St. Johns LP School, Manappilly v. Kuzhipilly Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935** ## **WP(C).No. 37621 of 2010 (C)** **----------------------------** ## **PETITIONER :** **--------------------------** **ST.JOHNS LP SCHOOL, MANAPPILLY, AYYAMPILLY P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGER, SMT. MINI ANTONY, AGED 41 YEARS, W/O. VARGHESE, RESIDING AT MALIAKKAL HOUSE, THONNYAKAVU, PARVUR P.O., ERNAKULAM DISTRICT.** **BY ADVS.SRI.JAWAHAR JOSE SRI.G.BALAMURALEEDHARAN (PARAVUR)** **RESPONDENT :** **----------------------------** **KUZHIPILLY GRAMA PANCHAYATH, AYYAMPILLY P.O., ERNAKULAM DISTRICT-682 501, REPRESENTED BY ITS SECRETARY.** **BY SRI.H.B.SHENOY,SC,KUZHIPILLY GRAMA PANCHAYATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2012, THE COURT ON 19-12-2013 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.37621/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE COMMUNICATIONS SENT BY THE ERSTWHILE MANAGER TO THE EDUCATIONAL AUTHORITIES** - **P2 COPY OF THE ORDER DATED 1/12/1982 PASSED BY THE AEO** - **P3 COPY OF THE ORDER DATED 16/6/2010 PASSED BY THE DEPUTY DIRECTOR (EDUCATION), ERNAKULAM** - **P4 COPY OF THE CERTIFICATE DATED 19/6/2010 ISSUED BY THE KUZHIPILLY VILLAGE OFFICER** - **P5 COPY OF THE ORDER DATED 3/7/2010 PASSED BY THE SECRETARY OF THE KUZHIPILLY PANCHAYATH** - **P6 COPY OF THE DIRECTION DATED 2/9/2010 ISSUED BY THE ERNAKULAM DISTRICT COLLECTOR.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.37621 of 2010 ------------------------------Dated 19[th] December, 2013 ## **JUDGMENT** The petitioner claims to be the owner of an extent of 14.04 ares of land in Resurvey No.132/13 of Kuzhuppilly Village in Ernakulam District. This writ petition has been filed on being aggrieved by the refusal on the part of the respondent for granting permission to construct three class rooms, a computer room and a toilet in the aforesaid property. 2. The contention of the petitioner is that the petitioner school was established in the year 1930 by one M.V.Chacko, Thottumpurath House, P.O.Ayyampilly. According to the petitioner, it was established in the property entrusted to the said Chacko as a trustee by one Mazhuvancherry Parambath Annamma Jacob and the property was entrusted for the purpose of establishing a school, for the benefit of general public. It is the contention of the petitioner that the said Chacko being the trustee became the owner of the property from the moment the property was entrusted to him. The further contentions are as follows:- WP(C).No.37621/2010 2 The aforesaid Chacko was the Manager of the school since its establishment, till 1.2.1982 and on account of his old age and ailment from heart disease he transferred the ownership and management of the school in favour of the staff of the school. As per Ext.P1, the said Chacko requested the educational authorities for effecting transfer of ownership and management in favour of the staff of the school and as per Ext.P2, the permission sought for was granted. Thereupon, from 1.12.1981, the school is being managed by the staff of the school and Headmaster of the school is acting as its Manager. There are altogether 105 students and 4 teachers in the school and out of 105 students, 50 students belong to scheduled caste/tribe Community. The school functions in an old building having more than 40 years and at present there are 7 class rooms in the school. While so, as per Ext.P3, the Deputy Director of Education, Ernakulam sanctioned an amount of Rs.15 lakhs to the school for constructing three class rooms, a computer room and a toilet under the Tsunami Rehabilitation Programme on condition that the project would be completed before 31.8.2010. For carrying out construction utilising the amount sanctioned as per Ext.P3 the petitioner applied for permit for construction under the provisions of Kerala Municipality Building Rules, 1999 (KMBR) and along with the application the petitioner WP(C).No.37621/2010 3 submitted Ext.P4 certificate. Ext.P4 carries the certification to the effect that the petitioner school is functioning in a property having an extent of 14.04 ares of land comprised in Resurvey No.132/13 of Kuzhuppilly Village. It is further certified therein that the said property lies in the Thandaper of one Annamma Jacob (Poonaliparambu) Tharavattam, Ayyampilly. Obviously, the said application filed by the petitioner for building permit was rejected as per Ext.P5 order dated 3.7.2010. After the receipt of Ext.P5 the petitioner approached the District Collector, Ernakulam seeking a direction to the respondent for granting the building permit as sought for. I may hasten to add here as to what exactly is the enabling provision to seek such a direction from the District Collector has not been brought to my attention. The District Collector after taking reports from Tahsildar, Kochi directed the respondent to issue building permit to the petitioner after verifying the “ _Kaivasha Register_ ” in case the said register contains the name of the school, as per Ext.P6. However, the name of the school is not included in the “ _Kaivasha Register_ ”. It is in the said circumstances that aggrieved by the order in Ext.P5 the petitioner filed the captioned writ petition mainly seeking the following reliefs:- - I. Issue a writ, order or direction in the nature of certiorari quashing Ext.P5 order; WP(C).No.37621/2010 4 - II.Declare that the petitioner as a trustee, is having ownership over the property where the school situates; - III.Issue a writ, order or direction in the nature of mandamus directing the respondent to issue building permit to the petitioners for constructing the school building; - IV.Declare that the petitioner is legally eligible to get the building permit and that the respondents are legally bound to issue building permit to the petitioners. 3.The main contention of the petitioner is that nowhere in any statute it is provided that there can be ownership in respect of a person only if he/she is holding a document revealing his title over the same. The reason as per Ext.P5 for rejecting the request is that the petitioner had not submitted title deed of the property in question and according to the petitioner, the sand that the possession certificate along with the application for the aforesaid purpose would be considered only on production of such documents is per se illegal. It is the further contention of the petitioner that the ownership of the property vested with Sri.M.V.Chacko in the year 1930 on the moment it was entrusted to him for the benefits of general public. It is submitted that, in the said circumstances, an implied trust was constituted with Smt.Annamma Jacob as the settler, Sri.M.V.Chacko as the trustee and the general public WP(C).No.37621/2010 5 as the beneficiaries. According to the petitioner, in such circumstances, the right of Sri.M.V.Chacko is alienable and in fact, it is transferred in favour of the staff of the school in the year 1982 as is obvious from Exts.P1 and P2. According to the petitioner, in such circumstances, there is absolutely no need to produce the title documents for getting permit for construction in the property in question. That apart, it is contended that since 1930 nobody had ever claimed any right whatsoever over the property and nobody had paid land tax in respect of the said property. Therefore, a possible presumption, according to the petitioner, could be drawn that the property is an open land apart from the presumption that there is an implied trust as regards the property. It is the contention that once it is taken that it is an open land, the principle “title follows possession” applies and since nobody had claimed any right over the property the petitioner's title over the property could not be doubted. It is also contended that, from Ext.P4 it is evident that when the permission was sought for the property was in the possession of the petitioner and therefore, according to the petitioner, the respondent should not have insisted for another certificate for establishing the possession. Lastly, it is contended that the respondent ought to have taken note of the fact that the building permit is necessitated for the benefit of general public. WP(C).No.37621/2010 6 In the light of such contentions the petitioner seeks for issuance of a writ of certiorari quashing Ext.P5 order and seeking declarations to the effect that the petitioner, as a trustee, is having ownership over the property where the school situates and also that the petitioner is legally eligible to get the building permit and that the respondent is legally bound to issue building permit to the petitioner. The further prayer is for issuance of a writ in the nature of mandamus commanding the respondent to issue building permit to the petitioner for constructing the school building. 4. Though notice was issued to the respondent, the respondent had not chosen to enter appearance and resist the contentions. However, that cannot by itself be a reason for granting the reliefs sought for by the petitioner. Essentially, taking note of the nature of the reliefs sought for I am of the view that the petitioner has to establish the entitlement to the reliefs. 5. The contentions of the petitioner would reveal that the school in question was established in the year 1930 in the property belonging to one Annamma Jacob and she entrusted the same with one M.V.Chacko, Thottumpurath House, Ayyampilly P.O for the purpose of WP(C).No.37621/2010 7 establishing a school for the benefit of general public. Despite such pleadings no document revealing such a transaction has been produced by the petitioner. True that, even in the absence of any such document, the attending facts would reveal that in the property a school was established by Sri.M.V.Chacko. But, then even according to the petitioner, the said M.V Chacko's status is only that of a trustee. Going by the contention and the documents produced by the petitioner, Smt.Annamma Jacob is the owner of the property in question that was entrusted to Sri.M.V.Chacko for the purpose of establishing a school for the benefit of general public. In this context, Section 5 of the Indian Trusts Act, 1882 has to be looked into. Going by Section 5 no trust in relation to immovable property is valid unless declared by a nontestamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. Going by the contentions if a non-testamentary instrument in writing is there in respect of the property concerned, Smt.Annamma Jacob is the author of the trust and Sri.M.V.Jacob would be the trustee and the general public would be the beneficiary. No testamentary instrument in writing signed either by the author of the trust or trustee and registered is produced. So also, there is no case for the petitioner WP(C).No.37621/2010 8 that there is will of the author of the trust or of the trustee registered in respect of the property in question. Going by Section 6, a trust could also be created, subject to the provisions of Section 5, when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee. As noticed hereinbefore, no document has been produced in this case to support the contention of creation of a trust in favour of Sri.M.V.Chacko, the trustee, by Smt.Annamma Jacob. At any rate, the contentions of the petitioner is one of creation of a trust and if it is taken as correct it would only make Sri.M.V.Chacko the trustee. Neither Annamma Jacob nor M.V.Chacko has been made a party to this writ petition. Even in the absence of them in the party array and even if the contentions are taken as correct it would only suggest that Sri.M.V.Chacko is the trustee of the trustproperty in question and that it was transfered for the purpose of establishing school for the benefit of general public. Going by Section 14, the trustee must not for himself or another set up or aid any title to the trust-property adverse to the interest of the beneficiary. The rights WP(C).No.37621/2010 9 and powers of trustees are dealt with in Chapter V of the Indian Trusts Act, 1882. Going by Section 31 of the Act, a trustee is entitled to have in his possession the instrument of trust and all documents of title (if any) relating solely to the trust-property. The general authority of a trustee is dealt with under Section 36 of the Act and going by Section 47, a trustee cannot delegate his office or any of his duties either to a cotrustee or to a stranger, unless the instrument of trust so provides or the delegation is in the regular course of business or the delegation is necessary or the beneficiary, being competent to contract, consents to the delegation. In the decision in **State Bank of India** v. **Special Secretary Land & Land Revenue & Reforms & Land & Land Utilisation Deptt. of W.B. and Others (1995 Supp (4) SCC 30)** the Hon'ble Apex Court held that a trustee would become trust property's owner for the purpose of effectively executing or administering the trust for the benefit of beneficiaries and for due administration thereof but not for any other purpose. In the light of the said decision and the provisions under the Act referred hereinbefore, the contention of the petitioner that the petitioner became the trustee and that the ownership is vested with the petitioner as the aforementioned Chacko who was the trustee in respect of the property on the moment of entrustment of the WP(C).No.37621/2010 10 property became its owner and thereafter transferred the ownership and management of the school and the property to the petitioner could not be sustained. In the light of the decision referred supra, even if trust was created in respect of the property for the purpose mentioned hereinbefore, the aforesaid Chacko, the trustee, became its owner only for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof and not for any other purpose. Therefore, the question is what is the legal basis for the contention that the aforesaid Chacko who was the trustee in respect of the property concerned on the moment of its transfer became the owner of the property and thereafter transferred the ownership of the property as also the management to the petitioner. In respect of the title over the property, the question is whether mere issuance of Ext.P2 would confer title over the property to the petitioner. Going by the very pleadings of the petitioner, Smt.Annamma Jacob was the owner of the property in question and it was entrusted as trust to Sri.M.V.Chacko only for the purpose of establishing a school. In such circumstances, the question is whether Smt.Annamma Jacob is alive and if she is no more whether the ownership would devolve on her legal heirs and how can Sri.M.V.Chacko claim ownership over the property? Even according to WP(C).No.37621/2010 11 the petitioner, in Ext.P4 the Village Officer certified only to the effect that in respect of the property in question the owner is one Annamma Jacob and in that property the school is functioning. Even for argument sake it is taken that the District Collector is having the right to issue Ext.P6 directing the respondent to grant building permit after verifying the “ _Kaivasha Register_ ” it is the admitted fact that the name of the school is not included in the “ _Kaivasha Register_ ”. Relying on the decision of this Court in **Mammunhi Alias Mahammad Beery** v. **Kunhibi (1960 KLT** **1343),** the petitioner contended that the respondent cannot insist for the production of title deeds to verify the ownership of the property before granting the building permit. However, when admittedly Ext.P4 was produced by the petitioner before the respondent and it reveals that the owner of the land is Smt. Annamma Jacob though the school situates in the said property and the name of the school is not included in the “ _Kaivasha Register”_ the respondent's action can be taken only as a responsible reaction. For all these reasons, I am of the view that to get a declaration that the petitioner is the owner of the property in question necessarily the petitioner has to establish the ownership in an appropriately instituted suit, in accordance with law or has to perfect the title. At any rate, issuance of Ext.P2 would not and could not confer WP(C).No.37621/2010 12 ownership over the property in question to the petitioner and the respondent cannot be compelled to act upon it and to treat the petitioner as the owner of the property for the purpose of granting permit for carrying out construction in the property. The learned counsel for the petitioner has also relied on the meaning of the word `bona fide possessor' in the Black's Law Dictionary 6[th] Edition. Going by the same, `bona fide possessor' means one who not only supposes himself to be the true proprietor of the land, but who is ignorant that is title is contested by some other person claiming a better right to it. In the light of Ext.P4, and in view of the contentions raised by the petitioner referred to hereinbefore, it cannot be said that the petitioner is unaware of the fact that Smt.Annamma Jacob is the owner of the property and she entrusted the property in question to Sri.M.V.Chacko as a trustee for the purpose of establishing a school for the benefit of general public. Even if Smt.Annamma Jacob had breathed her last the ownership would devolve on her legal heirs. Whether the petitioner could perfect his title, if any, is not a matter which could be adjudicated in this proceedings. At any rate, the petitioner cannot seek for a declaration that the petitioner later became the trustee and thereby the petitioner became the owner of the property in which the school situates. For the aforesaid reasons, I am of WP(C).No.37621/2010 13 the view that the petitioner is not entitled to any of the reliefs sought for in this writ petition. The writ petition is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS