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PETITIONER: SRI VIDYA MANDIR EDUCATION SOCIETY (REGD.)

       Vs.

RESPONDENT: MALLESWARAM SANGEETHA SABHA

DATE OF JUDGMENT30/07/1994

BENCH: (K.RAMASWAMY AND R.M. SAHAI, JJ.)

ACT:

HEADNOTE:

JUDGMENT:                            ORDER 1.   Leave granted. 2.   The appellant-society has been running a school at 11th Cross  West Park Road, Malleswaram in Bangalore  City.   The said school has been in existence for about 22 years and was shifted in 1976 to the present premises.  The school has got about  1500  students.  Adjacent to the school there  is  an open  land  about 300 ft. x 75 ft.  It is the claim  of  the appellant  that they have applied for allotment of  land  of 100 ft. x 75 ft. to use it as a playground for the  children as there is no open land for playground.  It is their  claim that the municipal corporation had not allotted the land and that  therefore they moved a petition.  Their  petition  has been dismissed by the corporation without considering  their request.   When the matter has gone to the High Court  under Article 226, initially the learned Single Judge remitted the matter  for  reconsideration  by  the  corporation,  but  on appeal, in the impugned judgment in Writ Appeal No. 2407  of 1990, the Division Bench by order dated 25-3-1992 interfered with and dismissed the writ petition of the appellant.  Thus this appeal, by special leave. 3.   It  is  not  in dispute that  the  appellant  has  been running  the school for about 22 years and that there is  no independent  land  for use as a playground by  the  students around   1500.    Admittedly,  Respondent   1,   Malleswaram Sangeetha  Sabha  obtained  lease  of  the  land  from   the municipal corporation to an extent of 100 ft. x 75 ft. which is adjacent to the school.  The appellant claimed  allotment of  same land near about the school.  The High  Court  found that the appellant had + Arising out of SLP (C) No. 15992 of 1992 27 not made any specific claim to allot that particular land, a vague  reference was made to allot any land adjacent to  the school  and that therefore the appellant cannot claim as  of right for any allotment.  In view of the fact that from 1976 the school is being run in the present premises and adjacent to  this the land allotted to the 1st respondent  admittedly was vacant at that time.  Reasonably when the school claimed for  allotment, the allotment may be adjacent to the  school

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so  that  the land could be used by the  children  as  their playground without any difficulty.  Obviously the  municipal corporation  was  to allot the vacant land adjacent  to  the school instead, it had granted lease to the 1st  respondent. Under those circumstances we find it is just and proper that the  municipal  corporation should allot the  adjacent  land allotted to the 1st respondent to the appellant’s school for using it as a playground.  It is also pointed out that after this  land,  there appears to be another vacant land  of  an extent  of 200 ft. x 75 ft. as stated in  the  Plan-Annexure ’E’ filed in this Court as part of the documents and if that land  is  vacant municipal corporation  would  consider  the allotment  of  100  ft. x 75 ft. in that  land  to  the  1st respondent for using it for construction of the building for musical concert.  In case of any difficulty any other vacant land  in that area may be considered for allotment on  lease to the first respondent. 4.   Under  these circumstances the order of the High  Court is set aside and there shall be a direction to the municipal corporation to allot the land of 100 ft. x 75 ft. which  was allotted immediately to the 1st respondent to the appellant- society and within a period of three months from the date of the  receipt of the order an equal portion may  be  allotted near  about  the  place  to the  1st  respondent  as  stated earlier. 5.   The appeal is allowed but in the circumstances  without costs. 28