The Director Of Elementary ... vs Jesus Garden Nursery And Primary ...
2021 Latest Caselaw 9403 Mad

                                                                        W.A.No.644 of 2021


                                 IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 09.04.2021

                                                     CORAM :

                                 THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
                                                  AND
                                     THE HONOURABLE MS. JUSTICE R.N.MANJULA

                                               W.A.No.644 of 2021

                      1.The Director of Elementary Education,
                        DPI Campus, College Road,
                        Chennai - 600 006.

                      2.The Chief Educational Officer,
                        Thiruvallur District, Thiruvallur.

                      3.The District Educational Officer,
                        Ponneri,Thiruvallur District.

                      4.The Block Educational Officer,
                        Minjur - 601 203,
                        Thiruvallur District.                               ..Appellants


                                                         Vs


                      1.Jesus Garden Nursery and Primary School,
                        Voyalur, Minjur - 601 203,
                        Thiruvallur District,
                        Rep. by its Correspondent,
                        M.Ravindran,S/o.S.Manickam.

                      2.The Director of Town and Country Planning,
                        Anna Salai, Chennai - 600 002.

                      3.The Deputy Director of Town and Country Planning,
                        Thiruvallur District,
                        Thiruvallur.                                      ..Respondents



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                                                                                             W.A.No.644 of 2021


                      Prayer: Appeal filed under Clause 15 of the Letters Patent against

                      the order dated 08.07.2019 made in W.P.No.17141 of 2019.

                                 For Appellants                :            Ms.P.Kavitha

                                                                            Government Advocate
                                                                            (Education)

                                 For Respondents :                          Mr.G.Sankaran for R1

                                                                            Mr.J.Pothiraj
                                                                            Special Government Pleader
                                                                            for R2 and R3

                                                        JUDGMENT

(Delivered by M.M.SUNDRESH, J.)

This appeal has been preferred by the appellants being

aggrieved against the order of the learned Single Judge dated

08.07.2019, wherein it has been held as under:

"3. On notice, the learned Government Advocate appearing for the respondents has taken instructions from the respondents and reports that the authorities have inspected the petitioner's institute last week and the request of the petitioner for grant of recognition will be passed in accordance with law, without insisting for production of DTCP approval and in line with the judgment of this Court in W.P.No.20890 of 2016 dated 31.08.2016 which reads as below:

"15. In the result, the writ petitions are partly allowed and the impugned orders of the 1st respondent dated 30.04.2016 made in F.No.Southern/2016/1-28666650491-LOR and F.No.Southern/2016/1-2864028021-LOR respectively, are hereby set aside and the http://www.judis.nic.in

W.A.No.644 of 2021

respondents are directed to conduct necessary inspection in the petitioner's college as to the availability of the infrastructural and other facilities for starting B.Pharm Degree Course by the petitioner's Trusts other than the recruitment of DTCP Approval; and pass appropriate orders as expeditiously as possible so as to enable the petitioners to start academic session relating to the said course at least from the academic year 2017-2018. The petitioners have to pay necessary inspection and other fees to the respondents for the said purpose.

However, in the circumstances for the case, there shall be no order as to costs.

Consequently, the connected miscellaneous petitions are closed."

4.The second respondent is directed to pass order on the application of the petitioner seeking temporary approval vide its proposal dated 25.10.2018 received by the second respondent office on 09.01.2019 within a period of three weeks from today.

5.With the above direction, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed."

2. The respondent/school admittedly started the

institution without recognition. Noticing that a show-cause notice

was issued on two grounds namely, (i) want of recognition and (ii)

want of approval from the authorities under the Town and Country

Planning Act. This show cause notice was challenged before this

Court. By order dated 22.05.2019 in W.P.No.14647 of 2019 the

learned Single Judge passed the following order:

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W.A.No.644 of 2021

"Mr.K.Karthikeyan, learned Government Advocate (Education) takes notice for the respondents. By consent of both the parties, the main writ petition itself is taken up for disposal. The core point that has to be considered is whether the show cause notice, which is challenged in the writ petition is to be set aside.

2.The impugned show cause notice dated 11.05.2019 has been issued by the respondents, calling upon the petitioner school to show cause as to why action should not be taken against the petitioner for running the school without obtaining necessary certificate of Recognition from the competent authority, as per the provisions of Section 18(1) of The Right of Children to Free and Compulsory Education Act, 2009. Learned counsel for the writ petitioner would submit that the petitioner school had already submitted necessary proposal in the prescribed format coupled with supporting documents in the month of October 2018 to the competent authority and the same is also recommended by the Block Educational Officer to the District Educational Officer in Na.Ka.No.441/A2/2018 dated 26.10.2018. However, without passing any orders on the said proposal for recognition, the impugned show cause notice has been issued.

3.Taking into consideration the narrow compass and the facts and circumstances of the case, there shall be a direction to the respondents http://www.judis.nic.in

W.A.No.644 of 2021

to consider and pass orders on the proposal submitted by the writ petitioner, within a period of four weeks from the date of receipt of a copy of this order, and until such time, no coercive steps shall be taken by the respondents. With the above directions, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed."

3. Taking note of the aforesaid order, the Chief

Educational Officer,Thiruvallur District, Thiruvallur, passed a

further order on 29.05.2019 stating that the request is not feasible

for consideration since no prior permission has been obtained and

the approval from the Town and Country Planning Authority has

not been obtained.

4. Thereafter, in the subsequent writ petition filed by the

respondents in W.P.No.17141 of 2019, an order was passed

directing the appellants to consider the request for temporary

approval by taking note of the statement made by the learned

Government Advocate on the basis of an earlier order passed by

this Court, which is sought to be impugned before us in the appeal.

5. Learned Government Advocate(Education) appearing

for the appellants submitted that even assuming the said order

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W.A.No.644 of 2021

passed is a consent order, it is contrary to law, as law mandates

that a Government Advocate is not competent to concede, which is

not binding on the State. The order of the Division Bench of this

Court in W.P.No.17326 of 2013 etc dated 06.07.2018 governs the

field. Therefore, a prior approval is required, particularly when the

building in question not only comes within the purview of a public

building under the Tamil Nadu Panchayats Act followed by the

Rules but also the provisions of the Right to Education Act along

with the Rules governing with specific reference to Rule 12(7)(b)

of the Tamil Nadu Right of Children To Free and Compulsory

Education Rules, 2011. Learned Government Advocate also made

reliance upon the order passed in W.P.No.33526 of 2019 dated

03.12.2019 which once again reiterates the position that the

mandate of the Right to Education Act and Rules with respect to

the compliance of the building for the school cannot be interfered

with.

6. Learned counsel appearing for the contesting

respondent submitted that the order of the learned Single Judge is

only with respect to the temporary recognition for the academic

year. The order of the Division Bench relied upon has to be seen

contextually with respect to the power of the local authority as

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W.A.No.644 of 2021

against the authority constituted under the Town and Country

Planning Act and, therefore, what is required is the compliance of

the process of consultation. Therefore, no interference is required.

7. There is no difficulty in understanding the law laid

down by the Division Bench referred supra. The following

paragraphs of the Division Bench judgment would be apposite:-

"46. In cases, which may include the petitioners herein, where the Executive Authority of the Panchayat might not have consulted either the Joint Director or the Deputy Director of Town and Country Planning before granting permission for construction of public buildings, this Court declares:

(a)In all such cases, the Executive Authority is directed to forward the papers to the Town Planning Authority, who may now consider them, and if required visit the premises in question, and offer his advice if the constructions have complied with all necessary statutory Rules and Regulations, and the latter shall forward his views or opinions to the Executive Authority. If opinions offered are positive, in that if the constructions are found to have complied with the Rules and Regulations and such other legal requirements, then the Executive Authority shall issue an order ratifying his earlier order granting his permission. This will apply only to those public buildings in http://www.judis.nic.in

W.A.No.644 of 2021

the Panchayat area constructed after the coming into force of the Tamil Nadu Panchayat Building Rules, 1997 till today, the date of this Order, and not to any future application for constructions.

(b)Where any permission has been granted by the Executive Authority of the Panchayat without consulting the joint or Deputy Director of Panchayat in terms of Proviso to Rule 25, but no construction has yet commenced, it shall not be commenced, till opinion of the Town Planning Authority is obtained. If the opinion is not negative, then the earlier permission granted shall, subject to other provisions of law, remain in force. If the opinion of the Town Planning Authority is negative, the Executive Authority of the Panchayat shall forthwith cancel the permission earlier granted after following the due process of law.

(c) In cases of partially constructed buildings, no completion certificate or other amenities be provided unless a favourable opinion is given by the Town Planning Authority.

(d) In all cases falling under (a) and (c), if the opinion of the Town Planning Authority is negative, then such authorities as are empowered to initiate action for illegal constructions shall initiate appropriate http://www.judis.nic.in

W.A.No.644 of 2021

actions as per law. The power to grant sanction for construction by the Panchayat is no answer to a builder or a developer violating Rules and Regulations pertaining to construction activities.

47. In conclusion, this Court holds that (a) neither Section 49 nor Section 111(3)(b) of the Tamil Nadu Town and Country Planning Act is unconstitutional;

(b) Sec.111(3)(b) of the TCP Act, to the extent it relates to constructions made without permission under Sec.49 of the TCP Act after the commencement of Tamil Nadu Panchayat Building Rules, 1997, is declared inoperable, and accordingly, subject to the declaration/directions given in paragraphs 44 and 46, the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed."

8. From the aforesaid paragraphs, it is clear that the

Division Bench was primarily concerned with the provisions of the

Tamil Nadu Panchayat Building Rules vis-a-vis the Town and

Country Planning Act. Therefore, there is no reference with respect

to the provisions of the The Right of Children to Free and

Compulsory Education Act, 2009 and The Right of Children to Free

and Compulsory Education Rules, 2010 with specific reference to

the schedule which requires a specification to be complied with.

The Division Bench referred supra has rightly adopted the principle

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W.A.No.644 of 2021

governing the harmonious construction.

9. In the case on hand, the learned Single Judge on the

earlier occasion has given interim protection to the first

respondent, which has not been appealed against. Therefore, the

first respondent is entitled for the continuation with the interim

recognition for the academic year 2020-2021 alone. Law certainly

requires the approval from the authority constituted under the

Town and Country Planning Act in tune with the provisions of the

The Right of Children to Free and Compulsory Education Act, 2009

and The Right of Children to Free and Compulsory Education Rules,

2010. We are not dealing with a public building per se under the

Tamil Nadu Panchayat Act and Rules. In other words, the building

in question is not only a public building but a building which

requires to be constructed and thereafter function in tune with the

provisions of the The Right of Children to Free and Compulsory

Education Act, 2009 and The Right of Children to Free and

Compulsory Education Rules, 2010 with specific reference to the

schedule mentioned thereunder.

10. There is a distinction between seeking concurrence

and approval. When we deal with the public building under the

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W.A.No.644 of 2021

Panchayat Act and the Rules vis-a-vis the Town and Country

Planning Act, what is required is a concurrence. However, when

such a building also acquires a character of a building under the

Right to Education Act and Rules then there is no question of

concurrence but an approval is required. This we hold so even after

reading the order of the Division Bench referred supra. Though,

the Division Bench, at the cost of repetition by us, dealt with the

provisions of the Panchayat Act and Rules on the one hand and the

provisions of the Town and Country Planning Act on the other, it

has not got/brought to the notice of the provisions of the Right to

Education Act and Rules. We do not wish to stand on the

technicalities. We also do not wish to take away the power of the

local authority with respect to a public building and multi-storied

building. However, the role is distinct and different. The local body

is concerned with the compliance of the multi-storied building and

the public building and, therefore, it has got nothing to do with the

requirement under the Right to Education Act and Rules. This

compliance is to be made only under the Town and Country

Planning and by the authority alone. Therefore, the building meant

to be used for a school though multi-storied building and public

building, the role required to be played is distinct and different.

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W.A.No.644 of 2021

11. Having come to the said conclusion, we do not wish to

take away the role of the local authority. Therefore, the local

authority is expected to comply with its role and part in accordance

with law excluding the one which is required to be played under

the Right to Education Act and Rules which role is distinctly

assigned to the authority constituted under the Town and Country

Planning Act while granting approval. Whether it is a question of

concurrence or approval, when it comes to a building used for a

school, ultimate decision lies with the authority constituted under

the Town and Country Planning Act. Therefore, for such a building,

a duty is enjoined upon the authority constituted under the Town

and Country Planning Act to see to it and satisfy with the

parameters required under the Right to Education Act and the

Rules are also satisfied other than the requirements mandated

under the Tamil Nadu Panchayat Act and the Rules along with the

Town and Country Planning Act. This would satisfy the compliance

of all the three enactments.

12. Now, the ball is in the court of the Town and Country

Planning Authorities, namely, The Joint Director or the Deputy

Director,Town and Country Planning, Thiruvallur. Therefore, the

said authority is expected to pass appropriate orders on the

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W.A.No.644 of 2021

concurrence sought for by the local authority and while doing so, it

has to do its independent role in satisfying that the provisions of

the Right to Education Act and the Rules are also complied with.

While taking a final decision, the said authority has to decide as to

whether the approval is to be given or not. In such a case, it is not

a question of concurrence but one of approval. Though the local

body has sought for such an approval, we are dealing with the

building which is to be used for a school in compliance with the

provisions of the Right to Education and the Rules as well.

13. Though the aforesaid authority is not a party to the

proceedings, we are inclined to pass an order directing it to pass

appropriate orders in the light of the observations made above

within a period of eight weeks form the date of receipt of a copy of

this judgment. We also make it clear that the temporary approval

granted as ordered by the learned Single Judge on the earlier

occasion is meant only for the academic year 2020-2021 alone

and, therefore, without the approval from the DTCP and thereafter

getting the further approval from the appellants, the school in

question, the first respondent herein, shall not start the institution.

The writ appeal stands disposed of accordingly. No costs.

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W.A.No.644 of 2021

C.M.P.No.2906 of 2021 is closed.

                                                           (M.M.S., J.)     (R.N.M., J.)
                                                                     09.04.2021
                      Internet : Yes/No
                      ssm



                      To:

                      1.The Correspondent,

Jesus Garden Nursery and Primary School, Voyalur, Minjur - 601 203, Thiruvallur District,

2.The Director of Town and Country Planning, Anna Salai, Chennai - 600 002.

3.The Deputy Director of Town and Country Planning, Thiruvallur District, Thiruvallur.

http://www.judis.nic.in

W.A.No.644 of 2021

M.M.SUNDRESH,J.

and R.N.MANJULA,J.

(ssm)

W.A.No.644 of 2021

09.04.2021

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