The petitioners are parents of 3 students studying in the Government Moppila U.P. School, Cherur, Vengara in Malappuram District. It is alleged that the Parent Teachers Association (PTA) is not functioning in the school and the Headmaster has not convened meeting of the PTA, despite specific instructions given by the Director of Public Instructions. It is stated that more than 900 students are studying the school in question, which is situated in a property having an extent of about 2.5 Acres. According to the petitioners, playground of the school is the only playground available within the limits of the Grama Panchayat concerned and it is utilized for conducting various events of games and sports. There arose a dispute with respect to conduct of a Football Tournament in the school playground, which was adjudicated by this court in a writ petition, and further in a writ appeal. In Ext.P2 judgment a Division Bench of this court directed to permit conduct of the Football Tournament in the year 2014, subject to certain conditions stipulated, making it clear that the permission shall not be treated as a precedent for conduct of the Tournament in future. Grievance expressed by the petitioners in the present writ petition is that, the respondents 1 to 7 are taking hasty steps to construct buildings on the playground, in a clandestine manner. It is alleged that the buildings of the school are in an unfit condition, which requires renovation, for which the Government have sanctioned necessary funds. According to the petitioners there is sufficient space available in the compound, apart from the playground, for construction of the buildings. It is also alleged that, construction of new building can be made on the upper portion of the existing buildings. Petitioners alleges that the steps taken to construct the new buildings in the playground is a malafide decision taken by the 6th respondent Grama Panchayat, which is administering the activities of the school. The petitioners are complaining that the decision was taken even without notice to the PTA in a non-transparent manner. It is pointed out that, under Rule 3 of Chapter IV of K.E.R there is specific provisions to the effect that every school should have a suitable playground for games and sports and the site should contain sufficient clear space for the said purpose. It is averred that the playground was being utilized for conduct of Kerala Utsav Mela and Malappuram District Youth Festival, by the Grama Panchayat. A Football Club affiliated to the Kerala Football Association is conducting coaching for students of the said school and other students, in the said playground in question. Allegation is that those persons who have objected the Football Tournament in the playground are now in power in the 6th respondent panchayat and they are making attempts to stall the games being conducted in the playground, by constructing the buildings therein. Parents of students and public have submitted Ext.P4 representation before the 4th respondent. But the respondents are taking further steps to go ahead with the construction, ignoring all the protest, is the averments. Therefore the petitioners seek interference of this court for restraing construction of the proposed buildings in the playground in question.
2. When the writ petition came up for consideration on 14-02-2014 an interim order was issued directing to maintain 'status quo' with respect to construction if any proposed inside the playground. Additional respondents 8 to 11 got themselves impleaded as parents of other students contending that the panchayat has got another playground of about 2 Acres which can be conveniently used for conduct of Football Tournament. According to the additional respondents, construction of the new buildings proposed will not reduce the extent of the playground and it is intended for the welfare of the students and only to cherish the wish of the parents. It is alleged that the writ petition is filed only at the instance of M/s. Diamond Arts and Sports Club, who failed to get favourable orders in conducting the Football Tournament, after Ext.P2 judgment.
The 7th respondent, the Headmaster of the School, had filed counter affidavit stating that the school ground is situated in the middle, surrendered by classrooms on all sides. There is no compound wall separating school buildings and the playground. It is stated that, Government have accorded administrative sanction for construction of new buildings considering deteriorated condition of the existing buildings. An amount of Rs.3.4 Crores has already been sanctioned during the year 2012. The PWD had approved construction of 2 new buildings + 47 toilet facilities for usage by the students. The school buildings are proposed to be constructed without demolishing any old structure, but the toilet rooms will be constructed after demolishing a tiled building which is presently used as Stage-cum-classroom. According to the 7th respondent, even after construction of the proposed new buildings there will be more than sufficient place for the playground, with an extent of 65 X 55 Meters. The approved sketch and plan for the proposed construction is produced ad Exts.R7 (c) & (d). It is stated that there is no other space available within the compound, apart from the area proposed in order to construct the new buildings. The 7th respondent had also alleged that the writ petition is filed only as part of the dispute between the authorities of the club and the Panchayat. It is pointed out that by virtue of Ext.R7 (e) judgment this court had dismissed the writ petition filed by M/s. Diamond Arts and Sports Club seeking direction against the panchayat to permit Football Tournament in the ground in question.
