WP/9449/2004 of Dr.M.S.Thomas, Vs The District Educational Officer, on 31 December 2004

ORDER:

This writ petition is filed seeking a declaration that the alleged inaction on thepart of the respondents 1 to 3 in shifting the Mandal Parishad ElementarySchool, Kodur, from the existing premises to the new alternative building inspite of the directions of the District Collector, Kadapa, is arbitrary and illegal.

The petitioner claims to be the owner of a house with Mangalore tiles located atKodur, which was admittedly leased out to accommodate the Mandal ParishadElementary School. It is stated that since the said building is very old and in adilapidated condition, the petitioner made several representations to theconcerned officials bringing to their notice the said fact and in pursuancethereof, the respondent authorities visited the school building and having found

that it is in a dilapidated condition and is unsafe for the school children,addressed a letter to the District Collector, Kadapa to make available analternative building for locating the school. That apart, the respondents havealso constructed a school building in Sy.No.712 on 15 cents of land donated bya philanthropist. Thereafter, the Chairman of the Education Committee of theschool, made a request to the District Collector in the month of June, 2003 toshift the present school to the new premises which is at the distance of about500 Sq.Yds. The then Minister for Women & Child Welfare endorsed on thesaid representation directing the District Collector, Kadapa, to take necessarysteps to shift the school to the new campus from the academic 2003-04. Thepetitioner alleges that the respondent No.4 – President of Mandal PrajaParishad, Kodur, who was interested in purchasing the building where theschool is at present located, brought pressure on the petitioner to sell the saidbuilding in her favour. Since the petitioner did not agree for the same, the 4[th]respondent bore grudge and at her instance the respondents 2 and 3 did nottake any further steps to shift the school to the new building. The petitioner alsostates that the District Collector, Kadapa, having personally inspected thepremises and having noted the fact that alternative building is ready foroccupation, by proceeding dated 03-05-2004, directed the respondents 1 to 3 totake necessary action for vacating the building belonging to the petitioner andshift the school to the alternative building. However, the respondents failed totake any action and therefore this writ petition was filed on 31-05-2004 allegingthat even after 25 days the respondents 1 to 3 failed to implement thedirections of the District Collector dated 03-05-2004. It was also pleaded thatsince the school will be reopened from 14-06-2004 after summer vacation forthe academic year 2004-05 unless immediate steps are taken for shifting theschool to the newly constructed building, the petitioner stands to sufferirreparable loss and it is also not in the interest of the students of the school,since the building may collapse at any time, particularly during the monsoon.Hence this writ petition seeking a declaration that the alleged inaction on thepart of the respondents 1 to 3 is arbitrary and illegal.

On behalf of the respondents, the second respondent filed a counter affidavitdenying the allegations made by the petitioner and stating that on the

representation of the petitioner the Mandal Engineering Officer has inspectedthe school building on 06-10-2002 and submitted a report stating that the schoolbuilding is not in a dilapidated condition but it is in a good condition. It is alsostated that the plea that the respondent authorities constructed a schoolbuilding in Sy.No.712 is incorrect and the said building has never been handedover to the Mandal Parishad, Kodur. In pursuance of the directions of theDistrict Collector, Kadapa, to identify the number of children who stay near thepresent school so that depending on the strength one or two rooms can beconstructed in the vacant site available opposite the present main schoolowned by the Grampanchayat, Kodur, the President of the Mandal Parishad,Kodur, instructed the second respondent to obtain the information with regard toroad facility, approval of Gram panchayat, strength particulars in the schooland number of rooms sanctioned. It is also stated that the Mandal RevenueOfficer, Kodur, vide his letter dated 28-06-2004 informed that the new primaryschool building which has been constructed in Sy.No.712 has no approachroad. That apart, the Secretary, Grampanchayat, Kodur, stated that the newlyconstructed Mandal Parishad Elementary School building was not approved bythe Grampanchayat. It is true that the Grampanchayat, Kodur, passed aresolution dated 29-06-2004 duly accepting to allot vacant site for constructionof one room basing on the strength particulars submitted by the MandalEducational Officer, Kodur, vide proceedings dated 14-06-2004, however, withregard to the number of rooms and the grant particulars, no reply has beenreceived from the Deputy Executive Engineer, Panchayat Raj, Kodur. In thecircumstances, a detailed report has been submitted to the District Collector,Kadapa, requesting to issue further necessary instructions by proceedingsdated 18-06-2004. It is also stated that during the 19[th] round Janma BhoomiProgramme, the Nodal Officer for Railway Kodur Mandal, after inspection of thenewly constructed school building submitted a report dated 10-07-2003 to theDistrict Collector, Kadapa, stating that there is no compound wall and that theschool in the present condition is not habitable as the newly constructed roomsare insufficient.

