IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 13TH DAY OF DECEMBER 2011/22ND AGRAHAYANA 1933 WPC.No. 23500 of 2010 (J) ------------------------- PETITIONER: ----------- THE MANAGER, SREE VIDHYADHIRAJA VIDHYASADAN ENGLISH MEDIUM HIGH SCHOOL, PAINAVU IDUKKI COLONY P.O., IDUKKI DISTRICT, PIN-685602. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT.TULASI PANICKER SRI.C.N.SREEKUMAR RESPONDENTS: ------------ 1. THE GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA. * 4. IDUKKI DISTRICT PANCHAYAT, KUYILIMALA, PAINAVU P.O, IDUKKI. (ADDL. 4TH RESPONDEPNT) ** 5. EBIN GEORGE, AGED 15 YEARS, S/O. P.M.VARKICHAN, PADAYATTIL, CHERUTHONI, IDUKKI COLONY, PIN-685602, MINOR, REPRESENTED BY GUARDIAN AND FATHER, P.M. VARKICHAN, PADAYATTIL, CHERUTHONI, IDUKKI COLONY, PIN – 685 602. ** 6. VARNA RAVEENDRAN, AGED 15 YEARS, D/O. RAVEENDRAN, KUNNUPURATHU HOUSE, PONNADU P.O, MANNANCHERRY, ALAPPUZHA, MINOR, REPRESENTED BY GUARDIAN AND FATHER, T.RAVEENDRAN, KUNNUPURATHU HOUSE, PONNADU P.O, MANNANCHERRY, ALAPPUZHA. WPC.No. 23500 of 2010 (J) * ADDL. 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 20/8/2010 IN I.A. NO.11839/2010. ** 5TH AND 6TH RESPONDENTS ARE IMPLEADED AS PER ORDER DATED 8/2/2011 IN I.A. 2012/2011. R1-R3 BY GOVERNMENT PLEADER SRI. RAJESH VIJAYENDRAN. R4 - BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R5- R6 BY SRI.RAJESH VIJAYENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.No. 23500 of 2010 (J) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE GAZETTE NOTIFICATION DATED 26.7.1976 GRANTING PERMISSION TO START THE SCHOOL. P2: TRUE COPY OF PROCEEDINGS DATED 29.05.1993 OF THE PROJECT OFFICER ALLOTTING STUDENTS. P3: TRUE COPY OF THE ORDER DATED 23.07.2002 SANCTIONING HIGHER SECONDARY COURSE IN the SCHOOL. P4: TRUE COPY OF THE LETTER DATED 4.6.2009 ALLOTTING STUDENTS TO PETITIONER SCHOOL UNDER THE SCHEME. P5: TRUE COPY OF ALLOTMENT LETTER DATED 3.4.2000. P6: TRUE COPY OF THE APPLICATION FOR PERMANENT RECOGNITION DATED 12.06.2005 SUBMITTED BEFORE THE 1T RESPONDENT BY THE PETITIONER. P7: TRUE COPY OF INTERIM ORDER DATED 17.11.2009 IN WP(C) NO.32819/2009 P8: TRUE COPY OF INTERIM ORDER DATED 4.3.2010 IN I.A NO.2879/2010. P9: TRUE COPY OF THE STATEMENT DATED 8.6.2010 FILED ON BEHALF OF 2ND RESPONDENT. P10: TRUE COPY OF THE JUDGMENT DATED 21.6.2010 IN WP.(C) NO.32819/2009. P11: TRUE COPY OF THE JUDGMENT IN W.A. NO.900 OF 2010 DATED 21.6.2010. P12: TRUE COPY OF THE ORDER DATED 17.5.2010 ISSUED BY THE 1ST RESPONDENT. P13: TRUE COPY OF THE LETTER DATED 6.2.2010 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER TO THE PRINCIPAL. P14: TRUE COPY OF THE ORDER DATED 6.7.2010 SENT BY THE 3RD RESPONDENT. WPC.No. 23500 of 2010 (J) P15: TRUE COPY OF G.O.(RT) NO.439/2011/G.EDN. DATED 1.2.2011 ISSUED BY 1ST RESPONDENT. RESPONDENTS' EXHIBITS: ANNEXURE R1(a): TRUE COPY OF THE LETTER DATED 10.3.2010. ANNEXURE R4(a): TRUE COPY OF THE AGREEMENT DATED 18.2.1978. ANNEXURE R4(b): TRUE COPY OF THE GOVERNMENT ORDER NO.223/82/AD DATED 16.7.1982. ANNEXURE R5(a): TRUE COPY OF THE ORDER DATED 1.2.2011 ISSUED BY THE 1ST RESPONDENT. //TRUE COPY// PA TO JUDGE Scl. C.K.ABDUL REHIM, J. --------------------------------- W.P(C ) No. 23500 OF 2010 --------------------------------- Dated this the 13 th day of December , 2011 J U D G M E N T The Manager of an unaided school situated in Idukki District is the petitioner. Challenge is against Ext.P2 order of the first respondent, rejecting the application for recognition of the school. The school in question was established in the year 1976, after obtaining Ext.P1 permission from the Government. It is evident from Ext.P1 that the sanction was accorded for starting a recognised unaided school for the year 1976-77, subject to the condition that the school should satisfy the requisite conditions for getting permanent recognition, within 31.05.1977. The school was established in a property having an accent of 2.15 Hectres (5.37 Acres) belonging to the Idukki Development Authority. Consequent to abolition of the said Authority, ownership of the land vested with Idukki District Panchayath, the additional 4th respondent W.P(C ) No. 23500 OF 2010 2 herein. It is stated that the school in question is the only English medium school in Idukki District which is following State Syllabus. The Government accorded sanction for Plus Two course in the school through Ext.P3, in the year 2002. Considering the meritorious functioning the Government have chosen the school under the “Better Education Scheme” aimed for providing education facilities for outstanding students belonging to the Scheduled Caste and Scheduled Tribe communities, through Ext.P2 and P4. All along the students of the school were permitted to appear for Public Examinations at the Government Vocational Higher Secondary School, Vazhathope, under the 'clubbing arrangement scheme'. Thus the school in question was functioning in a smooth manner from 1976 to 2009. 