that in view of the paragraph 3.21 of the MPLAD Scheme the request cannot be WPC.No. 3276/2012 :3 : allowed. It was there upon that this writ petition was filed, seeking to quash Exts.P5 and to direct the first respondent to grant the permission sought for by the petitioner as per Exts.P3 and P4.
4. A statement has been filed on behalf of the first respondent. In the statement also what is relied on is clause 3.21 of the guidelines, a copy of which has been produced by the petitioner as Ext.P7. From the pleadings therefore, the only question that arises for consideration is whether, the request of the petitioner is permissible in the light of Ext.P7, which contains the clause 3.21 of the scheme framed by the Government of India. Cllause 3.21 of the guidelines, in so far as it is relevant, reads thus.
"If at any time, it is found that the asset created with MPLAD Scheme is not being used for the purpose for which the asset as funded, the State/UT Government may take over the asset and proceed to recover from the Society/Trust, the cost incurred from MPLADS for the creation of asset along with interest at the rate of 18% pet annum calculated with effect from the date of use of MPLADS fund for the works concurred."WPC.No. 3276/2012 :4 :
5. A reading of this provision shows that, if after construction of a building it is found that asset created is not used for the purpose for which the asset was funded, the State may take over the asset and proceed to recover from the recipient of the fund, the costs incurred with interest. Therefore what is to be seen is whether with the installation of an ATM, the asset created can be said to be not used for the purpose for which the same was funded or created. On such examination, if it is found that the asset created is not being used for the purpose for which it is funded, the state can take over the asset and also recover the costs incurred by them.
6. Facts pleaded in the writ petition show that the asset created in this case is the building where the Public Law Library at Allappuzha is set up. Nobody has a case that the building is not used for the purpose of the library. On the other hand, the case of the petitioner is that in addition to the area being used for the purpose of the library, there is an unoccupied portion of the building and a portion thereof can be made use of for the WPC.No. 3276/2012 :5 : purpose installing an ATM counter. Therefore this is not a case where the asset created under the scheme as such is proposed to be made use of for a purpose different from the purpose for which fund was allotted. This is a case where the petitioner proposed to make use of the assets in a more beneficial manner and without in any manner affecting the functioning of the library.
7. In that view of the matter, I am unable to agree with the first respondent that by permitting the petitioner to lease 50 square foot area of the building for the installment of an ATM counter, would be a violation of clause 3.21 of the guidelines. Therefore, I set aside Ext.P5 and direct the first respondent to accord necessary permission as sought for by the petitioner in Exts.P3 and P4 representations.
8. However, such grant of permission will not enable the petitioner to make use of any other part of the building for any other purpose and the use of the building shall be subject to monitoring by the District Collector and in case of any diversion, it will be open to the District Collector to take WPC.No. 3276/2012 :6 : appropriate action in terms of the Scheme.
Writ petition is disposed of as above (ANTONY DOMINIC) JUDGE vi/