In the circumstances, the general body of the Grampanchayat by resolutionNo.184 dated 05-07-2004 has resolved to submit proposals to the DistrictEducational Officer, Kadapa, to take necessary steps for providing all the facilities as there is no approach road to the newly constructed building and thesame has not been handed over to the Mandal Parishad and to provide oneroom in the vacant place opposite the existing school building to facilitate thechildren residing near the present school building as directed by the DistrictCollector. Thus, it is pleaded that the action for shifting the school is in processand school will be shifted after providing the minimum amenities as directed bythe District Educational Officer and the District Collector, Kadapa.

The 4[th] respondent also filed a separate counter affidavit on the same lines andstating that the plea that the school building is in dilapidated condition is falseand invented only for the purpose of getting the school building vacated. It isalso stated that the said building was in fact sold out to one Sri Narayanaiahwho was Samithi President, Railway Kodur, and was also Chairman of a statelevel corporation. The allegation that the 4[th] respondent pressurized thepetitioner to sell the school building to her has been specifically denied and it isstated that in fact the building was already sold out to Sri Narayanaiah longago. The plea of the petitioner that new school building was constructed inSy.No.712 has also been denied and it is stated that it has not been handedover to the Mandal Parishad by the Deputy Engineer, Panchayat Raj, Kodur sofar. The other averments in the counter filed by the 2[nd] respondent with regardto the suitability of the said new building have been reiterated and it is furtherstated that the Mandal Parishad has no interest to continue the school at thepresent building permanently but they require reasonable time to vacate thepremises and therefore the writ petition is misconceived and liable to bedismissed.

I have heard the learned counsel for both the parties and perused the materialavailable on record.

As can be seen from the material on record, it is not in dispute that the MandalPraja Parishad Elementary School at Kodur is located in a private building.Though the petitioner claims that he is the owner of the building, the 4[th]

respondent alleges that he has already sold it to one Narayanaiah. Be that as itmay, it appears that on the basis of representations made by the petitionerstating that the building is in a dilapidated condition, the Mandal ParishadDevelopment Officer, Kodur, inspected the said building in the year 2002 andaddressed a letter dated 08-09-2002 to the Chief Executive Officer, ZillaParishad, Kadapa, stating that the building is in bad shape and requires majorrepairs. It also appears that at one point of time there was a proposal totemporarily accommodate the school in the DWACRA building, which is at adistance of two furlongs from the existing building. However an alternativebuilding was constructed in Sy.No.712 in an extent of 15 cents of land donatedby a philanthropist. The grievance of the petitioner in this writ petition is that inspite of the fact that an alternative building is made ready and even the DistrictCollector issued directions for shifting the school, the respondents 1 to 3 failedto implement the same. To substantiate his plea, the petitioner has placedbefore this Court a Memo dated 03-05-2004 issued by the District Collector,Kadapa, and on the basis of the same seeks a writ of Mandamus declaring thealleged inaction on the part of the respondents 1 to 3 to implement the saiddirections as arbitrary and illegal. However, on a perusal of the urgent notedated 03-05-2004, issued by the District Collector, Kadapa, I do not find anypositive direction as such to shift the school to the new building immediately. Itonly appears to be certain instructions for taking necessary further action forproviding an alternative accommodation for locating the school.

As a matter of fact, on a careful consideration of the material on record and thecounter affidavits filed by the Mandal Parishad Development Officer, Kodur, aswell as the President of the Mandal Praja Parishad, it appears that the plea ofthe petitioner that the building of the petitioner where the school is at presentlocated is in a dilapidated condition itself is seriously disputed. There aredifferent versions with regard to the condition of the said building. Whereas, theMandal Parishad Development Officer in his letter dated 08-09-2002 said thatthe building in a bad shape and requires major repairs, the Mandal EngineeringOfficer, Mandal Parishad, Railway Kodur submitted a report on 06-10-2002stating that it is in a good condition and the school can be continued in the said premises which has good ventilation. It is also interesting to note that there isno complaint either from the School Education Committee or the parents of thechildren or the teachers about the condition of the building nor there is anymaterial to show that they are insisting for shifting the school immediately onsafety grounds. The petitioner herein is the person who claims to be the ownerof the building and who wants the premises to be vacated.

It is also relevant to note that even with regard to the alternative buildingconstructed in Sy.No.712, there is no consensus as to the suitability of thebuilding for locating the school. In the counter affidavit filed by the secondrespondent it is stated that as per the letter of the Mandal Revenue Officer,Kodur, dated 20[th] June, 2004 there is no approach road to the school buildingand that the said building was not approved by the Grampanchayat. That apart,the Gram Panchayat passed resolutions dated 29-06-2004 and 5-7-2004resolving to submit reports to the District Educational Officer for providingrequired amenities to the new building and to hand over the same to the MandalParishad and also accepting to allot vacant site opposite the existing school forconstruction of one room. In the counter affidavit there is also a reference tothe report dated 10-07-2003 submitted by the Nodal Officer Railway Kodur,during the 19[th] round Janmabhool Programme wherein it was stated that therewas no compound wall and no approach road to the new building and that therooms are also insufficient. Moreover, the newly constructed building has notbeen handed over to the Mandal Parishad till today.

Thus apparently both the issues namely whether the building where theschool is at present located is in a dilapidated condition and unsafe to continuethe school and the availability and suitability of the new building for locating theschool involve several disputed questions of fact, which cannot be investigatedinto by this Court in exercise of jurisdiction under Article 226 of the Constitutionof India. That apart, as expressed above, the urgent note dated 03-05-2004issued by the District Collector, Kadapa, does not contain any positivedirections for shifting the school which can be said to have been disobeyed ornot implemented by the respondents 1 to 3. Moreover, on the basis of thematerial on record absolutely no case is made out to show that the petitioneracquired any legal right which can be said to have been infringed so as tomaintain a writ petition under Article 226 of the Constitution of India. If the petitioner merely seeks recovery of possession of the premises, may be theremedy is elsewhere but not by invoking the extraordinary jurisdiction of thisCourt under Article 226 of the Constitution of India.

As a matter of fact, as explained by the respondents in their respective counteraffidavits it is clear that even the respondents are intending to shift the schoolto some other suitable premises and the proposals are under consideration. Inthe circumstances, I do not see any reason to hold that there is any inaction ontheir part in shifting the school from the existing premises, nor can it be saidthat they acted in breach of any statutory provision warranting issuance of awrit of Mandamus as prayed for.

However, keeping in view the allegation as to the dilapidated condition ofthe building, and keeping in view the safety of the students, I deem itappropriate to direct the District Collector, Kadapa to enquire into the wholeissue particularly with regard to the condition of the building where the school isat present located after a personal inspection by himself or by deputing aresponsible officer and in case it is found that it is not suitable foraccommodating the school, to take immediate steps to shift the same either tothe new building constructed in Sy.No.712 subject to its suitability or to anyother alternative building expeditiously. The inspection shall be conductedwithin a period of two weeks from the date of receipt of a copy of this order andafter assessing the condition of the building, the District Collector, Kadapa,shall take the appropriate steps as he deems necessary so as to ensure thesafety of the students of the school.

The Writ Petition is accordingly disposed of with the above directions. Nocosts.

Dated: 31-12-2004

______________G. ROHINI, J

1. CC by Monday.

2. Office is directed to communicate a copy of this order to the District Collector, Kadapa.

(B/O)

LSK

To

1 The District Collector, Kadapa.

2 The District Educational Officer, Kadapa District.

3 The Mandal Parishad Development Officer, Kodur, Kadapa District.

4 The Mandal Educational Officer, Kodur, Kadapa District.

5 The President, Mandal Praja Parishad, Rly.Kodur, Kadapa District.

6 Two C.Cs. to the Government Pleader for Education, High Court Buildings, Hyderabad. (OUT)

7 Two C.D. copies.