Mohammed Ashraf v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** ## **WP(C).No. 33724 of 2014 (M)** ## **----------------------------** ## **PETITIONER :** **-----------------------** **MOHAMMED ASHRAF, S/O.BAVUNNY, KATTUPARAMBIL HOUSE, MATHILAKAM P.O.,KODUNGALLOOR TALUK.** **BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR-680 001.** **4. THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA-680 121.** **5. THE MANAGER, ST.JOSEPH HIGHER SECONDARY SCHOOL,** **MATHILAKAM,KODUNGALLUR-680 664.** **R1 TO R4 BY GOVERNMENT PLEADER SRI.V.VIJULAL R5 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 33724 of 2014 (M)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1: COPY OF THE IDENTITY CARD OF THE DAUGHTER OF THE PETITIONER.** - **P2: COPY OF THE NOTICE WITH ENGLISH TRANSLATION. P3: COPY OF G.O.(RT)NO.1503/2002/G.EDN. DATED 7.6.2002. P4: COPY OF THE COMPLAINT FILED BEFORE THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR DATED 9.12.2014. WITH ENGLISH TRANSLATION** **P5: COPY OF THE POSTAL RECEIPT DATED 9.12.2014. RESPONDENT(S)' EXHIBITS ---------------------------------------R5(A) COPY OF THE APPLICATION DATED 10/11/2014 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT. R5(A)(1) COPY OF THE ENGLISH TRANSLATION OF EXHIBIT R5(A) R5(B) COPY OF THE REPLY NO.B4/8357/2014 DATED 29/11/2014 ISSUED BY THE 4TH RESPONDENT. R5(B)(1) COPY OF THE ENGLISH TRANSLATION OF EXHIBIT R5(B) R5(C) COPY OF THE ORDER NO.B4-9198/2014 DATED 15/12/2014 ISSUED BY THE 4TH RESPONDENT. R5(C) (1) COPY OF THE ENGLISH TRANSLATION OF EXHIBIT R5(C)** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** DAMA SESHADRI NAIDU, J. ---------------------------------W.P. (C) No. 33724 of 2014 ---------------------------------Dated this the 18[th] day of December, 2014. ## JUDGMENT In this writ petition, the petitioner raised an issue with regard to the use of the school premises for supposed commercial activities as being in violation of the ratio laid down by this Court in Kamaladevi v. Gopalakrishnan (2006 (1) KLT 315). 2. Briefly stated, the petitioner, the father of one of the students studying in the 5[th] respondent's school, is said to have complained to the 3[rd] respondent about what is said to be the use of the school premises for commercial activities by the management not only in violation of the statutory position under Kerala Education Act but also in negation of the judicial precedents rendered by this Court. 3. In this backdrop, the learned counsel for the petitioner has made strenuous efforts to convince the Court that the 5[th] respondent's school is all set to conduct a carnival named Muziriz Christmas Carnival, 2014 from December 20[th] to 28[th] . According to him, conducting such a carnival is prohibited under law. W.P.(C). No. 33724/2014 -2- 4. The learned counsel has submitted that though the property belongs to a church, once the school has been established, it cannot be used for any purpose other than educational purpose. The learned counsel has drawn my attention to Section 6 of Kerala Education Act and also Rule 15 of Chapter IV of KER. The learned counsel in support of his submissions has further placed reliance on the decisions in Kamaladevi v. Gopalakrishnan (2006(1) KLT 315), Church of South India (C.S.I) Trust Association v. Benoy (2013(2) KLT 991) and Gopalakrishnan v. The Secretary, Corporation of Kollam (2002 (2) KLT 502) 5. The learned counsel for the 5[th] respondent has strenuously opposed the claims and contentions of the petitioner. He has submitted that the property itself belongs to the church which has decided, as it being the usual practice, to conduct Muziriz Christmas Carnival, 2014, only during the vacation period. He has further submitted that the activity proposed to be conducted by the 5[th] respondent does not have any commercial purpose. 6. The learned counsel for the 5[th] respondent has further submitted that in terms of Section 6 of the Act and also Rule 15 of W.P.(C). No. 33724/2014 -3- Chapter IV of KER, the 5[th] respondent has taken all measures including the prior permission of the authorities concerned. In this regard, he has drawn my attention to Exts.R5(b) and R5(c), the proceedings issued by the 4[th] respondent. 7. The learned counsel has further placed reliance on an unreported judgment of this Court in Radhakrishnan K.B. v. State of Kerala & others (W.P.(C) No. 30137 of 2014). According to the learned counsel, an identical issue has been decided by a learned single Judge of this Court, who has eventually held that conducting an annual Christmas carnival cannot be treated as a commercial activity falling foul of either section 6 of the Act or Rule 15 of Chapter IV of KER. 8. Heard the learned counsel for the petitioner and the learned counsel for the 5[th] respondent, apart from perusing the record. 9. Since the learned counsel for the petitioner has laid heavy stress on Section 6 of the Act, it is profitable to extract the same: “6. Restriction on alienation of property of aided school:- (1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous W.P.(C). No. 33724/2014 -4- permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school. (2) Any person aggrieved by an order of the officer refusing or granting permission under sub-section (1) may in such manner and within such time as may be prescribed, appeal to the Government. (3) Any transaction made in contravention of sub-section (1) or sub-section (2) shall be null and void. (4) If any educational agency or the manager of any school acts in contravention of sub-section (1) or of an order passed under subsection (2) Government may withhold any grant to the school. 