Kerala High Court
Suo Motu vs State Of Kerala on 28 March, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
W. P. (C) No. 3682 of 2022 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944
WP(C) NO. 3682 OF 2022
PETITIONER/S:
SUO MOTU
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695001.
3 DIRECTOR OF GENERAL EDUCATION
DIRECTORATE OF PUBLIC INSTRUCTION, VAZHUTHACAUD -
POOJAPURA ROAD, JAGATHY, THIRUVANANTHAPURAM
695014.
4 THE CHAIRMAN
CENTRAL BOARD OF SECONDARY EDUCATION, SHIKSHA
KENDRA, COMMUNITY CENTRE, PREET VIHAR, DELHI
110092.
5 THE SECRETARY
KANDALLOOR GRAMA PANCHAYAT, ALAPPUZHA 690559.
BY ADVS.
K.P.SATHEESAN (SR.) FOR R5
K. P. HARISH, SR. GP FOR R1 - R3
S. NIRMAL FOR R4
P.MOHANDAS (ERNAKULAM)
K.SUDHINKUMAR
S.K.ADHITHYAN
SABU PULLAN
GOKUL D. SUDHAKARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 3682 of 2022 -2-
JUDGMENT
S. Manikumar, C.J.
Based on a petition submitted by Sri. V. Vinod Kumar, who claimed to be an activist, alleging unauthorized construction of Janashakthi Public School, Alappuzha, Secretary, District Legal Services Authority, Alappuzha, was directed by the learned Judge in-
charge of general complaints / petitions / PIL matters, to visit the site, talk to the school authorities and file a report.
2. Accordingly, Secretary, KeLSA, has forwarded the report submitted by the Secretary, DLSA, Alappuzha. Gist of the report is as follows:-
a) The school has 540 students and 45 staff and other non-
teaching staff members. The school is a four storied building.
b) The 4th floor is newly constructed and is covered with tin sheet and is vacant. It is to be a mini library and experimental labs.
Classrooms are functioning in the first 3 floors.
c) The school has no building number and electricity was allotted through temporary permit obtained from the Panchayat W. P. (C) No. 3682 of 2022 -3- Authorities.
d) The extent of school is not properly demarcated and the school officials are of different opinions regarding the same.
e) No documents were produced to prove the ownership and extent of the total land. A case regarding ownership of land is pending with a temple committee.
f) The school is not recognized by the State Government and runs primary classes on the basis of a 'Non Objection Certificate' received in 2003.
g) The Panchayat has instructed school to install lift facility and security measures. Lift is installed and they are awaiting NOC from Fire and Safety Department.
h) The building is not insured. The claims of the officials were not supported by documents.
3. Thereafter, on administrative side, orders have been issued to initiate a suo motu public interest writ petition by the High Court, in the matter of unauthorized construction of school buildings in the Janashakthi Public School, Alappuzha, and thus, the instant writ W. P. (C) No. 3682 of 2022 -4- petition.
4. When the matter came up for admission, we directed the respondents to file their response.
5. Pursuant to the above, on behalf of the Director of General Education, Directorate of Public Instruction, Thiruvananthapuram, the 3rd respondent, a statement of facts dated 02.03.2022 has been filed, which reads thus:-
"2. At the very outset it is submitted that the Department of General Education is the authorized body to grant Non Objection Certificate (NOC) to the unaided schools. For the purpose of obtaining NOC the schools must submit an application to the concerned District Educational Officer, along with supporting documents as mentioned in G.O. (Ms).No.22/2019/G.Edn dated 01.03.2019. Thereafter, the District Educational Officer visits the respective schools and ensures that the school has the basic amenities and then forwards the application to this office along with recommendation.
Subsequently, the application will be examined and if it is found proper, it will be submitted to the Government. The Fitness Certificate is issued to schools by the concerned local authority and it is mandatory for schools to obtain Fitness Certificate every year.
