IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.8282 of 2003 Krupa Oonamutror Maruvalvu Kalvi Arakkattalai represented by its Founder and Managing Trustee N.Murugesan Benjamin .. Petitioner Vs. 1. The State represented by its Secretary Social Welfare Department Fort St.George Chennai. 2. The District Social Welfare Officer Collector Office Campus Coimbatore 3. The District Handicapped Rehabilitation Officer Coimbatore District Coimbatore 4. Tahsildar Coimbatore South Coimbatore 5. Deputy Tahsildar Thondamuthur Zone Thondamuthur ... respondents. Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Mandamus as stated therein. For Petitioner : Ms.P.Indumathi for Mr.K.Kalyanasundaram For Respondents: Mr.N.Senthilkumar AGP https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition has been filed praying for issuance of a writ of mandamus, in directing the respondents 3 to 5 to permit the petitioner to run the Home by opening the sealed Trust and Home and by handing over the articles seized on 27.2.2003 from the Home and to restrain the respondents from interfering with the functioning of the Trust & Home. 2. The petitioner Trust was founded on 26.1.2001 by the Founder and Managing Trustee N.Murugesan Benjamin at Coimbatore in the name of "kiruba Oonamutra Kulanthaikal Kalvi Kaappagam for the welfare of the physically challenged children with the strength of six of them. On being informed that the minimum strength to get recognition was 35, the Founder and Managing Trustee of the petitioner Trust had not applied for approval for running of the Home, but when the strength reached 30, he submitted an application for approval of the Trust on 26.7.2002 before the second respondent. 3. The petitioner,on 2.4.2002 received a letter from the third respondent calling for his explanation for the allegations mentioned in the petition given by the public to the District Collector, Coimbatore. The allegations in the petition were to the effect that the petitioner had started the Home and running the same in the name of the petitioner Trust without obtaining approval from the Government and was misappropriating the funds collected through donations towards the maintenance of the Trust and for his own use, without providing sufficient food, safe shelter, medical expenses and hygienic atmosphere to the inmates viz., the physically challenged children. He gave a reply dated 19.4.2002 denying the allegations contained in the letter dated 2.4.2002. In his reply, he took a stand that he was informed that the required minimum strength to apply for recognition of the physically challenged children Home was 35 and the actual strength of the Trust was below the required strength, and therefore, he had not applied for recognition and further that the donors themselves voluntarily came to the Trust and donated funds to it, after being satisfied with the performance of the Trust and at no point of time, he had misappropriated the donations for his own use and added further the donations were not sufficient even to pay rent to the building and salary of the employees and the children were provided with food, good shelter and medical treatment for their skin diseases. 4. It is not in dispute that the first respondent came along with the respondents 4 and 5 to the Trust on 27.2.2003 and took away the physical challenged children of the petitioner Home to other private Homes and seized all the articles of the Trust and sealed the Trust. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel for the petitioner urges before this Court that the act of respondents 3 to 5 in seizing the articles of the petitioner Trust and sealing the Trust, without issuing any notice to the petitioner and without considering the explanation given by the petitioner is per se and illegal one which is an arbitrary one and also is in violation of principles of natural justice and further the Founder of the petitioner Trust was maintaining the proper account for all the incomes and expenditures of the Trust right from the beginning of the Trust and after receipt of the reply by the Founder of the petitioner Trust, the third respondent was silent for more than eight months and suddenly without notice entered the premises of the Trust and seized the articles etc which was an illegal one and indeed the petitioner's Trust was a registered one under the Indian Trust Act 1882 and the Registered Number of the Trust was 1179/2001 which aspect of the matter was not taken into account by the authorities concerned, while taking action against the petitioner and also another important fact was that the application of the petitioner Trust for approval was pending before the second respondent and this aspect was not taken into account by the authorities concerned and the petitioner was appreciated with social welfare activities ever since 1991 and the welfare of the physically challenged children only, he founded the Trust and started the Home but the same was not appreciated by the authorities concerned in a proper perspective and the respondents 3 to 5 had sealed the Trust and seized the articles without adhering to especially the procedural formalities like issuance of notice to the petitioner before ever taking action and out of 30 physically challenged children, 7 of them were mentally retarded without father or mother and there was no complaint them against the petitioner Trust and therefore prays for allowing the writ petition to prevent an aberration of justice. 6. The contentions of the learned Additional Government Pleader appearing for respondents are to the effect that the required students strength for applying for Government's permission and recognition is 1:8 ratio ie., 8 students and one teacher per class and the minimum strength required for applying for the permission or recognition of the institution is 25 physically challenged children and not 35 and that the petitioner had not applied to the second respondent and therefore, the concerned District Rehabilitation Officer in charge might not be aware of the submission of the application purported to be made on 26.7.2002 by the petitioner and in fact, the petitioner had not produced any acknowledgment certificate to the effect of service of the petition seeking permission before the appropriate authority and as per Section 69 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995, no individual should run any institution without obtaining recognition from the Department viz., from the office of the State Commissioner for the Disabled, Chennai and any one who is to run institution without permission of the State Commissioner for disabled is liable for punishment for https://hcservices.ecourts.gov.in/hcservices/ fraudulently availing any benefit meant for persons with disabilities and the punishment of imprisonment for a term which may extend to two years or with fine which extended Rs.25,000/- or with both and further as per Section 51 of the said Act, no person is to establish or maintain an institution for persons with disabilities except in accordance with a certificate of registration issued in this behalf by the competent authority and as such running of institution without obtained recognition from the office of the State Commissioner for the disabled is an offence and collecting donations from the public is also improper. 7. Added further, it is the stand of the respondents that the petitioner was asked to explain as to why action was not taken to obtain permission and recognition of their institutions from the Department for Rehabilitation of the Disabled to run the institution and in the absence of the approval of the Government, donations collected for the welfare of the disabled students were misappropriated by the petitioner and availing the benefit of his own and his wife and for living luxurious life are not valid one in the eye of law. 8. It is not in dispute that the petitioner/Trust was inspected by the District Disabled Rehabilitation Officer for three times and that the petitioner was instructed to appoint qualified(Special Education) Teachers to take classes and care of the disabled children and since the school was functioning in the upstairs of the institution building without proper security to the disabled children as the upstairs of the building constructed with thatched roofing and the downstairs allotted for a weighing machine company. 9. The contention of the learned Additional Government Pleader for the respondents is that the purpose and aim of the petitioner was to collect the donations in the name of the disabled school and the disabled children by evoking the public sympathy and he was warned for the irregularities of misuse and misappropriation of the common fund of the school and even though, the petitioner submitted his explanation, the same was not worth consideration and again, he was provided with a chance by issuance of an application for applying permission and recognition of the institution, which he failed to submit the application till 2001 and had not stopped the misappropriation activities. 10. The sum and substance of the contention of the respondents is that even though the petitioner/Trust was registered under the Indian Trust Act 1882 running of a public institution must be duly recognised by the Government by adhering to the procedures by submitting the required documents such as (1) Blue print of the school building showing the detailed accommodation of class rooms etc (2) Teaching equipments (3) List of furniture(4) List of Library Books(5) Sanitary certificate from the department concerned(6) https://hcservices.ecourts.gov.in/hcservices/ Licence from the Tahsildar for running the institution for a period of three years(7) Stability certificate of the building and soundness from the Government authorised Engineer (8) Deposit of endowment fund for the security of the salary to staff and to appoint qualified teacher for giving proper special education to the physical challenged children and conspicuously these facilities were not provided by the petitioner/Trust and in fact the respondents deny that the petitioner submitted an application dated 26.7.2002 to the appropriate authority for which no acknowledgment on the side of the petitioner was produced before this Court to show that the application for approval dated 26.7.2002 was submitted to the second respondent. 11.One cannot ignore an important fact that the fourth respondent/Tahsildar (South Taluk), Coimbatore had addressed a letter dated 26.2.2003 to the Superintendent of Police, Coimbatore and in his letter dated 26.2.2003 to the effect that the petitioner institution was closed and the physical challenged children were removed from the petitioner Trust and handed over for proper care to the Presentation Convent, Kinathukkadavu and the Trust was sealed by the Revenue Authorities. 12. This Court heard the learned counsel appearing for the parties and noticed their contentions. 13. A perusal of Section 51 of the said Act shows that no one is to establish or maintain any institution for persons with disabilities except under and in accordance with a certificate of registration issued in this behalf by the competent authority. In the instant case on hand, the petitioner/Trust in his reply dated 19.4.2002 addressed to the third respondent has categorically stated that on 26.1.2002 the first anniversary function was held and that the Government approval was not obtained. It is not in dispute that the petitioner/Trust was formed on 26.1.2001. Even if this Court is to accept the contention of the petitioner that the petitioner has applied for approval on 26.7.2002 before the appropriate authority, without admitting the same, then it is to be pointed out that Section 51 enjoins that ' no one is to establish or maintain any institution for persons with disabilities except under and in accordance with a certificate of registration and even the ingredients of Section 51 of the said Act commencing from 'provided that a person maintaining an institution for persons with disabilities immediately before the commencement of this Act may continue to maintain such institution for a period of six months from such commencement and if he has made an application for such certificate under this Section within the said period of six months, till the disposal of such application' are of no avail to the petitioner in the considered opinion of this Court. 14. Added further, Section 69 of the said Act prescribes punishment for fraudulently availing any benefit meant for persons https://hcservices.ecourts.gov.in/hcservices/ with disabilities. At this juncture, though the petitioner's founder and managing Trustee of the Trust in his affidavit has made mention of the award and medal showered on him yet, this Court is of the considered view that the petitioner by no stretch of imagination can establish or maintain the Trust without obtaining prior permission of the prescribed authorities, as per Act and Rules and in the present on hand, such a procedure was not resorted to by the petitioner/Trust and in short, the petitioner/Trust cannot shake or shackle the procedural wrangle of complying with the due formalities as per Rules and therefore, on the basis of the public complaints later the authorities had visited the Trust and prepared the seizure mahazar and they saw the pathetic plight of the children and therefore, looking at from any angle, the request of the petitioner to permit him to run the petitioner's Trust cannot be granted by this Court and the same is not acceded to and consequently, the writ fails. 15. In the result, this writ petition is dismissed without costs. However, the third respondent is directed to hand over the seized articles to the petitioner in the manner known to law, if they are no longer required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The Secretary Social Welfare Department Fort St.George, Chennai. 2. The District Social Welfare Officer Collector Office Campus Coimbatore 3. The District Handicapped Rehabilitation Officer Coimbatore District, Coimbatore https://hcservices.ecourts.gov.in/hcservices/ 4. The Tahsildar Coimbatore South Coimbatore 5. The Deputy Tahsildar Thondamuthur Zone Thondamuthur + 1 CC to the Government Pleader SR NO 6927 1 cc To Mr.K.Kalyasundaram, Advocate, SR.6490 W.P.No.8282/2003 SV(CO) sra 16.02.2010 https://hcservices.ecourts.gov.in/hcservices/