St. Antony's Higher Secondary School, Valiyathura, Thiruvananthapuram v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** ## **WP(C).No.2114 OF 2019(L)** ## **PETITIONER/S:** **ST.ANTONYS HIGHER SECONDARY SCHOOL, VALIYATHURA, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER REV.FR.MELKON,** **BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (U) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** - **3 THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** - **4 THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM.** - **5 THE TAHSILDAR, TALUK OFFICE, THIRUVANANTHAPURAM.** - **6 THE VILLAGE OFFICER, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.** - **R1 BY GOVERNMENT PLEADER** ## **Shri RANJITH THAMPAN ADDL AG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0402-2020, THE COURT ON 26-02-2020 DELIVERED THE FOLLOWING:** Wpc 2114/2019 ## **JUDGMENT** ## **Dated this the 26th day of February 2020** The petitioner is an aided school at Valiyathura in Thiruvananthapuram District. The school is managed by St. Antony's Forane Church. The dispute in this case is related to rejection of the petitioner's application for assignment of land in the light of the government order, G.O. (MS).No.201/2005/RD, dated 18.6.2005. Ext.P1 is the said order. 2. The State Government, by the above order, decided to assign land to aided schools run by corporate agencies. The said government order stipulates certain conditions which are as follows: - i. The schools run by individual are not covered by the government order. - ii. The land value is fixed at Rs.100/- per cent for the land to be assigned. ``` WPC 2114/2019 ``` -:2:- iii. If there are any arrears of lease rent for other dues in respect of the land which is in occupation of the schools, it shall be written off. iv. The lease rent shall be considered at 1% as deemed arrears and such arrears shall be written off. 3. The petitioner was given 3 acres and 94 cents of land lying near to the school in the year 1957 on lease. The petitioner's case is that they had paid rent upto the year 1995, and on 24.9.2004, they received a demand notice directing them to pay a sum of Rs.23,75,908/- towards arrears of lease rent for the period from 1.1.1995 till 31.3.2004. Thereafter, they approached the Government to write off the said amount. In the meanwhile, the Government Order dated 18.6.2005 came into force and the petitioner moved the Honourable Minister for Revenue to obtain the benefit of the aforesaid Government Order. The petitioner received an eviction notice under the Land Conservancy Act. Accordingly, the petitioner approached this Court in W.P.(C) No.4707/2010. Noting that the petitioner had submitted an application for assignment, this Court ordered consideration ``` WPC 2114/2019 ``` -:3:- of the application by the Tahsildar, Thiruvananthapuram. The Tahsildar passed an order stating that subject matter of assignment is vested with the Government and therefore, he would forward a report to the higher authority. Thereafter, the petitioner approached this Court in W.P.(C) No.21918/2012. Therein, this Court directed the Revenue Secretary, Government of Kerala, to take a decision in the matter. 4. The Government, thereafter, passed G.O. (MS).No.456/2014/RD, dated 04.11.2014 ordering resumption of land. It is noted therein that the land is situated 183 metres away from the Thiruvananthapuram Airport and, therefore, cannot be assigned. Thereafter, the Government claims to have taken over the land as seen from Ext.P9 report of the Village Officer. Challenging the Government's decision, the petitioner filed W.P.(C) No.34308/2014. This Court disposed the said writ petition directing the Government to take a fresh decision in the light of the government order dated 18.6.2005 and further ordered that _status quo_ shall be maintained till a decision is taken in ``` WPC 2114/2019 ``` ## -:4:- the matter. The Government passed an order on 11.11.2015 rejecting the claim of the petitioner and reiterating the same reasons in the order which was subjected to challenge in W.P.(C) No.34308/2014. Alleging non-compliance, a contempt case was filed. The Government also filed a review petition to review the judgment in W.P.(C) No.34308/2014. Thereafter, the Government withdrew the order. Accordingly, the contempt case was closed. The review petition was also dismissed. 5. The Government made an attempt to settle the dispute. The petitioner confined their claim to 2.50 acres and agreed to surrender the balance land to the Government. The petitioner again approached this Court in W.P.(C) No.28676/2018 for an expeditious conclusion of the matter. Thereafter, the Government passed the impugned order in this matter. Ext.P20 is the said order. 6. By the impugned order dated 24.12.2018, the Government rejected the application for assignment. The following reasons were assigned in the impugned order for rejecting the assignment: ``` WPC 2114/2019 ``` -:5:- i. The petitioner shifted the playground to a distance of 700 metres from the school, near to Valiyathura St. Anthony's Church. ii. The said land is required for rehabilitating fishermen. iii. The petitioner's school is having two playgrounds in their possession. iv. The petitioner is not a corporate management and, therefore, is not entitled for assignment as per the government order dated 18.6.2005. v. The Government requires 2.94 acres for rehabilitation of fishermen and the balance 1 acre can be retained as a common playground for nearby Higher Secondary School, L.P.School and local people. 7. The learned counsel for the petitioner, Sri.D.Kishore argued that the issue in regard to the assignment was concluded by the judgment of this Court in W.P.(C) No.34308/2014 and therefore, the Government has to consider the application confining its enquiry within the parameters of the government order dated 18.06.2005. ``` WPC 2114/2019 ``` -:6:- According to the petitioner, the School is managed by St. Antony's Forane Church which is a corporate agency as defined under the Kerala Education Act and Rules and, therefore, the petitioner is entitled for assignment. 8. Per contra, the learned Additional Advocate General, Sri.Renjith Thampan referred to another order, G.O. (MS).No.280/11/RD, dated 27.7.2011. By the said order, the Government decided to confine the assignment of public land based on the guidelines referred therein. It is appropriate to refer to clause 4 of the aforesaid government order, which reads thus: “ _4. Assignment of land for institutional purpose i.e., for purpose other than personal housing will continue to be exercised in Government in Revenue Department. Lease orders issued in the past by any other authority will stand cancelled and the lessee will need to apply to Government which will be examined based on the present guidelines.”_ 9. The Government issued guidelines for assignment of land for commercial purposes including infrastructure requirement of schools, hospitals, etc. based on lease for a period of 10 years, maximum extendable upto 30 years. In principle, the Government decided to assign land only for public use. ``` WPC 2114/2019 ``` ## -:7:- 10. Thereafter, the Government issued another order, G.O.(MS).No.123/2018/RD, dated 26.3.2018 clarifying the government order dated 27.7.2011. It is stated therein that the government order dated 18.6.2005 would stand revoked based on the government order dated 27.7.2011. 11. This Court, while disposing W.P.(C).No.34308/2014 on 29.6.2015 had only adverted to the government order dated 18.6.2005. There was a failure on the side of the Government in bringing to the attention of this Court the subsequent government order dated 27.7.2011. 12. There is no vested right for an applicant of public land to get land assigned. No right is accrued to the petitioner to obtain assignment of land, as and when they made an application for assignment. The right to obtain assignment would depend upon the law that would be applicable at the time of consideration of the application. {See **Howrah Municipal Corpn. And Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663]}** . Therefore, the direction of this Court in W.P.(C). No.34308/2014 can be construed only to consider the application in accordance ``` WPC 2114/2019 ``` ## -:8:- with the government order dated 18.6.2005 modified from time to time. The issue was not concluded in the aforesaid judgment. This Court, taking note of the fact that the Government had no occasion to consider the right of the petitioner to obtain assignment based on the application made as per the government order dated 18.6.2005, only directed the Government to consider the application. This Court even did not hold that the petitioner would be entitled for assignment of the land. Therefore, it is open for the Government to consider the application based on the subsequent government order which was prevailing at the time of consideration of the application. 13. Apart from the fact that government order dated 18.6.2005 stood revoked subsequently by government order dated 27.7.2011, even if the petitioner's claim is considered based on the government order dated 18.6.2005, this Court is of the view that the petitioner is not entitled for assignment for the reasons stated hereafter. 14. The land is a precious natural resource. The history of Kerala is the history of struggle for right to ``` WPC 2114/2019 ``` -:9:- land. The State faces acute shortage of land even for its own purposes. The land being scarce natural resource, a prudent distribution of the public land is the challenge faced by the Government. This Court in **Mahindra Holidays & Resorts India Limited v. State of Kerala [2019 (2) KLT 973],** after referring to the public trust doctrine had taken the view that the Government cannot assign land on their whims and fancies and the Government can distribute the land only adhering to the principles of public trust. It is further opined therein that no land can be assigned ignoring public interest. 15. The government order dated 18.6.2005 gives enough leverage for arbitrary assignment of public land. The Court has to read public interest along with the enumerated conditions therein to weed out arbitrariness, considering the repository power, the Government wields based on public trust doctrine. The Government cannot assign land to a corporate educational agency to amass land and to enrich themselves. The educational institutional can claim land only if it is necessary to promote their educational ``` WPC 2114/2019 ``` ## -:10:- activities. If any of the schools lack infrastructural facilities like playground and building, etc. the Government could have considered such claim. The Government has to consider each of the claim based on individual requirement subserving public interest. If there is no element of public interest involving claim for assignment, even if the petitioner fulfils all the conditions in the government order, the Government cannot assign the land to the petitioner. The Government can only assign the land on objective criteria based on individual requirement having element of public interest. The public interest being paramount consideration, no vested right is created on an applicant to obtain assignment of public land. 16. The petitioner had not made out any case based on public interest to claim assignment on registry of government land. The petitioner is having playground of their own. There is no lack of infrastructural facility. Further, the Government in its impugned order decided to keep 1 acre of land as a common playground. This would facilitate the petitioner's school to have additional ``` WPC 2114/2019 ``` ## -:11:- playground for the pupils studying in their school. A Division Bench of this Court also in **Varkey Abraham v. Secretary to Government (Revenue Department) and Others [2007 (3) KHC 365]** had held that the land is not intended for enriching persons who hold extensive lands and there is no vested right in any person to claim assignment on registry of government land. In the light of the above, there is no scope for interference with the impugned order. Accordingly, the writ petition fails and it is, accordingly, dismissed. No costs. **Sd/-** ## **A.MUHAMED MUSTAQUE** ln/ms **JUDGE** ``` WPC 2114/2019 ``` ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE G.O.(MS)201/05/REVENUE DATED 16.6.2005 OF 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 1.3.2010 IN W.P.(C) 4707 OF 2010 OF THIS HONOURABLE COURT. EXHIBIT P3 TRUE COPY OF THE REPORT NO.118/11 DATED 28.1.2011 OF THE 6TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.B5-9066 DATED 5.2.2011 OF THE 5TH RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 20.9.2012 IN W.P.(C) 21918 OF 2012 OF THIS HONOURABLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.9267/U1/2013/RD DATED 24.3.2014 OF THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE SUBMISSION DATED 17.7.2014 ALONG WITH THE SCHOOL ACCOUNT DETAILS MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE G.O.(MS)NO.456/2014 RD DATED 4.11.2014 OF THE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS NO.903/14 DATED 11.12.2014 OF THE 6TH RESPONDENT ALONG WITH THE MAHAZAR DATED 9.12.2014 GOVERNMENT ORDER DATED 4.11.2014 AND THE LOCATION SKETCH.** **EXHIBIT P10 TRUE COPY OF THE ASSIGNMENT OF LAND WITHIN MUNICIPAL AND CORPORATION AREAS RULES 1995.** - **EXHIBIT P11 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN W.P.(C)34308/2014.** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 29.6.2015 IN W.P.(C) 34308/2014 OF THIS HONOURABLE COURT.** **EXHIBIT P13 TRUE COPY OF THE G.O.(MS) NO.594/2015/RD DATED 11.11.2015 OF THE 1ST RESPONDENT.** **WPC 2114/2019 APPENDIX:** **TRUE COPY OF THE ORDER DATED 15.11.2016 IN EXHIBIT P14 R.P.961/2016 IN W.P.(C)34308/2014 OF THIS HONOURABLE COURT. EXHIBIT P15 TRUE COPY OF THE G.O.(MS) NO.586/2016/RD DATED 3.12.2016 OF THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF THE PROCEEDINGS NO.79396/U1/2015/RD DATED 21.2.2017 OF THE 1ST RESPONDENT. EXHIBIT P17 TRUE COPY OF THE SUBMISSION DATED 9.3.2017 OF THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 5.7.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 9.11.2018 IN W.P.(C)28676/2018 OF THIS HONOURABLE COURT. EXHIBIT P20 TRUE COPY OF THE G.O.(MS) NO.476/2018/REV. DATED 24.12.2018 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENTS EXTS: EXT.R1(A) TRUE COPY OF LETTER ISSUED BY ADDL.CHIEF SECY TO GOVT TO ALL DISTRICT COLLECTORS DT/12/6/2006 EXT.R1(B) TRUE PHOTOCOPY OF GO MS 280/2011/RD 27.7.2011 EXT.R1(C) TRUE PHOTOCOPY OF GO MS 123/2018/RD 26.3.2018 EXT.R1(D) TRUE COPY OF REPORT OF THE DISTRICT COLLECTOR DT.14.6.2017 EXT.R1(E) TRUE PHOTOCOPY OF MINUTES OF MEETING HELD ON 19.7.2018**