No Acts & Articles mentioned in this case
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W.P.No.32993 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON
22.10.2024 22.11.2024
CORAM:
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.32993 OF 2023
AND
W.M.P. NOS.32689 TO 32691 & 26242 OF 2023
W.M.P. NOS.7123 & 7126 OF 2024
The Church of South India Trust Association
Rep. By its Power of Attorney
Mr. S.Rajendran, Diocesan Treasurer
Tiruchirappalli – Thanjavur Diocese
CSI Diocesan Office
Puthur, Tiruchirappalli 620 017. .. Petitioner
- Vs –
1. The Revenue Divisional Officer
V.O.C. Road, Mannargudi
Tamil Nadu 614 001.
2. The Tahsildar,
Taluk Office Road, Mannargudi, Tamil Nadu 614 001.
3. The Revenue Inspector
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Taluk Office Road
Mannargudi, Tamil Nadu 614 001.
4. The Sports Development Authority of Tamil Nadu
Rep. By its Member Secretary
Jawaharlal Nehur Stadium Raja Muthiah Road
Periyamet, Chennai 600 003.
5. The Director of School Education
DPI Campus, College Road
Chennai 600 006.
6.The Chief Educational Officer
Thiruvarur District
Thiruvarur. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorarified mandamus calling for the
records relating to the impugned notice vide cK180/2023/tUM issued by the
3
rd
respondent on 15.09.2023 and quash the same as illegal, arbitrary, an
abuse of process of law and issued without any authority in law and
consequently forbear the respondents from proceeding further and taking any
steps whatsoever pursuant to the impugned notice vide cK180/2023/tUM
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issued by the 3
rd
respondent on 15.09.2023.
For Petitioner :Mr. T.Mohan, SC, for
M/s.Cibi Vishnu
For
Respondents
:Mr. P.Wilson, Spl. SC, Assisted
by Mr. U.Bharanidharan, AGP
for RR-1 to 3
Mr.Richardson Wilson for R-4
O R D E R
The present petition seeks quashment of the notice issued by the 3
rd
respondent calling upon objections from persons interested with regard to
transfer of lands in Ward No.1, Block No.95, T.S. No.63 which are under the
occupation of the petitioner to an extent of 7 acres, for the purpose of
establishing Tamil Nadu Sports Development Authority.
2. It is the case of the petitioner that that it is involved in a wide
range of activities, including education, healthcare and social welfare and
charitable endeavours. The petitioner is an organisation associated with the
Church of South India and was incorporated on 31.08.1948 and is actively
involved in initiatives that address poverty, empower marginalised
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W.P.No.32993 of 2023
communities and contribute to the overall well-being of society.
3. It is the further case of the petitioner that it manages and
supports numerous schools, colleges and other educational initiatives across
South India and that these institutions are providing quality education and
one such institution is functioning is the Findlay Higher Secondary School,
V.O.c. Road, Mannargudi, Thiruvarur District (for short ‘the school’) which
was founded in the year 1862 and that for over 160 years, the school has been
striving to nurture students and is imparting quality education to more than
1100 students.
4. It is the further case of the petitioner that earlier the Wesleyan
Methodist Missionary Trust Association, London, was holding in trust,
various properties, including properties situated in South India for the benefit
of Wesleyan Methodist Missionary Society and after enactment of the
Methodist Church Union Act, 1929, the Wesleyan Methodist Church was
united along with two other churches into the “Methodist Church” and by
virtue of the provisions of the said Act, the Wesleyan Methodist Missionary
Trust Association was then holding the said properties in trust for the
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W.P.No.32993 of 2023
Methodist Church. Subsequently, the petitioner, in the year 1947, was
incorporated to act as trustee for the Church of South India and since the
Wesleyan Methodist Missionary Trust Association was holding properties in
trust for the benefit of the Methodist Church, after the formation of the
Church of South India, the Wesleyan Methodist Missionary Trust Association
decided to transfer few of those properties to the petitioner herein, as the
petitioner was one of the trustees of the Church of South India. Pursuant to
the same, on 11.5.1961, the Wesleyan Methodist Missionary Trust
Association executed a transfer deed in favour of the petitioner, which is
registered as Document No.2146/1961 at SRO, Madras-Chengalpet District.
5. It is the further case of the petitioner that the lands comprised in
S. Nos.4551/2, 4553/1 & 2, 4556, 4542 to 4548, 4554 and 4555 to an extent
of 11 acres and 78 cents situate at Mannargudi Town were also transferred to
the petitioner by the Wesleyan Methodist Missionary Trust Association. It is
the further case of the petitioner that portions of the said lands have been
utilised by the Findlay Higher Secondary School as playground for its
students, more particularly Old S. No.4542, now New S. No.63 to an extent
of 4 acres 38 cents, which lands have been in possession and occupation of
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Findlay Higher Secondary School since 1862 and that the school has been
utilising the said land as playground for its students.
6. It is the further case of the petitioner that the revenue records
pertaining to Old S. No.4542, now New S. No.63 including the A-Register,
Village Adangal, TSLR, etc., stand in the name of the petitioner and the land
has also been classified as school playground in the revenue records. Further,
the Rural Development and Local Administration Department has listed out
the parks, play-fields and open spaces in Mannargudi Municipal Council, as
per the Tamil Nadu Parks, Play-fields and Open Spaces (Preservation and
Regulation) Act, 1959 and the lands comprised in Ward I, Block 65,
S.Nos.4542, 4544, 4555 and 4557 have been used by the Findlay Higher
Secondary School as their playground and that the said gazette notification
also mentions that the ownership of the said land belongs to the Christian
Mission (Government poramboke).
7. It is the further case of the petitioner that the said playground is
used for various purposes including conducting of Annual Sports Meet and
the entire school population participates in various events and that the school
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has been in complete control and usage of the said land for over 100 years.
8. It is the further case of the petitioner that to its shock and
dismay, the petitioner came to know that the local revenue authorities along
with few authorities of the Mannargudi Municipality have been attempting to
enter the property belonging to the petitioner, more particularly the school’s
playground and trying to survey the lands and on enquiry, it came to the
notice of the petitioner that the land has been classified as Government
Porakboke and so, the authorities are contemplating taking over the said land
for some other purpose. Shocked and irked by the said answer, the petitioner
approached the authorities to bring to their knowledge that the lands
comprised in Old S. No.4542 now New S.No.63, belong to the petitioner that
the Findlay school is in possession and occupation of the lands for over 100
years. The petitioner also sent a representation to the Revenue Department
and the District Collector, Thiruvarur on 16.2.2022 explaining in detail that
the petitioner holds the title to the lands situate in Old S. No.4542 now New
S. No.63 and also requested the authorities to refrain from interfering with the
peaceful possession and enjoyment of the lands belonging to the petitioner.
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9. It is the further case of the petitioner that since the representation
of the petitioner was not considered, the petitioner filed W.P. No.7379/2023
and this Court, vide order dated 15.3.2023, disposed of the said writ petition
granting liberty to the petitioner to make an application in Form II as
specified u/s 3 (4) of the Patta Pass Book Act, 1987, r/w 3 (2) of the Rules
and directed the 2
nd
respondent to consider the same within a prescribed time
frame. The petitioner also filed the application as directed by this Court and
the petitioner was called for enquiry on several dates by the 2
nd
respondent
and the petitioner also appeared before the Tahsildar along with all the
requisite documents. On 31.8.2023, the 2
nd
respondent called upon the
petitioner to appear for enquiry along with the original documents for which
the petitioner sought some time to produce the original documents, as the said
documents pertained to pre-settlement period, viz., 1923-1924. However,
even before the petitioner could produce the same, the 2
nd
respondent, vide
order dated 14.9.2023 rejected the application on the ground that the
petitioner has not proved the ownership of the lands through documents.
10. Aggrieved by the said order, the petitioner moved an appeal
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before the 1
st
respondent, which appeal is still pending and in the meantime,
on 15.9.2023, the impugned order had come to be issued, wherein the land
comprised in Ward I, Block 95, S. No.63 to the extent of 4.38.11 hectares 7
acres Sircar Poramboke, by mentioning that the said land is required for
construction of a stadium, which is to be transferred to the 4
th
respondent. It
was further stated in the said notice that in case of any objections, it was open
to the public to raise objection within 15 days either before the 3
rd
respondent
or the 2
nd
respondent either in writing or in person. Though the impugned
notice is dated 15.9.2023, it was brought to the knowledge of the petitioner
only on 18.10.2023 and no notice was issued to the school or the petitioner,
who admittedly was in possession and occupation of the said lands.
11. It is the further averment of the petitioner that the impugned
notice of the 3
rd
respondent is illegal, arbitrary and an abuse of process of
law, which is absolutely without any authority. It is the further case of the
petitioner that the revenue records stand in the name of the petitioner and the
school and that the records clearly reveal that the land is being utilised by the
school as a playground and it has been shown as such in the official gazette
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notification. However, without ascertaining the same, the impugned notice
has come to be issued by the 3
rd
respondent without any notice to the
petitioner.
12. Without admitting, it is the further averment of the petitioner
that even if the disputed land does not belong to the school, however, the
notification in the official gazette dated 28.3.1964 clearly states that the land
is under usage of the school and the land not having vested with the
Government or the local authority at any point of time,the land being in
possession and occupation of the school prior to issuing the impugned notice
for the transfer of the land, the procedure contemplated under the Tamil Nadu
Parks, Play-fields and Open Spaces (Preservation and Regulation) Act, 1959
ought to have been followed. However, in the present case, the procedure
contemplated under the Act has not been followed. Though it is the admitted
case that the lands are in possession and occupation of the petitioner,
however, the objections have been sought for after the proposal to transfer the
said land to the 4
th
respondent has been formulated.
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13. Aggrieved by the impugned notice, which was brought to the
knowledge of the petitioner on 18.10.2023, the petitioner, on 19.10.2023,
submitted its objections against the said transfer of lands to the 4
th
respondent
for construction of the stadium. The said objection was made since the
petitioner holds title to the said land and has been in peaceful possession and
occupation of the said lands for over 100 years. Further, objection also
pointed out that the appeal before the 1
st
respondent is pending, however,
without waiting for the outcome of the appeal the 3
rd
respondent had issued
the impugned notice in a haste. It is the further averment of the petitioner
that till date, the petitioner’s objections have not been considered and no
orders have been passed by the 2
nd
and 3
rd
respondents. The respondents,
without affording an opportunity to the petitioner and without considering the
objections of the petitioner with regard to the fact that the land belongs to the
petitioner has arbitrarily proceeded with the transfer of the land to the 4
th
respondent. It is the further averment of the petitioner that the 2
nd
respondent
rejected the petitioner’s application for issuance of patta on 14.09.2023 on the
very next day, i.e., on 15.9.2023, the day on which the 3
rd
respondent issued
the impugned notice.
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14. It is the further averment of the petitioner that even without
admitting that the lands comprised does not belong to the petitioner and it is a
Government Poramboke, it is admitted position, which is evidenced through
the revenue records that the school is in possession and occupation of the
lands and is being used as a playground for more than 100 years. Such being
the case, the respondents ought to have taken steps under the Tamil Nadu
Land Encroachment Act to evict the school after following the due process of
law prior to issuance of impugned notice. However, without doing so, the 3
rd
respondent has issued the impugned notice. It is the further averment of the
petitioner that the power to dispose of the disputed lands is only with the
Government and the procedure contemplated under RSO 24 has to be
followed. However, none of the procedures have been followed before the
issuance of the impugned notice and, therefore, the impugned notice is issued
without any authority of law and, therefore, the said notice is unsustainable.