3. It is submitted that the Janasakthi Public School is a CBSE affiliated school and is under the jurisdiction of District W. P. (C) No. 3682 of 2022 -5- Educational Officer, Mavelikkara. The Kandallur Janasakthi Public School obtained NOC in the year 2003 vide order No.29946/N3/2003/G.Edn dated 18.06.2003. The school has received CBSE Affiliation from 25.06.2007 and it has been extended till 31.03.2025 (Afiliation No.930505).
4. It is pertinent to note that the Kandallur Janasakthi Public School has not submitted any application before District Educational Officer, Mavelikara till date for obtaining recognition for its classes from 1 to 8."
6. Secretary, Kandalloor Grama Panchayat, the 5 th respondent, has filed a detailed counter affidavit, wherein, it is stated that though the construction of the building was unauthorized, subsequently, by considering Ext. R5(e) dated 23.10.2018, an application submitted for regularization, compounding fee has been levied, and on payment of the same, the District Town Planner, Alappuzha, has granted permission for regularization of the construction, subject to certain conditions.
7. Relevant paragraphs of the counter affidavit filed by the Secretary, Kandalloor Grama Panchayat, the 5th respondent, are extracted:-
W. P. (C) No. 3682 of 2022 -6-"2. The school has already obtained a No Objection Certificate in 2003 from the Government. In the year 2013 another No Objection Certificate from District Educational Office was given by which the school has got CBSE affiliation. Accordingly, the school is conducting CBSE classes with the approval of CBSE (Affiliation No. 930505 in Ward No. IV of Kandalloor Panchayath in Alappuzha District).
3. It is true that now the school has constructed a four storied building without obtaining any building permit from the Panchayath. Therefore the construction made by the school authorities was unauthorized. However, during the year 2018 the Secretary of the Janasakthi Public School submitted an application for regularization of the unauthorized construction. The application was forwarded to the Assistant Engineer, L.S.G.D. of the Panchayath for verification and report. On verification of the building in question the Assistant Engineer reported that the construction is made in violation of the Building Rules. Therefore, the regularization as requested by the school authorities was not given by the Panchayath. No building number is given to the existing building.
4. Thereupon the Secretary of the school submitted an application before the District Adalath for regularization. The Adalath at its meeting held on 27-07-2019 allowed the Secretary to submit an application for regularization since the construction was made prior to 31-07-2017 and in view of G.O. (P)No.12/2018/LSGD dated 15-02-2018 the regularization is permissible.W. P. (C) No. 3682 of 2022 -7-
5. On the basis of Ext. R5(a) decision the Secretary of the school again submitted an application to the Panchayath for regularization of the unauthorized construction. The Secretary of the Panchayath forwarded the application to the District Town Planner for appropriate action.
6. The District Town Planner gave a letter to the Secretary of the Panchayath intimating the defects in the application submitted by the school authority. Nine defects are pointed out by the District Town Planner, Alappuzha. If a revised application is submitted after rectifying these defects, the same may be forwarded for appropriate action.
7. Pursuant to Ext. R5(c) letter of the District Town Planner, Alappuzha this respondent gave a letter to the Secretary of the school pointing out the defects in the application as notified by the District Town Planner and also directing them to re-submit the application after curing all the defects.
8. Accordingly, the Secretary of the school gave a revised application rectifying all the defects noted by District Town Planner.
9. The newly revised application submitted as per Ext.
R5(e) was forwarded to the District Town Planner, Alappuzha for necessary action. The District Town Planer, Alappuzha after considering Ext. R5(e) application gave permission for regularization of the unauthorized construction. An amount of Rs. 1,62,929/- was imposed as compounding fee. The District Town Planner granted permission for regularization of the construction subject to certain conditions. The conditions are:
W. P. (C) No. 3682 of 2022 -8-(a) The regularization shall be ordered only after collecting the compound fee contained in Appendix-I in G.O. (P) No. 12/2018/LSGD dated 15-02-2018.
(b) The compounding is charged on the basis of the fair value fixed by the Government published in the NET. But it is directed that the concerned Secretary of the Panchayath shall take steps for regularization only after the amount suggested in the regularization order.
