IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.4.2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 7149 of 2007 and M.P. No. 1 of 2007 and 1 and 2 of 2008 A. Venkatesan ... Petitioner -vs- 1. The District Collector Vellore District 2. The Commissioner Ambur Municipality Vellore District 3. The Hindu Educational Society Rep. by its Secretary Mr. R. Kanthiraj M.C. Road, Ambur Vellore 4. State of Tamil Nadu Rep.by its Secretary to Government Municipal Administration and Water Supply Fort St. George Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents to take actions to demolish the unauthorised construction put up by the third respondent. For Petitioner : Mr. T. Mohan For Respondents 1,2&4 : Mr. M. Dhandapani, Spl. GP For Respondent 3 : Mr. V.R. Rajasekaran ORDER K. CHANDRU, J. Heard the arguments of Mr. T.Mohan, learned counsel appearing for the petitioner and Mr. M. Dhandapani, learned Special Government Pleader representing the respondents 1, 2 and 4 and Mr. V.R. https://hcservices.ecourts.gov.in/hcservices/ Rajasekaran, learned counsel for the third respondent and have perused the records. 2. This writ petition is allegedly filed in public interest seeking for a direction to the respondents to take action against the unauthorised constructions put up by the third respondent and demolish the same. 3. The writ petitioner claims that he was an alumni from the third respondent school and that he owed his position due to the contribution made by the School. Therefore, in the interest of the said School, he has filed the present writ petition. 4. The petitioner earlier came before this Court with W.P. No. 1342 of 2006 seeking for the very same relief and this Court, vide an order dated 10.01.2007, disposed of the said writ petition directing the petitioner to seek appropriate relief from the Municipal authorities. The petitioner claims that pursuant to the said order, he had sent a telegram on 13.02.2007 followed by a letter dated 15.02.2007 and sought for relief from the second respondent to take action. Even before any action could be taken, he has filed the present writ petition on 21.02.2007. 5. It is rather unfortunate that the petitioner should come forward with the second writ petition on the very same issue even before any meaningful action could be taken by the second respondent. This attempt of the petitioner is reprehensible and such a writ petition should be dismissed on the sole ground that the petitioner's attempt in moving the authorities is not bona fide and he just wanted to create a new cause of action to come to this Court. However, since the petitioner states that there is violation of the statutory provisions found under the District Municipalities Act and alleges that the third respondent had encroached Highways land, we heard the writ petition on merits. 6. In order to show the so-called public interest, at the time of hearing, the petitioner filed seven supporting affidavits from the other old students of the School by stating that due to construction of commercial shops in the periphery of the school compound, the space allotted to the School playground will be shrunk and that the cycle stand run by the Secretary of the school is for commercial purpose. 7. After notice was ordered in the writ petition, the second respondent has filed a counter affidavit in April 2007 by stating that the third respondent had not obtained No Objection Certificate (NOC) from the National Highways Authority [NHAI] but, however, he had applied for building licence on 22.7.2005 for construction of a shopping complex and the same was rejected on the ground of non- obtaining of NOC from the Highways Department and that construction https://hcservices.ecourts.gov.in/hcservices/ was done without any building licence. It was also stated that a criminal case was filed before the Court of Judicial Magistrate, Ambur and the third respondent was imposed with a fine of Rs.400/- for the unauthorised construction. It was also stated that the second respondent had taken all necessary action in terms of the provisions of the Tamil Nadu District Municipalities Act and there was no slackness on their part. 8. The third respondent had filed a counter affidavit stating that there was no public interest involved in the present writ petition and it was filed solely at the instance of one G. Suresh, who was working as a Post Graduate Teacher in the School and that the School had initiated disciplinary action against the said Suresh and that he was the root-cause for several incidents of indiscipline among the students. He was also dismissed from service on 18.5.2006 and at his instance, suits were filed regarding the internal management of the school and some petitions were filed before the Registrar of Societies. Even the earlier writ petition filed was only with a view to pressurize the management. The petitioner was set up by the said Suresh. In that view of the matter, they also took out an application for impleading the said Suresh as a party respondent to the writ petition. 9. A reply affidavit was filed by the petitioner stating that the allegation that he was set up by the school teacher Suresh was mischievous and the correspondences shown by the petitioner were obtained by having recourse to the Right to Information Act. However, this Court is not inclined in going into the internal squabble between the parties and the matter could be disposed on the pleadings filed by the respective parties. 