2. Ext.P6 is the application for permanent recognition submitted by the petitioner. In 2009, the educational authorities have not permitted the students of the school to participate in the state level sports competitions The principal of the school had approached this court through W.P(C ) No. 23500 OF 2010 3 Ext.P1 interim order passed in W.P.(C) 32819/09. This court directed the Government to consider the application for permanent recognition and to take a decision before the end of December, 2009. Through Ext.P8 interim order, this court also permitted the students to write SSLC Examination of March 2010 through 'clubbing arrangement' at the Government Vocational Higher Secondary School, Vazhathope. Later Ext.P8 order was modified on the request of the Government, which was challenged in Writ Appeal No. 900/2010. A Division Bench of this court disposed of the Writ Appeal and the writ petition, through a common judgment (Exts.P10 and P11). Taking note of the fact that the Government had rejected the application for permanent recognition, this court reserved rights of the petitioner to challenge such decision. 3. Ext.P12 order, through which the permanent recognition was rejected, is under challenge in this writ petition. The reasons stated in Ext.P12 is that the school had failed in acquiring necessary land till date, inspite it W.P(C ) No. 23500 OF 2010 4 started functioning in the year 1976. The petitioner contended that the decision in this regard was taken without considering the report of the Director of Public Instructions, vide No. NS(1)/70828/06 dated 24-04-2007. In the said report it is stated that the school was functioning for more than 32 years and it has got the required land and other facilities. Referring to Ext.P13 reply of the State Public Information Officer, on a query made under the RTI Act, it is contended that in fact the report was to the effect that, the functioning of the school will facilitate residents of the area in question, including tribals. But the Government refused recognition against such recommendations, is the contention. Ext.P14 is the consequential order issued restraining the petitioner from admitting students for the year 2010-11. It is noticed that, the operation of Ext.P4 was stayed through interim order issued in this writ petition and the school had admitted students for the years 2010-2011 and 2011-2012. 4. In the statement filed on behalf of the respondents, W.P(C ) No. 23500 OF 2010 5 it is mentioned that, while considering the application for recognition it was noticed that Idukki Development Authority had not transferred title on the land to the petitioner. The school is merely possessing the land without any lawful authority. Since no right has been transferred by the authority, they can take back the land from the school, at any time. Hence the petitioner was required to produce possession certificates for considering the application. But in Ext.R1(a) the petitioner replied that the land in question is in control and possession of the school and the Idukki Development Authority had demarcated the land in the possession of the school. It was also informed that steps are being pursued to obtain documents evidencing possession of the land. But on consideration of R1(a), the Government found that there is no authoritative documents to prove ownership or exclusive possession of the land as required under Rule II of Chapter V, Note (iii) of KER. Hence Ext.P12 was issued rejecting the application for recognition, is the contention. W.P(C ) No. 23500 OF 2010 6 5. The Additional 4th respondent who is the successor in interest of the Idukki Development Authority, had filed counter affidavit stating that the petitioner had made improvements of the land in violation of the terms of the original agreement through which the land and building were given possession. It is contended that the property was not transferred or surrendered and the school has no absolute ownership over the land. Ext.R4(b) Government Order is produced to show that the land in question was alloted to Idukki Development Authority . However, it is stated that, on the basis of an application of the school authorities, the Idukki Development Authority had taken a decision in its meeting held on 14-2-2000, to allot the land for use of the school, subject to the realisation of value determined by the 'Valuation Committee' of that Authority. The said decision was communicated to the school authorities through Ext.P5 letter dated 03-04-2000. But the school authorities have failed to remit the land value and consequently no allotment has taken place. According to W.P(C ) No. 23500 OF 2010 7 the 4th respondent, the District Panchayath can allot the land to the school only with permission of the State Government, since ownership of the land now vest with the District Panchayath. 6. Learned counsel for the petitioner contended that, as per Rule 1(3) of Chapter V KER, once the permission to open a school is granted by the competent authority, the school is deemed to be provisionally recognised until the recognition is confirmed in accordance with the Rules. In the case of the petitioner, the permission for opening the school was granted after being convinced about availability of the land, as required under Rule 6(v) and Rule 9(i) of Chapter V KER. He further points out that the school in question was allowed to continue all along only after the authority became satisfied about compliance of the requirements under Note (iii) of Rule II of Chapter V, KER, because the school was having exclusive possession of the land. It is pointed out that the Government has no case that the permission was granted without compliance of any W.P(C ) No. 23500 OF 2010 8 of the requirements as contemplated in chapter V of KER and that the Government have not taken any action for cancellation of the permission granted, at any stage during all the years from 1976 to 2009. Hence the rejection in Ext.P12 is not legally sustainable and is liable to be set aside, is the contention. 7. While considering the issue, I take note of the fact that the permission of opening the school was granted as early as in 1976 and for the last 35 years the school was functioning. It is also evident that the school is situated in a land having 2.15 Hectares, which is in their possession since the last 35 years. The question posed is as to whether the school had established their right of ownership or exclusive possession for a period not less than 6 years on the land in question. During the last 34 years when Government issued repeated orders sanctioning permission for continuance of the school, such a dispute was never raised. Since the school was in uninterrupted possession of the land for the last more than 34 years by itself is a fact W.P(C ) No. 23500 OF 2010 9 which will satisfy the requirement to have exclusive possession of the land for a period more than six years. Nothing is their to indicate that the exclusive possession of the land by the school was terminated through any proceedings initiated or through recourse of any legal proceedings. I also find merit in the contention of the petitioner that the requirement for production of documents pertaining to ownership or possession of land is only a sine-qua- non for permission to open the school, and such condition need not be satisfied for grant of recognition under Rule 17 of Chapter V, KER. If the Government have got any case that the permission to open the school was obtained without fulfilling any of the requisite conditions, it would have taken appropriate steps for cancellation of such permission. Rule 1(3) of chapter V makes it clear that once the permission to start a new school is granted or if such permission is continued, there is a deemed recognition conferred on the school enabling its continued functioning. Therefore I am of the view that the refusal of recognition W.P(C ) No. 23500 OF 2010 10 on the ground that the school had failed in producing document evidencing exclusive possession, issued after 34 years of continued permission, cannot be justified and upheld. 8. However, I am of the view that since either ownership or exclusive possession on the land need be established, the petitioner will be at liberty to pursue such steps needed for allotment of the land by the 4th respondent, if necessary after obtaining sanction from the Government. 9. On the basis of findings arrived as above, this writ petition is allowed and Ext.P12 order is hereby quashed. The 1st respondent is directed to reconsider the application submitted for permanent recognition. On the basis of the observations contained herein above, after affording a reasonable opportunity of hearing to the petitioner through any of his representative. 10. It is made clear that till a decision is taken by the Government as directed above the school in question will be deemed to have recognition. The students of the W.P(C ) No. 23500 OF 2010 11 petitioner's school shall be permitted to write the public examinations under the 'clubbing scheme' at the Govt. Vocational Higher Secondary School, Vazhathope, for the academic year 2011-2012. The first respondent is also directed to take a decision in the matter at the earliest possible in order to facilitate the petitioner to admit students for the next academic year. C.K.ABDUL REHIM JUDGE smm W.P(C ) No. 23500 OF 2010 12