(c) As per Rule 104 of KPBR 2011 the Secretary of the Panchayath should ensure that sufficient facilities are provided for physically disabled persons.
10. The Secretary of the school informed that they have complied with all the conditions stipulated in Ext. R5(g). That is they are ready to pay the compounding fee and also they are prepared to provide facility for physically disabled person. Accordingly, the school authorities have already installed a lift in the school building. But so far the school authorities have not obtained NOC from Fire and Rescue Services. Hence the unauthorized construction is not so far regularized and the building in question is not given any number by the Panchayath. It was informed by the school authorities that they have applied for NOC from the Fire and Rescue service and as soon as NOC is obtained they will submit the same to the Panchayath. If all the documents are proper and the conditions stipulated by the Town Planner are satisfied the Panchayath is to regularize the unauthorized construction in the light of the relevant Government orders after collecting necessary compounding fee."
W. P. (C) No. 3682 of 2022 -9-8. It is also relevant to extract Ext. R5(a)(1) proforma submitted for regularization and the decision taken in the Adalat, which reads thus:-
"Proforma -1 District : Alappuzha File Number (DDP Office) : C1-1849/18(153) date 26.07.2019 Name of the Grama Panchayat : Kandalur Grama Panchayat The place where the Adalat took place : Punnapra North Grama Panchayat Community Hall Date of Adalat : 27.07.2019 Name and address of the applicant : Chandran Pillai, Secretary, Janashakthi Public School, Puthiyavila 9447866823 Reference File number :
A2-5678/18 (Grama Panchayat) The nature of the application : Permit / Numbering Decision taken in the Adalat It appears that the building was completed before 31/07/2017 and can apply for regularization as per G. O. (P) No. 12/2018/LSGD dated 15/02/2018. It was decided to direct the applicant to submit the application for regularization of the building as per notification and to send the application to the Hon'ble Town Planner for examination and follow up.
(Signed) (Signed) (Signed)
Sub Collector District Town Planner Deputy Director of Panchayat
Alappuzha Alappuzha Alappuzha
(Signed) (Signed) (Signed)
Principal Agriculture Officer Secretary Assistant Engineer
Alappuzha Kandalur Kandalur
Grama Panchayat Grama Panchayat"
W. P. (C) No. 3682 of 2022 -10-
9. By Ext. R5(c)(1), Town Planner, Alappuzha, has noticed certain defects in the application.
10. Ext. R5(e) is an application for regularizing unauthorized construction submitted to the Secretary, Kandalloor Grama Panchayat, the 5th respondent.
11. After considering the rectified application, orders have been issued regularizing the alleged illegal construction by Ext. R5(g)(1) and the same reads thus:-
"Urban Planning Department Urban Planning Office, Alappuzha Order of the District Town Planner Sub:- District Town Planning Office. Alappuzha - Kerala Panchayat Building Construction (illegal Construction Regularization) Rules, 2018.
Summary District Level Committee considering Local Government Department to regularize illegal constructions completed on or before 31/07/2017 Alappuzha District Kandallur Grama Panchayat issues permission to the Kandalur Grama Panchayat Secretary to regulate the illegal construction of 2 buildings belonging to the education category in Kandalur Village.
Order No. TCPALP/1170/2019-C/KDS. Dated 04/01/2020 Reference-1) Order No. G.O (P) No.122018/LSGD dated 15/02/2018.W. P. (C) No. 3682 of 2022 -11-
2) Letter No. A2/4154/2019 dated on 25/11/2019 from Kandalur Grama Panchayat Secretary.
3) Decision of the District Level Committee dated 19/12/2019.
.....................
