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2019 DIGILAW 200 (KER)

Prasad. T. v. Iritty Municipality

2019-02-26

SHAJI P.CHALY

body2019
JUDGMENT : 1. The following are the reliefs sought for by the petitioner: (i) Issue a writ of certiorari or other appropriate writ or order quashing Ext.P4 and P5 notices issued by the second respondent; (ii) Declare that the petitioner's institution (Central Technical Institution) is not liable to be registered under section 507 of the Kerala Municipality Act, 1994; (iii)Pass such other orders as this Hon'ble Court may deem fit in the circumstances of the case.” 2. Brief material facts for the disposal of the writ petition are as follows: 3. Petitioner is running a recognized private Engineering Institute by name 'Central Technical Institute, Iritty', which, according to the petitioner, is functioning from the year 2000 onwards with high reputation in Kannur District. The institute is conducting Kerala Government Certificate Courses (K.G.C.E) in several disciplines of Engineering. It is recognized by the Technical Education Department of the State of Kerala, as can be seen from Exts.P1 to P3 communications issued by the State Government in respect of the same. Now the issue confronted by the petitioner is in respect of Exts.P4 and P5 notices issued by the Secretary of the 1st respondent Municipality dated 03.07.2018 and 01.08.2018, informing the petitioner that the institute is conducted by the petitioner without registration in contemplation of the provisions of the Kerala Municipality Act, 1994, and directing the petitioner to submit a reply within three days, along with appropriate documents, failing which, the Municipality will take appropriate action to close down the institute. It is thus challenging Exts.P4 and P5, this writ petition is filed. 4. The 3rd respondent has filed a detailed counter affidavit, stating that the petitioner is having due recognition of the Department of Technical Education to conduct courses in 7 disciplines, and the certificate is issued by the Board of Technical Examinations, Government of Kerala. It is also submitted that, the syllabus for the examination is issued by the Government, which is being periodically renewed also. Inspections are also conducted strictly based on the Rules and Regulations and all the institutions are duty bound and obliged to comply with the Rules and Regulations of the said order and other orders issued by the Department from time to time. 5. Respondents 1 and 2 have filed a counter affidavit, justifying their stand adopted in Exts.P4 and P5. Inspections are also conducted strictly based on the Rules and Regulations and all the institutions are duty bound and obliged to comply with the Rules and Regulations of the said order and other orders issued by the Department from time to time. 5. Respondents 1 and 2 have filed a counter affidavit, justifying their stand adopted in Exts.P4 and P5. Apart from the same, it is submitted that, Ext.P4 notice was issued by the Municipality to the petitioner, requiring him to apply for registration of “Chaithanya ITC” as a tutorial institution. Despite receipt of Ext.P4 notice, petitioner did not apply for registration and continued to conduct classes, and it was thereupon that, Ext.P5 notice was issued. In Ext.P6 reply submitted by the petitioner, it is claimed that the name of the Institute is “Central Technical Institute” and the same is functioning under the complete control of Technical Education Department of the Government of Kerala and is functioning as per Government Order. Petitioner did not produce any document in support of his contentions. Apart from the same, it is contended that, the contention put forth by the petitioner cannot be sustained in view of the provisions contained under Sec.506(a) and (b) of Act, 1994. On inspection, it was also found that the petitioner is conducting the tutorial college in a two storied tiled dilapidated building, and there is no sufficient provision for waste treatment facilities. Further, waste water is seen collected in the premises resulting in breeding of mosquitoes. The pipes drawn from the toilets on the western side of the first floor of the building are leaking, and the land surrounding the building is lying unclean and unhygienic. Furthermore, since the class rooms are conducted in rooms constructed for residential purpose, there is no sufficient ventilation. Even though instructions were imparted to the petitioner to take necessary action to abate the nuisances, no action is taken by the petitioner. 6. I have heard learned counsel for the petitioner, learned Senior Government Pleader as well as the learned Standing Counsel appearing for the Municipality and perused the pleadings and the documents on record. 7. The issue revolves around Sec.506 of Act, 1994, which read thus: “506. Definitions.-- In this chapter,- (a) “recognised school” means a private unaided school recognised by the Government under the provisions in the Kerala Education Act, 1958 (6 of 1959) or the rules framed there under. 7. The issue revolves around Sec.506 of Act, 1994, which read thus: “506. Definitions.-- In this chapter,- (a) “recognised school” means a private unaided school recognised by the Government under the provisions in the Kerala Education Act, 1958 (6 of 1959) or the rules framed there under. (b) “tutorial institution” means an un-recognised institution (by whatever name called) having not less than ten students established or run by a person or persons for imparting education or instruction or training to any person in any subject with a view to help him to prepare or to appear for an examination in any branch of education conducted or recognised by the Government or the Universities in the State or other State Governments or Universities or the Central Government or any law for the time being in force but does not include, a recognised school or college affiliated to any University in the State.” 8. The paramount contention advanced by learned counsel for the petitioner is that, the institute of the petitioner is one recognised by the Government of Kerala, and therefore, Exts.P4 and P5 notices issued to the petitioner by the Municipality to register it as a 'tutorial institution', cannot be sustained. On the other hand, learned Standing Counsel for the Municipality submitted that, on a reading of the second limb of Sec.506(b), it is clear that, there is a clear disparity by and between the first and second limbs, which persuaded the Secretary of the Municipality to issue the impugned notices. Learned Senior Government Pleader has advanced arguments supporting the contentions put forth by the petitioner and in accordance with the statements contained in the counter affidavit filed by the 3rd respondent. 9. It is clear from the counter affidavit of the 3rd respondent that the contention put forth by the petitioner with respect to recognition of the institute by the State Government are all admitted. 9. It is clear from the counter affidavit of the 3rd respondent that the contention put forth by the petitioner with respect to recognition of the institute by the State Government are all admitted. On evaluation of Sec.506(b) of Act, 1994, it is clear that, “tutorial institution” means an un-recognised institution having not less than ten students established or run by a person or persons for imparting education or instruction or training to any person in any subject with a view to help him to prepare or to appear for an examination in any branch of education conducted or recognised by the Government or the Universities in the State or other State Governments or Universities or the Central Government or any law for the time being in force. 10. Therefore, on a reading of the first limb, it is clear that petitioner's institute being a recognised one by the State Government, the Municipality is not at liberty to insist the petitioner to have registration of the institute as a tutorial institution. In my considered view, the second limb of Sec.506(b) clearly excludes a recognised school or college affiliated to any University in the State. Therefore, the two limbs have different operative methods. In that view of the matter, the contention advanced by the learned Standing Counsel for the Municipality cannot be sustained under law. It is true, Exts.P4 and P5 are notices and the petitioner has submitted Ext.P6 objection to the same. However, since I find that the action initiated by the Secretary of the Municipality is without any authority under law, the same is arbitrary and illegal, liable to be interfered with by this Court under Article 226 of the Constitution of India. Moreover, it is a well settled proposition in law that, if the notice issued is without authority of law and jurisdiction, the writ courts are justified in interfering, especially when facts are clear from the available records. Therefore, the writ petition will stand allowed and Exts.P4 and P5 notices issued by the Municipality are quashed.