IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 OP.No. 17959 of 2000(K) ----------------------- PETITIONER(S): --------------- 1. PROF.P.V.DONALD, S/O.VAZ, VIJAYA BHAVAN, KOCHIVELI, TITAQNIUM P.O., TRIVANDRUM. 2. P.V.CAJETAN, S/O.VAZ,USHUS, VALIYATHURA, TRIVANDRUM. 3. P.V.VIJAYAN, S/O.VAZ, VIJAYA BHAVAN, KOCHIVELI, TITAQNIUM P.O., TRIVANDRUM. 4. YUONNE LOWRANCE, -DO- 5. P.V.BALAN, S/O.VAZ, VIJAYA BHAVAN, VELI T.T. P.O., TRIVANDRUM - 21. 6. LUELLA CHRIST, D/O.VAZ, AISWARIYA, RAILWAY STATION ROAD, KAZHAKUTTAM P.O., TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. D.P.I., TRIVANDRUM. 3. DISTRICT COLLECTOR, TRIVANDRUM. GOVERNMENT PLEADER FOR SHRI.M.R.SABU FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.17959/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE SALE DEED NO.3363/1117(ME) P2. COPY OF THE SALE DEED NO.3364/1117 (ME). P3. COPY OF THE TAX RECEIPT DTE.1.1.77 AND 9.12.86. P4. COPY OF THE NOTIFICATION DTD.24.6.75. P5. COPY OF THE PROCEEDINGS DTD.14.12.83. P6. COPY OF THE NOTIFICATION DTD.28.1.86. P7. COPY OF THE DEED NO.117/88 DTD.1.10.88. P8. COPY OF THE REPRESENTATION DTD.28.2.97. P9. COPY OF THE JUDGMENT DTD.30.3.98 IN O.P.NO.5310/98. P10. COPY OF THE GOVT. ORDER DTD.19.2.2000. P11. COPY OF THE APPLICATION DTD.15.3.65. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.17959 of 2000 ================== Dated this the 30th day of October, 2008 J U D G M E N T This original petition relates to claim for compensation raised by the petitioners for the Veli U.P. School, an aided school, which was acquired by the Government under Section 14 (2) of the Kerala Education Act, which originally belonged to late Smt.Irene Vaz who died on 21.1.1989, whose legal heirs, the petitioners are. This school is comprised in survey Nos.2785/19, 2785/20 and 2785/34/1 of Kadakampilly Village. According to the petitioners, the said property vested with late Irene Vaz as per Exts.P1 and P2 sale deed and settlement deed. The said Irene Vaz was also accepted as the manager of the school by the Educational Authorities and since she found it difficult to run the school effectively, she sought permission of the Government to close down the school. But instead of granting permission, the Government took over the management of the school for five years under Rule 1 of Chapter 20 of KER. Although five year period of taking over was over on 11.8.1980, the Government continued to run the school upto 27.1.1985. Initially there was a o.p.17959/2000 2 dispute regarding the rent payable and ultimately, by orders of the Court, rent was fixed at 463/- per month. While so, by Ext.P6 order, the Government acquired the land under Section 14(B) of the Kerala Education Act, 1958. Later on, the petitioners, as the legal heirs of late Irene Vaz, sought payment of compensation for acquisition of the school and the properties. Since the Government did not take any steps in the regard, they approached this Court by filing O.P.No. 5310/1998, in which, by Ext.P9 judgment, this Court directed the Government to consider and pass orders on the representation filed by the petitioners in that regard. Pursuant thereto, though long after the period prescribed by the judgment, that too, after a contempt case, the Government finally passed Ext.P10 order, whereby the Government held that since the land in which the U.P. school is functioning is in the name of late Kumaran Madhavan who had no legal heirs, the petitioners cannot claim any right over the property and consequent compensation for acquisition of the school. Accordingly, the representation filed by the petitioners was rejected. The petitioners are challenging that order and seeking the following reliefs in this original petition: o.p.17959/2000 3 “i) to declare that the acquisition of the “Veli Primary School” and its property belonging to the petitioners (succeeding their mother Mrs. Irene Vaz by Exhibit P6) is illegal and the same is void ab-initio, and the petitioners are entitled to get the property and the school building restored. ii) to issue a writ of certiorari or any other appropriate writ order or direction to the respondents to call for all records/files leading upto Exhibit P11 and quash Exhibit P6 and P10. iii) to issue a writ of mandamus or any other appropriate writ order or direction to the respondents to restore the possession of the school building and the property thereto, where the Veli Upper Primary School is situated, to the petitioners within a time limit prescribed by this Hon'ble Court (on in the alternative) to direct the respondents to pay the legitimate compensation for the acquisition of the school, building, and thereto, and other articles on the basis of the present market value of the properties”. 2. From a reading of the original petition as well as Ext.P8 on which Ext.P10 order has been passed, it is evident that the petitioners are not serious about the challenge against the acquisition of the school at this point of time. I also do not find any merit in such challenge also. In the above circumstance, I shall now consider only the challenge against Ext.P10 order and the claim for compensation raised by the petitioners for acquisition of the school and the properties. 3. The 3rd respondent has filed a counter affidavit in support of Ext.P10 order. In view of the finding in Ext.P10 order o.p.17959/2000 4 that the property comprised of the school is in the name of Sri.Kumaran Madhavan who died without any legal heirs, this Court, by order dated 27.7.2007, directed the Village Officer Kadakampally Village in Thiruvananthapuram Taluk, to file an affidavit showing the name of the holder of Thandaper A/c. No.1115 in relation to 15 Ares, 35 Ares and 50 Ares in Sy.Nos.2785/19, 2785/20 and 2785/34/1 respectively of Kadakampilly Village. Pursuant thereto, the the Village Officer has filed an affidavit as follows: “3. This Hon'ble Court as per interim order dated 27.07.2007 directed the Village Officer, Kadakampilly to file an affidavit showing the name of the holder of the Thandaper A/c. No.1115 in relation to 15 ares, 35 ares and 50 ares in Sy.Nos.2785/19, 2785/20 and 2785/34/1 respectively of Kadakampilly village. From the verification of the records including the Thandaper register available in the office, it is seen that the Thandaper holder of the said properties are one Irene Vaz, D/o.C.Almeda, residing at Karithoppil, Sambuvattom, Karikakammuri, Kochuveli. It is submitted that so far Resurvey of the property mentioned in the above writ petition has not been affected and therefore, the property has not been converted in the form of Ares which is usually being done after Resurvey. Since Resurvey has not been affected the property is measured in the unit of cents. The property in question is only 15 cents, 35 cents and 50 cents in Sy.Nos.2785/19, 2785/20 and 2785/34/1 respectively of Kadakampilly village. As stated above the said property belongs to Irene Vaz, D/o.Almeda, residing at Karithoppil, Sambuvattom, Karikakammuri, Kochuveli. It is also submitted that land tax in respect of the above said properties has been paid in the name of Irene for the period upto 2006-2007 on 06.07.2006. Once again I may place my unconditional apology for the inconvenience caused to this Hon'ble Court due to the delay in filing the affidavit as directed by this Hon'ble Court on 27.07.2007.” (emphasis supplied) o.p.17959/2000 5 This affidavit totally disproves the finding in Ext.P10 that the land belonged to Sri.Kumaran Madhavan. In fact, Exts.P1 and P2 documents, which have not been disputed by the respondents, also categorically show that the property vested with Smt.Irene Vaz as per those documents. Ext.P1 is the settlement deed executed by Kumaran Madhavan in favour of Irene Vaz. Again Ext.P2 is a sale deed executed by Kumaran Madhavan in favour of Irene Vaz. It is strange that the Government took such a contention at all. All through out, the Government was dealing with Irene Vaz in respect of the school. By Ext.P11, the concerned District Educational Officer, on the recommendation of the Assistant Educational Officer, approved the change of manager from one A.Govinda Pillai to Mrs.Irene Vaz. In Ext.P11 it is specifically stated that site and the buildings of the school belong to the new manager viz., Mrs. Irene Vaz. In Ext.P5 order, the District Educational Officer had accepted and approved Smt.Irene Vaz as the manager of the Veli U.P.School and as the person to whom rent of the school is to be paid. The said Irene Vaz paid tax in respect of the property as is evident from Ext.P3 series of tax receipts in Thandaper A/c. No.1115. Moreover, all o.p.17959/2000 6 along the Government and the educational authorities were only corresponding with Irene Vaz in respect of the school. In view of the above documents and circumstances, it to too late in the day for the Government to contend that late Irene Vaz was not the owner of the properties and the school and therefore, her legal heirs are not eligible for compensation for acquisition of the school. In view of the above circumstances, Ext.P10 is quashed and the Government is directed to fix and pay compensation due to the petitioners for the acquisition of the above said school and properties, which shall be done within a period of three months from the date of receipt of a certified copy of this judgment. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.17959/2000 7 S.SIRI JAGAN, J. ================ O.P.No.17959 of 2000-K ================ J U D G M E N T 30th October, 2008 o.p.17959/2000 8