3. The 5th respondent had also filed a statement stating that even after construction of the new buildings, sufficient area will be available to be used as playground. It is stated that, the construction work was awarded after publication of a Tender Notification and the work has started without causing any hindrance to the school activities. If the work is not completed within the expected time, it will adversely affect the interest of the school, because the funds sanctioned by the Government will be lapsed.
4. The 6th respondent Panchayat had filed counter affidavit stating that the panchayat is the custodian of the properties and the building, of the school, which is located at 2.01 Acres of land. The PWD had drawn plan for construction of two classroom buildings with 3 floors, consisting of 18 classrooms, by utilizing funds alloted by the Government. The proposed construction will not encroached upon the playground, which will be protected intact, is the contention. Construction of new buildings after demolition of the existing classrooms will cause hindrance to functioning of the school and the construction now proposed is only to facilitate smooth functioning of the school even during the time of construction. According to the 6th respondent the allegation raised against the panchayat and its officials are totally ill-motivated. There was an incident of attack against the Vice-President of the Panchayat, when she had visited the site to oversee the construction. Exhibit R6 (d) is the FIR and the FI statement with respect to criminal case registered on the basis of the incident. The 6th respondent alleges that this writ petition is filed only as another attempt to prevent the proposed construction, which is made without any bonafides, only at the instance of the authorities of the Club in question.
5. In view of the dispute as to availability of the playground even after completion of the construction, the writ petitioners have applied for appointment of an Advocate Commissioner to conduct a local inspection. This court allowed the application through order dated 04-03- 2014. The Advocate Commissioner had submitted a detailed report answering specific points as directed. The relevant portions of the report is extracted below.
“(i) What exactly is the measurement of the existing playground (Length and width) ?
The courtyard of the school is used as playground. The playground is not demarcated from the building or from the other portions of the property and therefore it is not possible to identify and measure the playground. Therefore the entire courtyard area is taken as playground. A rough sketch showing the courtyard area is produced as ANNEXURE-3. There are existing buildings on the South, East and Northern side of the compound. There is no building on the Western side of the Compound. In Annexure-3, the open area available in the compound is mentioned as A-B-C-D. The distance between the platform having length of 8.15 and width of 2.20 meters protruding from the existing building on the eastern side (B-C line) and the Compound wall on the western side (A-D line) is 75 approximately meters. The distance between building on the southern side (A-B line) and the existing building on the Northern side is 58 meters. The distance between the Building on the Southern side (A-B line) and the C-D line is 52.40 meters. The C-D line is touching the well on the North-eastern corner, which is protruding towards south than the level of other buildings on the Northern side. Therefore there is a gap of 5 meters between the C-D line and the building on the Northern side. The entire compound is in a same level except a small rocky patch of about 2 inch height on the southern side of the compound in front of the proposed construction.
One Goal post is situated on the eastern side of the compound. The distance between the goal post and the existing building is approximately 3 meters. The goal post on the western side is removed and is lying in the compound. On the western side of the compound adjacent to the compound wall foundation trenches are dug for the new building.
(ii) How many buildings are situated in the school compound at present and whether there is any vacant area available within the compound, other than play ground, for construction of the new buildings ?
There are total 3 school buildings in the LP section and one urinal. 5 school buildings, one kitchen and 2 urinals in the UP section. One stage cum class room is also provided on the north-west corner of the compound. In all there are 8 school buildings, 1 kitchen building, 3 urinals and one stage-cum-class room are situated in the compound. There is also a well and water tank on the North-eastern corner near main gate of the compound. There is an open area on the southern side of A-B line in the South-western corner. This area is mainly in the L.P Block. The said open area is also marked as Annexure-3 sketch. The representative of the 6th respondent Panchayat told that the said land is under dispute. The said open area has a width of 15.50 meters on East, 19.90 meters on West, 18.75 meters on North and 12.30 on the southern side. It is also pointed out that the eastern side of the said open space is private land and therefore any construction is possible only after leaving sufficient setback.
(iii) Can it be possible for construction of the new buildings, proposed as per Ext.R7 (a) to R7 (d) plans, without putting up any construction within the area of the play ground ?
