IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2008 C O R A M THE HONOURABLE MR. JUSTICE K.CHANDRU Writ Petition No.542 of 2004 and W.P.M.P.No.537 of 2004 Vairam Matriculation Higher Secondary School, Rajagopalapuram, Pudukottai, Represented by its Secretary .. Petitioner -Vs.- 1. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai – 600 035 2. The Executive Engineer / Administrative Officer, Trichi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 020 3. The Assistant Engineer Tamil Nadu Housing Board, Tiruchi Housing Unit, Pudukottai – 622 001 4. The Allottee Service Manager Tiruchi Housing Unit Kajamalai Colony Tiruchirapalli – 620 020 .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records leading to the impugned proceedings of the second respondent in his Letter No.R.1/3170/2002 dated 16.12.2003 in pursuance of the letter No.R.1/2279/97-3 dated 15.04.2002 followed by the letter of the fourth respondent in Letter No.R.1/2279/97 dated 23.04.2003 and quash the same. For Petitioner : Mr. T.V.Ramanujam, Senior Counsel, for Mr. T.V.Krishnamachari For Respondents : Mr. A.Vijayakumar - - - https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner is a Matriculation Higher Secondary School situated in Rajagopalapuram at Pudukottai. The petitioner had entered into a lease-cum-sale agreement with the first respondent- Housing Board dated 31.10.1988. Condition No.19 of the said agreement reads as follows:- “19.The school management should as for possible spare the play ground to the residents of the colony to conduct sports events without affecting the interest of the school” Pursuant to the said agreement, a sale deed was entered into and on 15.06.1994 with the Allottees Service Manager, Tiruchirappalli Housing Unit. The recital portion of the sale deed reads as follows:- “WHEREAS THE PURCHASER was allotted the schedule mentioned property under a LEASE CUM SALE Agreement entered into by him with the vendor on condition that the allotted school site should not be utilised for any other purpose not connected with education like putting up shops etc., WHEREAS the vendor an purchaser herein have mutually agreed to effect this of Absolute Sale of the Scheduled mentioned property for a total price consideration of a sum of respondent.13,974/- (Rupees Thirteen thousand nine hundred and seventy four only) towards the plot cost and respondent.5,72,676/- (Rupees Five lakhs seventy two thousand six hundred and seventy six only) towards the development charges for 50% area only. The remaining 50% area is allotted on free of cost for playground for the utilisation of the school as well as to the residents of the colony to conduct sports events” (Emphasis added) 2. According to the respondents-Board, the petitioner’s school did not adhere to the condition of making the school ground for outsider’s use. They have also put up a compound wall with a gate and had kept the ground closed with a lock and key. In view of the violation of that condition, by a notice dated 15.04.2002, the petitioner’s school was informed that since they have put up a compound wall and as it cannot be used by others it was contrary to the Government Order in G.O.Ms.No.622 Housing dated 26.09.1994. They were also asked to remove the compound wall. Since they have not removed the compound wall they were slapped with a notice dated 16.12.2003 asking them to pay a sum of Rs.21,97,004/-. It is this order which is under challenge in this writ petition. 3. The petitioner’s school through various correspondences had stated that they have not violated the conditions agreed to between the parties and the school has also been giving usage of play ground for outsiders on request without detriment to the interest of the https://hcservices.ecourts.gov.in/hcservices/ school. It was also reiterated in paragraph 7 of the affidavit. They have also stated that putting up of the compound wall is in the interest of safeguarding the property of the school, so that, it cannot be encroached upon or misused by third parties. It was also alleged that it was not a condition in the sale agreement or in the sale deed and it should not be used as a reason to demand payment as if the school had to purchase the land with market value. The school had also stated that they have not violated any conditions of the allotment and even now it is being put to use by others. 4. On notice from this Court a counter affidavit has been filed by the respondents dated 08.04.2005. In response to paragraph 7 of the affidavit, in the counter affidavit it is stated that a compound wall has been put up around the playground and as it was kept under lock and key preventing the local residents from having free access to the playground. It is rather surprising that the Housing Board should come with such a stand. In the agreement of sale, as extracted already, all that the School had committed to abide by was as found in in paragraph 19 of the agreement was that as far as possible they will spare the playground to the residents of the colony for conducting sports events without affecting the interest of the school. 5. Even in the sale deed it is only in the preamble portion it is stated that the playground is for the utilisation of the school as well as to the residents of the colony to conduct sports events. Therefore, the present counter affidavit travels beyond the original agreement as well as the sale deed executed by the School. Even otherwise the petitioner-school is also bound to follow the conditions of Recognition granted to run the school as per the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974. Rule No.9 deals with recognition. The condition relating to the school playground is provided under Rules 9 (j) and (jj) and it reads as follows:- “9.Recognition.- ....... (j) The premises of the school or subsidiary building appertaining to it or a playground or a vacant site belonging to the school, whether adjacent to or remote fro it, shall ordinarily be used for the purposes of conducting the school or for functions conducted by such schools or for authorised examinations or for other purposes specifically permitted by the Chief Educational Officer. (jj) The use of the building and other properties including the playground of any recognised private school for conducting drill or training with or without arms by persons who are students or members of the staff of the school shall not be permitted by the management under any circumstances” (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ Therefore the school has to follow the conditions imposed by the Tamil Nadu Recognized Schools (Regulation) Act and the Rules framed thereunder. It must be noted that the violation of the condition laid down in the sub-rules quoted above will entail the withdrawal of the recognition granted to the school. 6. The very Rule itself states that the school playground can be used is for the purpose of conducting the functions of the School or by such schools or for other purposes specifically permitted by the Chief Educational Officer. Therefore, the school having agreed to abide by the conditions in the sale agreement also will have to obey the conditions of Recognition granted by the Department. In the present case, the vague statement they are not allowing outsiders is stoutly denied by the School. They have also enclosed a representation made by the residents of the locality addressed to the Managing Director, TNHB, stating that they are allowed the usage of the school playground and it was also given to Rotary Club Junior Chamber, Arivoli Iyyakkam and other NGOs for using the school playground. 7. It is in this context Mr.T.V.Ramanujan learned senior counsel for the petitioner referred to an earlier order of this Court in W.P.No.7181 of 1997 in Arya Samaj (North) Trust Board v. Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai – 35 and another dated 16.11.2001. In that Writ Petition, in similar circumstances, this Court took exception to the respondents-Board in interfering with the utilisation of the school ground on the basis of vague allegations. In that case also the question of construction of compound wall was raised as a violation of condition by the respondents-Housing Board and it was frowned upon by this Court. 8. In these circumstances, there is no justification for the respondent to allege that there was violation of the condition of sale thereby making the school to make good the amount as demanded by the impugned notice. The impugned notice making a demand on the school to pay the cost of the ground value is arbitrary. Accordingly, the Writ Petition stands allowed and the impugned order stands quashed. Connected WPMP is closed as not necessary. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. srk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai – 35 2. The Executive Engineer / Administrative Officer, Trichi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 020 3. The Assistant Engineer, Tamil Nadu Housing Board, Tiruchi Housing Unit, Pudukottai – 622 001 4. The Allottee Service Manager, Tiruchi Housing Unit, Kajamalai Colony, Tiruchirapalli – 620 020 + 1 CC To Mr.T.V.Krisnamachari, Advocate SR NO.58171 + 1 CC To Mr.A.Vijayakumar, Advocate SR NO.58352 W.P.No.542 of 2004 and W.P.M.P.No.537 of 2004 RL {CO} TP/31.10.08 https://hcservices.ecourts.gov.in/hcservices/