15. It is the further averment of the petitioner that No Objection
sought for from the Mannargudi Municipality has also been granted to the 3
rd
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respondent and steps are being taken for transfer of the land to the 4
th
respondent for construction of the stadium and all the aforesaid acts have
been done without considering the petitioner’s objection and passing any
orders on the appeal filed by the petitioner. It is the further averment of the
petitioner that if the lands, which are utilised by the school are allowed to be
transferred to the 4
th
respondent, the school would be left with no playground
for its students and the provision of playground being a mandatory
requirement under the provisions of the Right to Free and Compulsory
Education Act, 2009, and no school can be established or recognized unless it
fulfils the norms of having a playground. In case the land under the
possession and occupation of the school is transferred to the 4
th
respondent,
the recognition granted to the school by the authority would stand withdrawn
thereby jeopardizing the education of the students studying in the school.
The said action would have cascading repercussions academically and
financially not only on the school, but also on the students and, thereby,
tarnishing the reputation of the school, which has been built over a period of
more than 100 years. Therefore, left with no alternative, the present writ
petition has been filed by the petitioner.
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16. Learned senior counsel appearing for the petitioner submitted
that the present act of issuance of impugned notice pending the appeal before
the 2
nd
respondent by the 3
rd
respondent is illegal, arbitrary and abuse of
process of law, which has been issued without any authority of law.
17. It is the further submission of the learned senior counsel that
without putting the petitioner on notice, who has been using the land for more
than 100 years and has been continually in possession and occupation of the
said lands, calling for objections from the public clearly reveals the
clandestine approach of the 3
rd
respondent to take over the lands of the
petitioner without following the due process of law.
18. It is the further submission of the learned senior counsel that if
the lands, which is used as a playground, is taken over by the 3
rd
respondent
for construction of stadium by the 4
th
respondent, it would not only cause
much hardship to the school, which has been in existence for more than 150
years and using the said lands as its playground, but would cause much
prejudice and hardship to the education of the students not only studying in
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the said school, but all the other schools in the locality, which are using the
said lands as playground for various activities, thereby, it would result in
withdrawal of recognition granted to the school, which would directly affect
the rights and the future of the students studying in the said school and it
would be a direct affront on the rights of the students as enshrined under
Article 21A of the Constitution.
19. It is the further submission of the learned senior counsel that
the impugned notice is not only violative of Article 21A of the Constitution,
but is also violative of Articles 14 and 19 of the Constitution as prior to
issuance of the impugned notice, the petitioner has not been put on notice,
being the absolute and rightful owner of the land and the objections of the
petitioner have not been considered before issuing the impugned notice.
20. It is the further submission of the learned senior counsel that
the impugned notice is without any reference to the Transfer Deed dated
11.5.1961 executed by the Wesleyan Methodist Missionary Trust Association
in favour of the petitioner, which stands registered as Document
No.2146/1961 at SRO, Madras-Chengalpet District. The lands, which
belonged to Wesleyan Methodist Missionary Trust Association, pre-
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settlement period, having been transferred to the petitioner and further the
fact that the possession and occupation of the lands at the hands of the
petitioner having been considered by the appropriate authority under the
Tamil Nadu Parks, Play-fields and Open Spaces (Preservation & Regulation)
Act and that the revenue records, including the A-Register, Village Adangal,
TSLT, etc., all stands in the name of the shool and the lands have been
classified as school playground in the revenue records, contrary to the
aforesaid prescription in the official Gazette dated 28.3.1964, published by
the Rural Development and Local Administration Department, and the
records of the Mannargudi Municipal Council specifically mentions the said
lands as being used by the school as their playground, the impugned notice
without affording an opportunity to the petitioner to put forth its objections
and also the non-consideration of the relevant materials with regard to the
ownership of the lands, renders the impugned notice arbitrary, illegal and
perverse.
21. It is the further submission of the learned senior counsel that it
is not the case of the 3
rd
respondent that the land stood vested with the local
authority or the Government at any point of time and such being the case, the
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Rural Development and Local Administration Department had already
published in the Official Gazette on 28.3.1964 that the lands are being used
by the school as their playground, the transfer of the lands to the 4
th
respondent without following the procedure contemplated under the Tamil
Nadu Parks, Play-fields and Open Spaces (Preservation and Regulation) Act,
is wholly erroneous and perverse.
22. It is the further submission of the learned senior counsel that
even if the petitioner is treated to be an encroacher of the lands, which
according to the respondents is classified as a Government poramboke, the
course open to the respondents is only to resort to the provisions of the Tamil
Nadu Land Encroachment Act and evict the petitioner and the school from
the lands by following the due process of law before issuing the impugned
notice. However, without following any of the procedure prescribed, either
as an encroacher, or as an occupant under the Open Spaces Act, the 3
rd
respondent is proceeding to divest the petitioner of its right over the lands,
which have vested with the petitioner by way of the Transfer Deed executed
as early as on 11.5.1961.
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23. It is the further submission of the learned senior counsel that
the procedure contemplated under RSO 24 has also not been followed prior to
issuance of the impugned notice and the lands, as on date, worth several
crores of rupees, the power to dispose of the said lands only vests with the
Government as per RSO 24 and the 3
rd
respondent, by issuing the impugned
notice, cannot divest the petitioner of the lands.
24. It is the further submission of the learned senior counsel that
the title documents, revenue records and the official gazette notification dated
28.3.1964 all categorically spell out that the petitioner is the owner of the
land comprised in Old S. No.4542, now New S. No.63 and the said land is
being utilised by the school as its playground for over 100 years and,
therefore, the present impugned notice, without hearing the petitioner and
also without considering the objections raised by the petitioner and without
looking into the relevant records, if allowed to stand, would be nothing but
depriving the petitioner of its property without the authority of law and would
be violative of Article 300A of the Constitution. It is further pointed out by
the learned senior counsel for the petitioner that pending the appeal of the
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petitioner, the act of the 3
rd
respondent in issuing the impugned notice is
nothing but ousting the appeal remedy of the petitioner, as the said impugned
notice and, if it is allowed to stand, the consequent take over of the land,
pending the appeal, would virtually make the appeal infructuous.
25. It is the further submission of the learned senior counsel that
the conclusion arrived at by the 2
nd
and 3
rd
respondent with regard to the land
being a Government pormaboke, is unilateral and premature, as the said
finding has been arrived at without affording an opportunity to the petitioner
to establish that it is the rightful owner of the lands and that the school
continues to be in possession and occupation of the said lands till date.
26. It is therefore submitted by the learned senior counsel that the
impugned notice, which has been issued, without affording an opportunity to
the petitioner and the consequent measures taken to dispossess the petitioner
of the lands and also to transfer the lands to the 4
th
respondent is not only
illegal and perverse, but causes great hardship, sufferance and irreparable loss
to the petitioner as also the students studying in the school and, therefore, left
with no opportunity, as the appeal is pending consideration though action is
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being taken, the present writ petition has been filed and considering all the
above, this Court may quash the impugned notice and direct the 3
rd
respondent not to interfere with the peaceful possession and occupation of the
petitioner.
27. Per contra, learned senior counsel appearing for respondents 1
to 3, placing reliance on the counter affidavit filed by the 1
st
respondent,
submits that the lands in Survey No.4542, admeasuring 10 acres and 35967
sq.ft., since 1925, has been entered as ‘school playground’ in the revenue
records, which would also be evident from the Resettlement ‘A’ Register of
the village dated 15.9.1925. It is the further submission of the learned senior
counsel that the same also finds reflection in the Town Settlement Field
Register dated 24.12.1942. Therefore, ever since, the land belongs to the
Government and it has been used as a playground by the students of the
petitioner school and also other schools and also the public in Mannargudi
and surrounding villages. It is the further submission of the learned senior
counsel that the said playground was used for various sports activities and
that the vacant space was bereft of any compound wall or any other structure
and has since been used as a playground.
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28. It is the further submission of the learned senior counsel that in
the publication in the official gazette made by the Rural Development and
Local Administration Department with reference to Tamil Nadu Parks, Play-
field and Open Spaces (Prevention & Regulation) Act, 1959, the above
mentioned land in survey No.4542, which belongs to the Government has
been erroneously clubbed with the adjacent lands in S. Nos.4554, 4555 and
4557, which belongs to the petitioner and, therefore, both “Christian
Mission” and “Government Poramboke” found its place in the ownership
entry.
29. It is the further submission of the learned senior counsel that as
early as in the year 1925, the Resettlement register reveals the ownership of
the lands as “Government Portmboke” with the remarks that it is used as a
playground. The re-settlement ‘A’ register dated 15.9.1925 as also the Town
Settlement Field Register dated 24.12.1942 clearly reveal s. No.4542 as
Government Poramboke and is used as school playground.
30. It is the further submission of the learned senior counsel that
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the error occurred in the revenue records in the year 2007 when the Assistant
Director, Survey and Land Records had made a wrong entry in the Town
Settlement Field Register dated 2.8.2007 by marking the survey number as
“Findlay Higher Secondary School”. It is the further submission of the
learned senior counsel that the entries in the records with reference to the
survey number and the classification would reflect the land classification as
Government Poramboke and it does not carry the details of the petitioner or
the patta issued thereof in the records and the records still show that the land
is utilised as ‘playground’. It is the further submission of the learned senior
counsel that the error came to light only after orders came to be passed by
this Court in W.P. No.7379/2023, in and by which direction was given to
consider the petitioner’s representation dated 16.2.2022 on merits.
31. It is the further submission of the learned senior counsel that in
compliance of the aforesaid directions, the 2
nd
respondent conducted an
enquiry on 9.6.2023 and 31.8.2023 and passed a detailed final order dated
14.9.2023 rejecting the request of the petitioner by recording the following
findings :-
i)The Resettlement Register dated 15.9.1925 has
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classified the land as a Government poramboke;
ii)The 1942 Town Survey Field Register has
classified the land as Government Poramboke;
iii) The Town Survey Register has classified the
land into Government Poramboke. Though the
entry 17 reflects Findlay School Playground,
details of the petitioner nor the patta number is
reflected and the record shows that the land is
utilised as a playground in entry 18;
iv) There are no revenue records/registered
documents to show the title or possession and no
tax receipts have been furnished by the petitioner
during enquiry;
v) There is no document or evidence to show
that the school was using the property as a
playground;
vi) There is no temporary/permanent
constructions to show that the playground was used
by the school;
vii) The mere possession of a transfer deed with
regard to the said land would not be suffice to
grant patta in favour of the petitioner.
32. It is the further submission of the learned senior counsel that
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based on the order of the Tahsildar dated 14.9.2023, the entry in the Town
Settlement Field Register dated 2.8.2007 was modified and the appeal of the
petitioner against the same before the 1
st
respondent was dismissed by order
dated 20.11.2023.
33. On the merits of the writ petition, it is the submission of the
learned senior counsel that no right accrues to the petitioner to challenge the
show cause notice and such an action is premature, as by the said notice, only
objections to the proposal for construction of a stadium has been called for
and, therefore, the present writ petition is not maintainable. It is the further
submission of the learned senior counsel that the claim of title cannot be
adjudicated in a writ petition and the application for issuance of patta having
already been dismissed, the only avenue for the petitioner is to approach the
civil court seeking declaratory relief by establishing its title over the land and
it cannot be adjudicated by means of a writ petition.
34. It is the further submission of the learned senior counsel that
the State of Tamil Nadu is not a party respondent and all the lands, being
property of the State, the Government is a necessary party and in the absence
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of the Government of Tamil Nadu, the writ petition is liable to be dismissed
for non-joinder of parties.
35. It is the further submission of the learned senior counsel that
though the writ petition has been filed on behalf of the Association, which is
registered under the Companies Act, however, there is neither any pleading
nor any Board resolution authorising the filing of the writ petition, which
renders the writ petition not maintainable. It is the further submission of the
learned senior counsel that if the petitioner is aggrieved with respect to the
title of the property, the petitioner ought to have filed a suit for declaration
and as against the rejection of the petitioner’s appeal for grant of patta, the
petitioner has to take recourse to proviso to Section 14 of the Tamil Nadu
Patta Pass Book Act and a writ petition cannot be maintained.
36. It is the further submission of the learned senior counsel that
the claim of title on the basis of the transfer deed dated 11.5.1961 also cannot
be acceded to as the said deed is unstamped and without the deed of the
transfer of the property being stamped in accordance with the provisions of
the Indian Stamp Act, any unstamped deed conveying the property is
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inadmissible in legal proceedings till the time deficit stamps are paid and that
such document has to be impounded by the Court and sent for adjudication
u/s 33 of the Indian Stamp Act.
37. It is the further submission of the learned senior counsel that
the claim of the petitioner that the school would be derecognized as it would
not be having sufficient space for playground is wholly erroneous as it has
available space as would be evident from the extent of land in which the
school is located, which is to an extent of 3 Acres and 20 cents. If at all the
petitioner wants separate space for playground, the school has to either
purchase lands or acquire lands for the purpose of recognition and it cannot
use the lands belonging to the Government for recognition purpose. Merely
because the petitioner has shown the part of the land in its application for
recognition purpose on the basis of which recognition has been granted
cannot be the basis for the petitioner to claim title over the said lands.
38. It is the further submission of the learned senior counsel that
the petitioner, though claims transfer from Wesleyan Methodist Missionary,
however, there are no materials placed to prove that the said Missionary had
title to the said property and till date no materials have been placed before the
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authorities to prove title to the said lands. In fact, it is the specific case of the
petitioner that it had sought time to produce the documents relating to title to
the said lands before the authorities, but till date, even before this Court,
except for the transfer deed, no materials have been placed to prove the title
and, therefore, it is for the petitioner to establish its title to the property and it
cannot lay its claim on the basis of the transfer deed.
39. It is the further submission of the learned senior counsel that all
along, the property is shown in the Resettlement Register as “School
Playground” and no where the title to the property, viz., S. No.4542, is shown
to have been with Wesleyan Methodist Missionary Trust Association. It is
the further submission of the learned senior counsel that S. No.4542 was
shown as Government Poramboke with remarks as School Playground and,
therefore, Wesleyan Methodist Missionary Trust Association could not have
transferred the property in S. No.4542, which stood in the name of the
Government by way of transfer deed dated 11.05.1961.
40. It is the further submission of the learned senior counsel that
the vast area of 10 acres 35967 sq.ft. of land would not be required to be
earmarked as playground for the school in the year 1961 itself , more so,
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when the playground in T.S. No.63 (Old No.4542) is not within the school
premises, but situate nearly one kilometre away from the school.
41. It is the further submission of the learned senior counsel that
patta transfer is permissible under RSO 31 (2) and the present claim of the
petitioner does not fall within the scope of patta transfer rules and regulations
and the petitioner having failed to prove his case before the respondents with
regard to title through any documentary evidence, the claim for patta was
rightly rejected in the light of the Resettlement Register, which reveals that
the land is classified as Government Poramboke.
42. It is the further submission of the learned senior counsel that
the said land is sought to be put to construction of a sports stadium, which is
in the interest of the common public. Such being the case, it is for the
petitioner to provide sufficient space for its students for the purpose of
playing activities and the lands belonging to the Government cannot be
usurped by the petitioner on the basis of a transfer deed, when the petitioner
has not proved its title to the property.
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43. It is the further submission of the learned senior counsel that
there is no question of eviction of the petitioner by considering the petitioner
as an encroacher under the Land Encroachment Act, as the said land is lying
waste and it is free from encroachment. In fact, it is even the case of the
petitioner that it is merely used as a playground by the petitioner as also other
schools in and around the vicinity of the petitioner. Such being the case,
there could be no case of encroachment as pleaded by the petitioner.
44. It is the further submission of the learned senior counsel that
even according to the petitioner, the common public and the children of other
schools nearby are utilising the land as playground and the land being
classified as a Government poramboke and only part of the land has been
proposed for construction of sports stadium. Further, the notice of the 3
rd
respondent calling for objections from the public is only a preliminary notice
and that proposals will be submitted to the District Collector for transfer of
land and the present petition is premature as no action has been taken on the
land till date.
45. In fine, it is the submission of the learned senior counsel that
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the petitioner not having established its title to the property through necessary
documentary evidence and the petitioner not filed any document to show the
authorisation for filing the writ petition in a representative capacity and the
revenue records reveal that the lands have all along been classified as
Government Poramboke lands and that only notice has been issued calling for
objections, the writ petition itself is not only premature but also not
maintainable. Accordingly, he prays for dismissal of the present writ
petition.
46. Learned counsel appearing for the 4
th
respondent, in sum and
substance, adopted the submissions advanced on behalf of respondents 1 to 3
and further prayed that this court may dismiss the present petition.
47. This Court gave its anxious consideration to the submissions
advanced by the learned counsel appearing on either side and perused the
materials available on record.
48. The crucial questions that arises for determination in the
present writ petition are :-
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i) Whether the writ petition filed by the petitioner
is maintainable.
ii) Whether the petitioner has established its title
to the property in S.No.4542, New S. No.63 which is
proposed to be handed over to the 4
th
respondent for
construction of a stadium.
iii) Whether the lands in which the stadium is
proposed to be put up has been in possession and
occupation of the petitioner as also the other public in
and around the vicinity of the said place.
iv) What relief could be granted by this Court, while
entertaining this petition under Article 226 of the
Constitution.
49. While the title to the property is disputed by the respondents, at
the outset, the issue of maintainability is raised on behalf of the respondents
towards which submission have been made supra
50. In St. Mary’s Education Society & Anr. – Vs – Rajendra
Prasad Bhargava & Ors. (2023 (4) SCC 498), the Supreme Court had culled
out the instances where a writ against a private institution is maintainable,
though it be not a “State” and the Supreme Court has also explained that the
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converse is also applicable and in this context, the Supreme Court held as
under:-
“34. In Km. Anita Verma v. D.A.V.
College Management Committee, Unchahar, Rai
Bareilly, (1992) 1 UPLBEC 30:
“....30 where the services of a teacher were terminated, the
Court held that the writ petition Under Article 226 is not
maintainable as the institution cannot be treated as the
instrumentality of the State. The matter was considered in
detail in M/s. Habans Kaur v. Committee of Management,
Guru Teghbahadur Public School, Meerut and Anr.,
MANU/UP/0653/1992 : 1992 Labour and Industrial Cases
2070 (All), wherein the services of the Petitioner were
terminated by the Managing Committee of the institution
recognised by the C.B.S.E. It was held that the Affiliation
Bye-laws framed by the C.B.S.E. has no statutory force. The
Court Under Article 226 of the Constitution of India can
enforce compliance of statutory provision against a
Committee of Management as held in a Full Bench decision
of this Court in Aley Ahmad Abdi v. District Inspector of
Schools, Allahabad and Ors. MANU/UP/0141/1977 : AIR
1977 All. 539. The Affiliation Bye-laws of C.B.S.E. having
no statutory force, the only remedy against the aggrieved
person is to approach C.B.S.E. putting his grievances in
relation to the violation of the Affiliation Bye-laws by the
institution.
33. Thus, where a teacher or non-teaching staff challenges
action of Committee of Management that it has violated the
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terms of contract or the Rules of the Affiliation Byelaws, the
appropriate remedy of such teacher or employee is to
approach the CBSE or to take such other legal remedy
available under law. It is open to the CBSE to take
appropriate action against the Committee of Management of
the institution for withdrawal of recognition in case it finds
that the Committee of Management has not performed its
duties in accordance with the Affiliation Byelaws.”
* * * * * * *
37. This Court in the case of K.K. Saksena v. International
Commission on Irrigation and Drainage and Ors.
MANU/SC/1213/2014 : (2015) 4 SCC 670, after an
exhaustive review of its earlier decisions on the subject,
held as follows:
“43. What follows from a minute and careful
reading of the aforesaid judgments of this Court is
that if a person or authority is a 'State' within the
meaning of Article 12 of the Constitution,
admittedly a writ petition Under Article 226 would
lie against such a person or body. However, we
may add that even in such cases writ would not lie
to enforce private law rights. There are catena of
judgments on this aspect and it is not necessary to
refer to those judgments as that is the basic
principle of judicial review of an action under the
administrative law. Reason is obvious. Private law
is that part of a legal system which is a part of
Common Law that involves relationships between
individuals, such as law of contract or torts.
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Therefore, even if writ petition would be
maintainable against an authority, which is 'State'
Under Article 12 of the Constitution, before issuing
any writ, particularly writ of mandamus, the Court
has to satisfy that action of such an authority,
which is challenged, is in the domain of public law
as distinguished from private law.
xxxx
52. It is trite that contract of personal service
cannot be enforced. There are three exceptions to
this rule, namely:
(i) when the employee is a public servant working
under the Union of India or State;
(ii) when such an employee is employed by an
authority/body which is a State within the meaning
of Article 12 of the Constitution of India; and
(ii) when such an employee is 'workmen' within the
meaning of Section 2(s) of the Industrial Disputes
Act, 1947 and raises a dispute regarding his
termination by invoking the machinery under the
said Act.
In the first two cases, the employment ceases to
have private law character and 'status' to such an
employment is attached. In the third category of
cases, it is the Industrial Disputes Act which
confers jurisdiction on the labour court/industrial
tribunal to grant reinstatement in case termination
is found to be illegal.”
* * * * * * *
42. In the penultimate para, this Court ruled as under:
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“32. Applying these principles, it can very well be said that
a writ of mandamus can be issued against a private body
which is not a State within the meaning of Article 12 of the
Constitution and such body is amenable to the jurisdiction
Under Article 226 of the Constitution and the High Court
Under Article 226 of the Constitution can exercise judicial
review of the action challenged by a party. But there must
be a public law element and it cannot be exercised to
enforce purely private contracts entered into between the
parties.”
(Emphasis supplied)
43. In the background of the above legal position, it can be
safely concluded that power of judicial review Under
Article 226 of the Constitution of India can be exercised by
the High Court even if the body against which an action is
sought is not State or an Authority or an Instrumentality of
the State but there must be a public element in the action
complained of.”
51. In the present case, the writ is filed by a private entity against
the Government, but the maintainability is put in issue by pointing out that
the challenge is made to the notice inviting objections, which cannot be put
in issue by this Court and the title of the petitioner is sought to be established
before the writ court, which is impermissible, as the same could be
adjudicated only by the civil court and on certain other aspects.
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52. However, this Court is not venturing into all those contentions,
but only would like to point out that from the aforesaid decision, it is
implicitly clear that where there is a public element involved, a writ is
maintainable. In the case on hand, the lands are being used by the petitioner
as also other schools in and around the locality as playground and that it has
been used as such for more than 100 years. In fact, even the revenue records
reveal the classification of the lands as school playground, though it spells
out that it is a Government Poramboke. Therefore, all along, the said lands
have been used as a school playground, notwithstanding the fact that the
lands are classified as Government Poramboke and, thus, it has been used for
the benefit of the public. Therefore, there could be no quarrel that a public
element is involved, as the interests of the public, which takes into its fold the
school going children, who require a place for their sports activities and in
such a backdrop, this Court could very well adjudicate on the writ petition
under Article 226 of the Constitution.
53. Now turning back to the next question as to whether the
petitioner has proved its title to the property, while placing reliance on the
revenue records, which includes the pre-settlement period, the case of the
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petitioner is that the lands were initially held by Wesleyan Methodist
Missionary Trust Association and later, on the formation of the petitioner, the
lands were transferred to the petitioner by means of a transfer deed.
54. Though the transfer deed has been placed before the court,
however, there is no material evidencing the title of the petitioner to the
property. In fact, there is no iota of evidence to show that the Wesleyan
Methodist Missionary Trust Association had any title to the property.
Except for the averment of the petitioner that the property, viz., the lands in
S. No.4542 vests with the Wesleyan Methodist Missionary Trust Association,
which was later passed on by means of transfer to the petitioner, there is no
scrap of material placed either before the 3
rd
respondent or before this Court
to conclude that the title was held by the Wesleyan Methodist Missionary
Trust Association, which stood passed on to the petitioner upon execution of
the Transfer Deed.
55. In fact, it is the case of the petitioner, even before this Court
that before the 3
rd
respondent the petitioner had pleaded for time to establish
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through records and documents that the title to the lands are with the
petitioner, which was passed on from Wesleyan Methodist Missionary Trust
Association, however, no materials were placed before the 3
rd
respondent.
Though the petitioner claims that requisite time was not granted to the
petitioner to place the documents, however, it should not be lost sight of that
the documents with regard to title to the property, which the petitioner
wanted to placed before the 3
rd
respondent, but, which were denied on
account of non-grant of time, has not been placed even before this Court even
after passing of the order of rejection on 14.9.2023. Inspite of the fact that
more than a year had passed since the date of rejection of the claim of the
petitioner, till date, the petitioner has not placed the said document even
before this Court at the time of hearing the present petition. In the absence of
any material evidencing the title to the lands, this Court cannot adjudicate
upon the title and render any definitive opinion that the title vests with the
petitioner. If at all the petitioner has any grievance with regard to the title,
the same has to be espoused before the civil court, where alone it could be
established and without any documentary proof, claiming title over the lands
is impermissible and it cannot be decided in the present writ petition.
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Therefore, this Court is not inclined to decide the title to the property with
one entity or the other when there are no materials to prove the same.
Therefore, the second issue is answered in the above terms.
56. Insofar as the third issue with regard to whether the lands in
which the stadium is proposed to be put up has been in possession and
occupation of the petitioner as also the other public in and around the vicinity
of the said place, it is evident from the materials available on record, as also
the counter of the 1
st
respondent that as per Re-settlement ‘A’ Register dated
15.9.1925, the lands in R.S. No.4542 to an extent of 10 acres and 35967 sq.ft.
are classified as Government Poramboke and that it carries the remarks that it
is used as a “school playground”. Further, even as per Town Settlement Field
Register dated 24.12.1942, the lands in R.S. No.4542 is classified as
Government Poramboke and carrying similar remarks as “School
Playground”.
57. In fact, it is fairly admitted by the 1
st
respondent that in 2007,
an error crept into the Town Settlement Field Register dated 2.8.2007, the
land in R.S. No.4542 were shown as belonging Findlay Higher Secondary
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School”. However, even then, the classification of the lands were still
reflecting as “Government Poramboke”.
58. It is also not to be lost sight of that in the notification published
in the Official Gazette by the Rural Development and Local Administration
Department vide G.O. Ms. No.763, L.A., dated 28.3.1964, the said
notification specifically mentions that the land have been used by the Findlay
Higher Secondary School as their playground. There is no quarrel with the
fact that the said lands are shown to be utilised as a school playground and
even the respondents are not objecting to the same. However, the mere
publication in the official gazette that the lands have been used by the Findlay
Higher Secondary School as their playground in the gazette issued by the
Rural Development and Land Administration Department would not confer
title to the said lands with the petitioner. The lands in S. Nos.4554, 4555 and
4557, which falls within the same block as the lands in S. No.4542, have been
erroneously clubbed together and shown as “Christian Mission” and
“Government Poramboke”. However there is no material evidencing title
with the petitioner and the error committed by the Department while making
remarks in the appropriate column and including S. No.4542 along with the
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other adjacent lands as belonging to the petitioner cannot be taken to confer
title to S. No.4542 with the petitioner. When even in the official gazette, the
lands have been clearly shown as Government Poramboke, if really the
petitioner was aggrieved at the said entry, which would derail the title of the
petitioner, the petitioner ought to have taken steps to establish its title to the
lands in S. No.4542 through proper materials before the civil court.
However, the petitioner has kept silent inspite of the fact that the
Resettlement ‘A’ Register, the Town Settlement Field Register of the year
1925 and 1942 as also the Official Gazette Notification dated 28.3.1964 by
the Rural Development and Local Administration Department, have all
shown the lands as “Government Poramboke”, and the inaction on the part of
the petitioner to have the land register to reflect the correct classification of
the lands in S. No.4542, by having the classification of “Government
Poramboke” deleted stares against the petitioner and if really the petitioner
was the owner of the lands with proper title, the petitioner ought to have
taken the requisite steps before the appropriate judicial forum. The act of the
petitioner in keeping silent without taking any proper steps would only lead
to the inference that the petitioner was not in a position to establish its title so
as to claim ownership over the property. However, this Court is not deciding
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the issue of ownership, but only highlighting the fact that the classification of
the land is shown as Government Poramboke and, therefore, it is for the
petitioner to establish its title over the property to claim ownership.
59. However, it is even the admitted case of the respondents that
barring the classification, which shows the land in S. No.4542 as Government
Poramboke, the land has been a waste land and that it has been used by the
general public and the schools in the locality as a playground, including the
school belonging to the petitioner. In fact, the petitioner also has been using
the playground for the playing activities of its students and the usage of the
said lands has been solicited from the petitioner from other schools and
institutions, inspite of the fact that the petitioner has not established its title
over the property. The petitioner school has been in existence for more than
a hundred years and all along, the petitioner and as also the other schools in
the locality have been using the said lands as playground and the said factum
has also not been disputed by the respondents and it also finds strength from
the remarks in the settlement register, which shows the lands as ‘School
Playground’. Therefore, in such a backdrop, the continuous usage of the land
in S. No.4542 as a school playground stands established, but the claim of
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possession and occupation at the hands of the petitioner cannot be
adjudicated by this Court under its extraordinary jurisdiction unless the
petitioner establishes its title to the property. Therefore, this Court is not
venturing into the possession and occupation of lands at the hands of the
petitioner, but this Court holds that the lands in S. No.4542, which is the
subject matter of the present lis, has been used as a playground for over a
century and, therefore, the usage of the lands for the benefit of the public,
more particularly the school students, being used as a playground stands
established through the records, even by the respondents.
60. Therefore, this Court holds that the possession and occupation
of the lands cannot be held to be with the petitioner, but the usage of the
lands in S. No.4542 as a school playground stands established through the
documents placed before this Court and has continued to be used as such for
over a century. The third issue is answered in the aforesaid terms.
61. Now the only issue that requires determination is the relief that
could be granted by this Court by exercising its inherent jurisdiction under
Article 226 of the Constitution.
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62. The main grievance espoused in this regard by the petitioner is
that the lands are very much required for the petitioner to retain its
recognition to run a school and the same would stand enlarged to the other
schools in the locality as well. Further, it is the admitted stand of the
respondents 1 to 3, as is evidenced through the counter that the land has been
classified as Government Poramboke for the usage as playground and part of
the land has been proposed for construction of sports stadium, which is for
public purpose. Therefore, there is not only an unequivocal admission that
the lands have been used as a playground inspite of its classification as
Government Poramboke, but only a part of the land is proposed to be used for
the construction of a sports stadium, which is for a public purpose.
63. In the light of the stand taken by the respondents 1 to 3 that the
lands in entirety is not going to be used for the construction of a sports
stadium and that only a part of the lands are going to be used for the said
construction and that the sports stadium is for a public purpose and that the
land in which the sports stadium is going to come up has long been used as a
playground, this Court, to balance the interests of either parties to the lis is of
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the considered view that by invoking the inherent jurisdiction of this Court
under Article 226 of the Constitution a direction for part utilisation of the
lands for the construction of sports stadium and the balance portion to be
utilised as playground for the welfare of the students studying in the schools
in and around the locality, including the school of the petitioner, could be
issued, which would definitely subserve the cause of justice.
64. In such view of the matter, while this Court is not inclined to
quash the impugned notice, however, the writ petition stands disposed of with
the following directions :-
i) Upon receipt of objections and considering the
same in accordance with law, it is open to the
respondents 1 to 3 to hand over the requisite
portion of the lands, as has been averred in the
counter of the 1
st
respondent, to the 4
th
respondent,
for the construction of a sports stadium for public
purposes by passing appropriate reasoned order.
ii) Since the land in Old S. No.4542, New TS.
No.63, Block No.95, Mannargudi Taluk, Tiruvarur
District, has all along been used as a playground
by the petitioner school as well as other schools in
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the locality, the District Collector, Tiruvarur, is
directed to ensure that the balance portion of the
unused land shall be maintained by the
Mannargudi Municipality by duly fencing the entire
lands and the said portion shall be earmarked as
playground for utilisation by the schools in the
locality for the students studying in the said
schools.
iii) The portion of the land, which is allotted to
the 4
th
respondent for construction of sports
stadium, shall also be made available to the
petitioner school as well as the other schools in the
locality as and when sports events are conducted by
the schools in addition to the stadium being used
for public purposes related to sports activities.
iv) It is also made clear that since a portion of the
land has been allowed to be utilised for the
construction of a sports stadium, the balance
portion is directed to be maintained as school
playground for being utilised by all the schools in
the locality, including the petitioner, this Court
directs the Secretary, Education Department, to
instruct all the authorities, including the Director
of School Education and Director of Higher
Education not to take any action with regard to
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cancellation of recognition for the school of the
petitioner as also the other schools in the locality
citing want of space for playground.
v) Consequently, connected miscellaneous
petitions are closed. There shall be no order as to
costs.
vi) Registry is directed to mark a copy of this
order to the Secretary, Education Department,
Government of Tamil Nadu, who shall ensure the
compliance of the directions issued by this Court at
S. No. (iv) above by its subordinate authorities.
22.11.2024
Index : Yes / No
GLN
To:
1. The Revenue Divisional Officer
V.O.C. Road, Mannargudi
Tamil Nadu 614 001.
2. The Tahsildar
Taluk Office Road
Mannargudi, Tamil Nadu 614 001.
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3. The Revenue Inspector
Taluk Office Road
Mannargudi, Tamil Nadu 614 001.
4. The Member Secretary
Sports Development Authority of Tamil Nadu
Jawaharlal Nehur Stadium Raja Muthiah Road
Periyamet, Chennai 600 003.
5. The Director of School Education
DPI Campus, College Road
Chennai 600 006.
6. The Chief Educational Officer
Thiruvarur District
Thiruvarur.
7. The Secretary
Education Department
Government of Tamil Nadu
Fort St. George, Chennai.
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W.P.No.32993 of 2023
M.DHANDAPANI, J.,
GLN
ORDER IN
W.P. NO.32993 OF 2023
Pronounced on:
22.11.2024
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Page No.49 of 49 https://www.mhc.tn.gov.in/judis
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