A draft sketch of the school compound showing the proposed buildings is produced as ANNEXURE-4. As per Ext.R7 (a) to (d) plans, the building proposed on the southern side is having a width of 8.40 meters and a sunshade having 80 cm. The sunshade proposed is slopping and therefore the horizontal distance from the wall to the end of sunshade is 60 cm. Thus the total width required for the building is 9 meters. The maximum width available on the southern side is 10 meters. As informed by the 5th respondent the proposed building requires 2.5 meters set back as per building rules. So that total width required for the building is 11.50 meters. If the proposed building is constructed as mentioned above it will encroach into the playground mentioned in Annexure-3 plan. The compound wall on the southern side is slanting towards north. So the encroachment into the playground is more in western side.
The width of the proposed building on the western side is 8.50 meters and the horizontal length of the sunshade is 60 cm. Thus the total width of the said building including the sunshade is 9.10 meters and set back required is 2 meters. So the total width required for the proposed building is 11.10 meters. The length of the building is 22.30 meters. As stated earlier, since the playground is not separately demarcated, the area upto the western wall is taken as playground. So the entire site for the proposed building is in the playground.
There is a dilapidated toilet building on the Northern side of the compound. The said toilet building is also marked as Annexure-4 sketch. The 6th respondent informed at the time of inspection that the toilet building is proposed to construct in the same place of the old toilet building. This building is beyond the area marked as playground in Annexure-3 sketch.
(iv) The Commissioner will produce a rough sketch of the compound specifying the existing buildings, playground and vacant area if any left and also produce photographs of the buildings and playground.
Two rough sketches, one of the existing compounds and the playground without the proposed new construction and another showing the proposed construction are produced. Photographs of the buildings and the open compound are produced herewith and marked as ANNEXURE-5 series
(v) The Commissioner will also specify the nature of construction if any started and its stage.
There are 4 pits on the southern side and 8 pits on the western side. The pits on the southern side are incomplete and the pit on the western side are almost complete.”
6. The 6th respondent panchayat had filed objections to the Commission report pointing out certain aspects. This court had perused the report in detail, as well as the plans and photographs submitted by the Advocate Commissioner. Sum and substance of the report is to the effect that the existing playground is not separately demarcated. But it is admitted that construction of the new building will encroach into the courtyard of the school which is now being used as playground. However, the Commissioner had specifically mentioned that there is no vacant space available within the compound other than the playground for the construction of the new buildings. It is evident from the report that the existing playground which is the courtyard of the school buildings is not situated in an exact regular shape (rectangular shape). It is also mentioned that there exists a rocky patch of about 2 inch height within the playground area. However the sketches and photographs produced will clearly indicate that, even after construction of the new buildings there will be considerable space available as playground.
7. Contention of the petitioners is that the 6th respondent panchayat had taken the decision to construct the new buildings at the site, without making any consultation with the PTA of the school. It is submitted that no study with respect to environment impacts was conducted before taking such decision. Utilization of school and its compound for any purposes other than educational needs cannot be permitted. Learned counsel for the petitioners had placed reliance on a decision of this court in order to content that, constructions in areas which are earmarked as open space, parks and other areas cannot be permitted.
8. While examining whether interference of this court in exercise of power vested under Article 226 is warranted or not, prime consideration is as to whether there is violation of any statutory provisions. Admittedly the property of the School in question is vested with the 6th respondent panchayat. The 6th respondent panchayat is the authority vested with administration of the day today affairs of the school. Evidently the Government have alloted funds for construction of new school buildings. There is no specification with respect to the extent of the playground which should be provided in the school. Factually it is evident that the new buildings cannot be constructed in any vacant space available, without there being encroachment into the existing courtyard area, which is now being used as playground. However it is evident that, even after construction of the new buildings considerable area will be available for utilization as playground. Under such circumstances whether there exists any valid reason for this court to interfere with the decision of the Panchayat, is the sole question to be decided. This court is of the considered opinion that the decision taken by the 6th respondent in this regard does not suffer from any illegalities or irregularities. Grievance voiced by the petitioners, as parents of the students, could not be established as fully bonafide. Even assuming that it is only a bonafide endeavour on the part of the petitioners, it has to be presumed that the impugned construction is only to protect better interest of the school and it is intended only for welfare of the students. Hence this court do not find any valid reason to interfere for restraining the construction.
9. Under the above mentioned circumstances the writ petition is devoid of merits and the same is hereby dismissed. However, it is made clear that the respondents 1 to 7 will undertake the construction strictly in accordance with the approved plan without there being any further encroachment into the playground and in a manner such as to protect the balance area of the playground intact, to the possible extent.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge