THE SCHOOL COMMITTEE OF DEVANGA HIGHER SECONDARY SCHOOL, REPRESENTED BY ITS SECRETARY Vs. THE COMMISSIONER, COIMBATORE CORPORATION

JUDGEMENT

(1.) The writ appeal has been filed against the order of a learned single Judge of this Court in W.P. No. 16122 of 1994 dated 14.9.1994, dismissing the writ petition on the ground that there is sufficient material to held that the appellant violated condition No. 2 of the gift deed and consequently, the grievance sought to be made against the impugned order that the power of resumption is not available to the respondent in the case on hand, cannot be sustained, since the only point urged by the learned senior counsel as a challenge to the impugned order at the time of bearing is not accepted by the learned Judge, the writ petition was dismissed.

(2.) Aggrieved by the said order, the petitioner filed this writ appeal, and the same was admitted by the First Bench on 17.9.1994 and interim stay of the operation of the order of the respondent in his proceedings dated 5.9.1994, was also stayed.

(3.) In our opinion, the writ petition is maintainable. When the writ petition was heard and the counsel submitted that the relief sought for is to quash the order of resumption passed by the respondent Corporation, the learned Judge observed that it is a matter which has to be agitated only in a suit and not by way of writ petition. Counsel submitted that the power of resumption is not available to the respondent as the gift has become absolute by construction with running of a school in the property gifted by the Corporation and therefore, the matter can be decided in the writ petition itself. As per clause 2 of Schedule II of the gift deed, the donee covenanted to use the land to be granted only for building a high school and to use the land and the building to be constructed on it for the purpose of a school or college and allied buildings if and when it comes under the management. The appellant management in fact had constructed a school building covering an area of 2 acres and have been running the same from 1948 and complied with the conditions imposed in the above clause. In our view, the power of resumption is given to the respondent Corporation only if the above condition or any part thereof of the above condition is breached or in the event the recognition being withdrawn to the appellant. As there is no breach of condition No. 2, there is no power of resumption as the petitioner association becomes the absolute owner. In this background, we shall now consider the case of the rival claims.