10. In the counter affidavit dated 10.02.2008, the Secretary of the third respondent school had stated that the extra construction was done with a view to provide noon meal for the students and also to park their cycles. The first floor of the said building was provided with an access from the main Highway and the income derived by letting out the shops constructed in the first floor is to augment the resources of educational agency so that better services can be provided in terms of the objectives set out in its bye-laws. It was also stated that in the present construction, the space utilised was earlier used as a cycle stand and the playground for the school exists as it is. It was also stated that they have submitted an application in July 2005 to the Municipality for Building plan approval and a sum of Rs. 11,000/- was also paid. A further sum of Rs. 20,000/- was paid towards development charges on 28.9.2005 and their application was returned with a view to cure certain defects pointed out by the authorities. It was also stated that the School Management is pursuing the authorities with proper compliance and at this stage, the second respondent cannot be directed to demolish the construction already made by orders of this Court. It https://hcservices.ecourts.gov.in/hcservices/ is for the Municipality to consider their application and grant necessary sanction and the writ petitioner is really a busy-body who is trying to intimidate the school. 11. Mr. T. Mohan, learned counsel appearing for the petitioner submitted that it was rather unfortunate that the School should try to go in for a commercial complex and the property of the school cannot be misused. The playground for the school is an essential component of educational activities and that it cannot be allowed to be shrunk by the commercial desire of the Management. He also referred to the provisions of the Tamil Nadu Parks, Play-Fields and Open Spaces (Reservation and Regulation) Act, 1959 [for short, 'Open Space Act'] for the purpose of showing that all play fields of the School are covered in terms of Section 2(e) of the Act and, therefore, the playground cannot be used for any other purpose other than the purpose for which it has been maintained and if any purpose has to be changed, the previous sanction by the Government is required and construction of building in the said playground is prohibited by virtue of Section 8 of the Open Space Act and the owner of any such playground is obliged to maintain it as a playground not for any other purpose. 12. Mr. V.R. Rajasekaran, learned counsel appearing for the School Management submitted that the Act 26 of 1959 referred to by the petitioner does not apply to the school in question as it has to be listed as a play field in terms of Section 3 of the Act and it has to be published by the Government in Gazette. He also stated that the School has been in existence since 1923 and has been providing education to boys and girls residing at Ambur and surrounding villages. At present, it has a strength of 5500 students which includes the Higher Secondary School for Boys and Girls and also separate schools for girls and boys. Whatever the society does is only in the interest of the educational institution run by them. The petitioner, an old student of the school, instead of co-operating with the school to enhance its educational excellence, has been indulging in activities, at the instance of others, to stall further progress of the School. The earlier cycle stand covered with AC sheets in a sliding roof was many times damaged as it was hit by cricket balls and foot balls from the adjacent playground and the present attempt is to provide a RCC structure which can also be used by them as a cycle stand and noon meal centre as well as the upstair (having an entrance from outside) can be used for commercial shops and the rent derived therein can be used for further improving the school facilities. 13. Mr. V.R. Rajasekaran also stated that the State Government is compensating the salaries of the teachers by granting aid but with reference to the maintenance of the school including major repairs and improvement, they hardly get any assistance from the Government. They were also precluded from collecting any amounts https://hcservices.ecourts.gov.in/hcservices/ from the students due to free education. Therefore, the educational agency running the school will have to augment its resources for continued up-keep of the school and there is no commercial motive as alleged by the petitioner as well as some of the old students, whose affidavits he had procured to support his cause. 14. After careful consideration of the rival submissions, we are of the view that this is not a fit case to be entertained as a public interest litigation. After perusing the counter affidavit of the second respondent, we also feel that they are taking necessary steps in terms of the statutory obligation vested on them by the District Municipalities Act. Further, by interdicting any action either taken or to be taken by the authorities, this Court cannot put any spokes in those actions and direct the authorities to act only in a particular manner thereby trying to set at naught the discretion vested on the authorities. It is also stated by the third respondent school that they had applied for a building plan and had also paid the necessary fees. They also contested the requirement of obtaining NOC from the Highways authorities as not being required in the present case since the building is coming within the land owned by the School. 15. In any event, we cannot prevent the School Management from pursuing their request with the Municipal authorities. Suffice to say that we do not find that the third respondent was motivated by a desire to commercially exploit the land of the school and since the school is run by a Society registered under the Tamil Nadu Societies Registration Act and there are inbuilt provisions under the said Act to take action in case of diversion of any funds to any private hands. The reliance placed upon the Act 26 of 1959 is misconceived and has no application to the present case on hand. 16. Under the above circumstances, we have no hesitation in dismissing the present writ petition as being misconceived and devoid of merits. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Collector Vellore District 2. The Secretary to Government State of Tamil Nadu Municipal Administration and Water Supply Fort St. George Chennai + 1 CC to Mr.V.R. Rajasekaran Advocate SR NO.23002 + 1 CC to the Government Pleader SR NO.22943 Order in W. P. No. 7149 of 2007 AKR(CO) JJM(29/04/08) https://hcservices.ecourts.gov.in/hcservices/