Order Kallur Grama Panchayat, Karthikapally Taluk, Alappuzha District, Kandalur Village Survey No. 140/5-2-2,140/6-1,140/6- 2,147/3-2, 147/1-2, covering an area of 76901.00 sq.M, 1909.4.00 sq. M. for regularization of construction of 4 storey and 1 storey educational building covering an area 443.08 sq M. As per reference (2) of the application submitted by Mr. Chandran Nair, the recommendation has been submitted to the Kandalur Grama Panchayat Secretary Forum IB for permission for regularization. The application, Form 14 and Form 13 were examined and the technical recommendation was recorded in Form 1C and submitted to the Town Planner, Alappuzha District Committee for consideration.
Kerala Panchayat Building (Regulation of Illegal Construction) Rules, as per the powers granted by Rule 6 (10) of 2018, the District Level Committee has decided to regulate the payment of Compounding Fees 162929/-(one lakh sixty two thousand nine hundred and twenty nine rupees only) subject to the said building subject to the following conditions Terms
1. G.O(P) No 12/2018/LSGD dated 15/02/2018 Appendix 1 Regulation should be allowed only after collection of compounding fees.
W. P. (C) No. 3682 of 2022 -12-2. The compounding fee is calculated based on the fair price available on the government site. The Grama Panchayat Secretary should have checked and confirmed the relevant guest notification.
3. According to KPBR 2011 Rule 104, the construction should be streamlined only after the Grama Panchayat Secretary ensures that facilities for differently abled are provided.
4. Government Order Go (p) No.12/2018/LSGD Dated 1502 As per Rule 8 (1) of 2018, no additions or other constructions may be made to the existing building.
5. T. Future regularization of the said construction will not be allowed under Rule 8(2) of the Order.
6. The Grama Panchayat Secretary should ensure that the necessary permissions have been obtained as per the rules of KPCR 2011.
The committee has also directed the Town Planner, Alappuzha, the convener of the committee to issue a regulatory order on behalf of the district level committee.
In the above case 7691.00 m of land belonging to Kandalur Village Survey No: 140/5-2-2,140/6-1,140/6-2,147/3- 2/1471-2 Construction of 1905,44 sq.m. 4 storied and 443.08 sq.m. 1 storied educational building Compounding fees of 162929/-(one lakh sixty two thousand nine hundred and twenty nine rupees only) were levied subject to the above conditions an order is issued giving permission to the Kandalur Grama Panchayat Secretary for regularization.
Within 30 days of receipt of the notification of the Grama Panchayat Secretary as mentioned in Rule 6 (14) 50% of the total Compounding fees amounting to Rs.81465/- (Ninety nine W. P. (C) No. 3682 of 2022 -13- thousand four hundred and sixty five only). The head of the account "0515-Other Development Program-800-other receipts- 92- Compounding Fee for Regularization of Unauthorized Construction violating provisions of Building Rules" and the remaining 50% is payable at the front office counter of the Grama Panchayat. After ensuring that the applicant complies with the Kerala Panchayath Building (Regularization of Unauthorized Construction) Rules-2018, the Regulatory Order as per Secretary Appendix VII should be issued in a timely manner. The applicant must be informed.
(Indu Vijayanath) Town Planner, Alappuzha & Convener District level committee for consideration of illegal constructions completed before 31/07/2017 Secretary, Kandalur Grama Panchayat (With plans approved by the district level committee on 19/12/2019)"
12. Chairman, Central Board of Secondary Education, New Delhi, the 4th respondent, has filed a counter affidavit, stating that on the basis of the then existing rules and inspection, affiliation was granted.
13. From the above, it could be deduced that though the complainant, Mr. Vinod Kumar, has made certain allegations regarding the unauthorized construction, material on record discloses W. P. (C) No. 3682 of 2022 -14- that all the constructions alleged to have been made, have been regularized by issuing appropriate orders and collecting a compounding fee.
14. By statement dated 02.03.2022, the Director of General Education, Directorate of Public Instruction, Thiruvananthapuram, the 3rd respondent, has stated that Kandallur Janashakthi Public School, has not submitted any application before the District Educational Officer, Mavelikara, for obtaining recognition for classes from 1 to 8.