10. Though restrictions have been placed on sale, mortgage, lease, pledge, charge or transfer of possession of the property in which an aided school has been established, this Court through its judicial interpretation in Church of South India (C.S.I) Trust Association v. Benoy (2013(2) KLT 991), has held that Section 6 has to be given a purposive construction and that any other activity interfering with the principal functioning of the school, namely imparting education, cannot be countenanced and that obtaining prior permission is sine quo non in terms of Rule 15 of Chapter IV of KER. 11. It is further appropriate to examine Rule 15 of Chapter IV of W.P.(C). No. 33724/2014 -5- KER, which reads thus: ## **"15. Use of school building and properties:--** (1) The premises of an educational institution (Government or Private) or any subsidiary building appertaining to it or a playground or vacant site belonging to the institution, whether adjacent to or removed from it, shall ordinarily be used only for the purpose of functions conducted by such institution. But the executive Authority of the local body concerned in the case of an institution under the control of a local body, the District Educational Officer in the case of a Government school and the Manager in the case of a Private school, is empowered to grant permission on such conditions as he deems fit to impose for the use of such building, or ground or site belonging to the institution for holding public functions arranged by the management or by a department of the State or the Government of India or for any other purposes. The authority concerned should obtain the orders of the Director in doubtful cases. ((2) xxxxxxx) (3) All school buildings and properties shall be made available free of rent for the purpose or holding public examinations and teachers meetings under the auspices of the Department or approved by the Government.” 12. As has been held through a series of judgments by this Court, it is not disputed that the premises of an educational institution, if required to be used for any purpose other than imparting education, prior permission of the authorities is incumbent. Indeed in Kamaladevi v. Gopalakrishnan (2006 (1) KLT 315), this Court has held that property rights of owner of the school are only subservient to the welfare of the students and therefore the welfare of W.P.(C). No. 33724/2014 -6- the children statutorily overrides all other rights. In that regard, the court has pointed out that the very section 6 begins with a nonobstante clause. Similarly, in Gopalakrishnan v. The Secretary, Corporation of Kollam (2002(2) KLT 502), this Court has observed that all authorities shall issue appropriate instructions to the educational officers to see that the premises of a school in private sector are not used for any purpose other than educational purpose. 13. Taking all the above aspects into account, recently on 19.12.2012, this Court in W.P.(C) No. 30137 of 2012 rendered a judgment. The facts of the said case would reveal that there too the management decided to have Christmas Carnival, 2012. In fact, in that judgment too, the 5[th] respondent school was the respondent whose decision to conduct Christmas Carnival for 2012 was challenged. Noting the purpose for which the carnival was meant and examining the scope of the statutory position in that regard, a learned single judge of this Court has emphatically laid down that such an activity, as was proposed by the management to be conducted without affecting the educational activities of the school, would not come within the mischief of either Section 6 of the Act or Rule 15 of Chapter W.P.(C). No. 33724/2014 -7- IV of KER. 14. At this juncture, when this Court queried whether in Radhakrishnan's case, the issue of prior permission has fallen for consideration, the learned counsel for the 5[th] respondent has fairly conceded that it does not fallen for consideration. Having sought a short adjournment, the learned counsel has come back by filing additional documents to establish before the court that the 5[th] respondent school did seek prior permission of the 3[rd] respondent through Ext.R5(a) dated 10.11.2014. The 5[th] respondent's representation was answered by the 3[rd] respondent through Ext.R5(b). Strangely though, the 3[rd] respondent has replied that the Manager is the appropriate authority to grant permission for using the school ground, which in my considered opinion, is not correct. The Rule, as well as the Act, quoted above amply establishes that it is the educational authority, who has been cast with the responsibility of determining the issue of putting the school premises for any purposes other than educational use. At any rate, the said defect stands rectified, inasmuch as the petitioner himself submitted Ext.P4 complaint before the 3[rd] respondent thereby inviting Ext.R5(c). A W.P.(C). No. 33724/2014 -8- perusal of the said proceedings of 4[th] respondent in response to the complaint made by the petitioner makes it manifestly clear that the 5[th] respondent school can carry on and conduct the carnival subject to certain conditions. It has further been laid down therein that if the activity is undertaken during school working days, action will be taken under the provisions of the extant rules. 15. In the facts and circumstances, since evidently the 5[th] respondent has obtained the permission of the authorities, especially in the light of the ratio laid down by this Court in Radhakrishnan's case, the objection of the petitioner cannot be sustained. At any rate, it is made clear that, being a concerned parent having his ward in the school, at any point of time, if the petitioner feels that the carnival is being conducted affecting the educational activities of the school, he is at liberty to take remedial steps by approaching the authorities concerned. Accordingly, this writ petition stands disposed of. sd/- DAMA SESHADRI NAIDU, JUDGE. rv W.P.(C). No. 33724/2014 -9-