15. Section 18 of the Right of Children to Free and Compulsory Education Act, 2009, reads thus:-
"18. No School to be established without obtaining certificate of recognition.--(1) No school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.
(2) The authority prescribed under sub-section (1) shall issue the certificate of recognition in such form, within such period, in such manner, and subject to such conditions, as may be prescribed:
Provided that no such recognition shall be granted to a W. P. (C) No. 3682 of 2022 -15- school unless it fulfils norms and standards specified under section 19.
(3) On the contravention of the conditions of recognition, the prescribed authority shall, by an order in writing, withdraw recognition:
Provided that such order shall contain a direction as to which of the neighbourhood school, the children studying in the derecognised school, shall be admitted:
Provided further that no recognition shall be so withdrawn without giving an opportunity of being heard to such school, in such manner, as may be prescribed.
(4) With effect from the date of withdrawal of the recognition under sub-section (3), no such school shall continue to function.
(5) Any person who establishes or runs a school without obtaining certificate of recognition, or continues to run a school after withdrawal of recognition, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues."
16. Rule 15 of Right of Children to Free and Compulsory Education Rules, 2010, reads thus:-
"15. Recognition to school.- (1) Every school, other than a school established, owned or controlled by the Central W. P. (C) No. 3682 of 2022 -16- Government, appropriate Government or the local authority, established before the commencement of this Act shall make a self-declaration within a period of three months of the commencement of the Act, in Form No.1 to the concerned District Education Officer regarding its compliance or otherwise with the norms and standards specified in the Schedule and fulfilment of the following conditions, namely:
(a) the school is run by a society registered under the Societies Registration Act, 1860 (21 of 1860), or a public trust constituted under any law for the time being in force;
(b) the school is not run for profit to any individual, group or association of individuals or any other persons;
(c) the school conforms to the values enshrined in the Constitution;
(d) the school buildings or other structures or the grounds are used only for the purposes of education and skill development;
(e) the school is open to inspection by any officer authorised by the appropriate Government or the local authority;
(f) the school furnishes such reports and such information as may be required from time-to-time and complies with such instructions of the appropriate Government or the local authority as may be issued to secure the continued fulfilment of the condition of recognition or the removal of deficiencies in working of the school.W. P. (C) No. 3682 of 2022 -17-
(2) Every self-declaration received in Form No. 1 shall be placed by the District Education Officer in public domain within fifteen days of its receipt.
(3) The District Education Officer shall, within three months of the receipt of the self-declaration, cause on-site inspection of such schools which claim in Form No. 1 to fulfill the norms and standards and the conditions mentioned in sub-rule (1).
(4) After the inspection referred to in sub-rule (3) is carried out, the inspection report shall be placed by the District Education Officer in public domain and schools found to be conforming to the norms, standards and the conditions shall be granted recognition by the District Education Officer in Form 2 within a period of fifteen days from the date of inspection.
(5) Schools that do not conform to the norms, standards and conditions mentioned in sub-rule (1) shall be listed by the District Education Officer through a public order to this effect;
such schools may request the District Education Officer for an on-site inspection for grant of recognition at any time within the next two and a half years, so that such period does not exceed three years from the commencement of the Act.
(6) Schools which do not conform to the norms, standards and conditions mentioned in sub-rule (1) within three years from the commencement of the Act, shall cease to function.
(7) Every school, other than a school established, owned or controlled by the Central Government, appropriate W. P. (C) No. 3682 of 2022 -18- Government or local authority, established after the commencement of this Act shall conform to the norms and standards and conditions mentioned in sub-rule (1) in order to qualify for recognition under this rule."
17. Bare reading of the above provisions indicates that after the commencement of the abovesaid Act, no school, other than a school established, owned or controlled by the appropriate Government or the Local Authority, can be permitted to be established or function, without obtaining certificate of recognition from such authority.
18. In the case on hand, the subject school has obtained NOC in the year 2003, from the competent authority by order No.29946/N3/2003/G.Edn dated 18.06.2003. School has received CBSE affiliation from 25.06.2007 and it has been extended till 31.03.2025. Statutory provisions stated supra, prima facie indicate that no fresh recognition is given, which, according to us, on the facts and circumstances of this case, is not required. The only thing which remains to be required is the NOC certificate from Fire and Rescue Services Department.
In the abovesaid circumstances, competent authority under the Fire and Rescue Services Department, is directed to scrutinize the W. P. (C) No. 3682 of 2022 -19- application submitted for issuance of NOC, and accordingly, take a decision within one month from the date of receipt of a copy of this judgment.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 3682 of 2022 -20- APPENDIX OF WP(C) 3682/2022 PETITIONER EXHIBITS Exhibit P1 PETITION RECEIVED FROM SRI. D. VINOD KUMAR REGARDING UNAUTHORISED CONSTRUCTION OF SCHOOL BUILDINGS IN JANA SHAKTI PUBLIC SCHOOL AND ITS ENGLISH TRANSLATION.
Exhibit P2 OFFICE NOTES AND ORDERS OF THE THEN JUDGE IN CHARGE OF GENERAL COMPLAINTS/PIN DATED 06/01/2021.
Exhibit P3 REPORT FROM DISTRICT COLLECTOR, ALAPPUZHA DATED 28/10/2021 AND ITS ENGLISH TRANSLATION.
Exhibit P4 OFFICE NOTES AND ORDERS OF THE
HONOURABLE MR. JUSTICE K. VINDO
CHANDRAN DATED 19/11/2021.
Exhibit P5 REPORT RECEIVED FROM SECRETARY, DELSA,
ALAPPUZHA DATED 13/12/2021.
Exhibit P6 OFFICE NOTES AND ORDERS OF THE
HONOURABLE MR. JUSTICE K. VINOD
CHANDRAN DATED 20/12/2021.
Exhibit P7 OFFICE NOTES AND ORDERS OF THE
HONOURABLE THE CHIEF JUSTICE DATED
04/01/2022.
RESPONDENT EXHIBITS
Exhibit R5A TRUE COPY OF THE DECISION TAKEN AT THE
DISTRICT ADALATH, ALAPPUZHA DATED
27.7.2019
Exhibit R5A (1) ENGLISH TRANSLATION OF EXT.R5 A
Exhibit R5 B TRUE COPY OF THE LETTER WRITTEN BY THE
5TH RESPONDENT TO THE DISTRICT TOWN
PLANNER, ALAPPUZHA DATED 1.8.2019
Exhibit R5 B (1) ENGLISH TRANSLATION OF EXT. R5 B Exhibit R5 C TRUE COPY OF THE LETTER WRITTEN BY THE DISTRICT TOWN PLANNER, ALAPPUZHA TO THE 5TH RESPONDENT DATED 27.8.2019 Exhibit R 5 c (1) ENGLISH TRANSLATION OF EXT R5 C Exhibit R5 d TRUE COPY OF THE LETTER WRITTEN BY THE 5TH RESPONDENT TO THE SECRETARY, JANA SAKTHI PUBLIC SCHOOL DATED 6.9.2019 Exhibit R5 D (1) ENGLISH TRANSLATION OF EXT.R5 D Exhibit R5 E TRUE COPY OF THE APPLICATION SUBMITTED BY THE SCHOOL AUTHORITIES PURSUANT TO THE REVISED APPLICATION DATED 23.10.2018 W. P. (C) No. 3682 of 2022 -21- Exhibit R5 F TRUE COPY OF THE LETTER WRITTEN BY THE 5TH RESPONDENT TO THE DISTRICT TOWN PLANNER, ALAPPUZHA DATED 17.10.2019 Exhibit R5 F (1) ENGLISH TRANSLATION OF EXT R5 F Exhibit R5 G TRUE COPY OF THE ORDER ISSUED BY THE DISTRICT TOWN PLANNER, ALAPPUZHA DATED 4.1.2020 Exhibit R5 G (1) ENGLISH TRANSLATION OF EXT R5 G