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K.R. Zillaparishad High School Committee, Katuru Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 390 of 1975
Judge
Reported inAIR1976AP285
ActsConstitution of India - Article 226
AppellantK.R. Zillaparishad High School Committee, Katuru
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateA. Venkataramana, Adv.
Respondent AdvocateGovernment Pleader and ;P. Babula Reddy, Adv.
Excerpt:
property - encroachment - article 226 of constitution of india and sections 6 and 7 of land encroachment act - writ appeal to issue mandamus restraining respondents from interfering with school authority's possession of land - respondent erroneously proceeded on basis that the land which is actually used for more than twenty five years by school - ignored registered gift deed duly executed by donors - in case of unlawful and illegal encroachment of government lands authority to follow procedure prescribed and issue notice under section 7 - after due enquiry authority to pass orders under section 6 evicting person in possession - respondent had not proceeded under provisions of act - impugned order of respondent liable to be quashed - writ of mandamus issued restraining respondent from.....kondaiah, j.1. this appeal is directed against the order of our learned brother, chinnappa reddy, j., in w.p. no. 2925 of 1975 dismissing the writ petition filed by the appellant on the ground that a regular suit is the appropriate remedy for determining the title and ownership of the property in question.2. we may briefly state the material facts leading to this appeal: the school committee of betur village, ganavaram taluk in the district of krishna formed in or about the year 1945-46 collected the requisite funds and donations from the villagers for the construction of a high school building and acquired a site for the school building as well as playground for students. kadiyala family of chatter village had gifted at the request of the villagers as well as the then district board.....
Judgment:

Kondaiah, J.

1. This appeal is directed against the order of our learned brother, Chinnappa Reddy, J., in W.P. No. 2925 of 1975 dismissing the writ petition filed by the appellant on the ground that a regular suit is the appropriate remedy for determining the title and ownership of the property in question.

2. We may briefly state the material facts leading to this appeal: The School Committee of Betur Village, Ganavaram taluk in the district of Krishna formed in or about the year 1945-46 collected the requisite funds and donations from the villagers for the construction of a High School building and acquired a site for the school building as well as playground for students. Kadiyala family of Chatter village had gifted at the request of the villagers as well as the then District Board authorities, Ac. 5-39 cents of land in R.S. No. 813/2 for the construction of school building or for use as playground of students or garden under a registered deed dated 1-7-1948. The recitals in the registered deed show that Surredi Venkatramaiah the present President of the School Committee also had gifted to the same institution a land adjoining the land gifted by the Kadiyala family. Thereafter a regular building to locate the school has been constructed with the funds collected by the school committee and the students have been using the land gifted by Kadiyala family as a playground since that time. Subsequently, the management of the school has been entrusted to the authorities of the then District Board. The High School was named after Kadiyala Ramayya, the ancestor of the principal donors.

The school building and the playground adjoin the Harijanwada of Katur. The very building of the High School is on one side of the site belonging to the High School and the remaining portion adjoining the school building is being admittedly used as the playground. The school authorities decided to plant cement pillars and have a barbed wire fencing on the northern side of the playground for the construction of which the Zilla Parishad authorities, Krishna in fact, sanctioned the requisite sums of Rs. 5,000 and Rs. 11,000 in the years 1970-71 and 1972-73. Pursuant to the decision taken by the school authorities and the subsequent sanction of the requisite amounts by the Zilla Parishad, the cement pillars have been planted in execution of the work and when the barbed wire was sought to be put, some of the representatives of the Harijanwada have filed a representation on 5-6-1972 before the Gram Panchayat Translation of the said representation reads as follows :

'Towards south of our Harijanwada there is poramboke land. Sri Parishad High School has been using the above poramboke land as playground. Now they want to construct a wire fence so that no outsider may enter the ground.

If our Harijanwada catches fire, we would not have any easy way out, if that fence is constructed. In order to go quickly to the latrine constructed for Harijan women, as there is no way on the southern side we will be put to lot of inconvenience. Therefore we request you kindly to give six yards width of way east to the west in the above peramboke land and thereby create all conveniences a to us for which we will be ever grateful.'

Thereupon the Panchayat Board passed a resolution on 12-6-1972 requesting the Chairman, Zilla Parishad to grant a thoroughfare to the Harijans as requested by them in their application. Subsequently a petition to the Chairman, Zilla Parishad, Krishna District has been sent by the Harijans of the village with a similar request. Therein it was stated that Ac. 5-39 cents in R.S No. 813/2 is a poramboke and it is used as playground for the students of Zilla Parishad High School and 'the High School Committee is now proceeding to lay cement poles and fix barbed wire fencing on the northern extremity of the said poramboke and thereby cutting off the passage from the residences of Harijans to the East as they have been doing so for the past several decades'. Till 1974 nothing seems to have actually happened. The site was inspected by the then District Collector, Sri K.R. Venugopal, the Executive Engineer and some others. Subsequently, the District Collector Sri K.R. Venugopal passed the impugned order on 25-9-1974 which reads as follows:--

'The residents of the Harijanwada Katur village have represented that they have been using a strip of Poramboke land in R.S. No. 813/2 as a pathway to reach the public latrine situated to the east of the playground of the Zilla Parishad High School, Katuru and that in order to ensue the pathway to the lavatories along side of the said playground, the school committee may be asked to shift the fencing leaving the footpath of 8 feet which has always been used by the residents of the Harijanwada. The site under reference lies in R.S. No. 812/2 and it has been inspected by the Collector on 1-9-1974. During the inspection it is established beyond doubt that the residents of the Harijanwada have been using the pathway along side the playground for over a long time. To enclose the playground in R.S. No. 813/2 with a fence by the High School Committee cutting across the pathway is unfair and it is against the custom and usage and is calculated to deprive the Harijan residents of the facility of the pathway running along side of the playground to reach the latrines. As the fencing proposed to be put up is calculated to harm the interests of the Harijans, the school committee is directed to shift the fencing beyond the said pathway of 9 feet width so that the clearance between the Harijanwada and pathway which has always been used by the Harijans may continue to be available to them as it is an indispensable passage to the place used by them for lavatory purpose.

The Revenue Divisional Officer, Nuzvid is requested to take immediate necessary action to see that the fencing is shifted beyond the aforesaid pathway as indicated above.'

The High School Committee was directed to shift the fencing beyond the said pathway of 9 feet width so that clearance between the Harijanwada and the pathway may continue to be available to them. According to the Collector, the act of the High School Committee in cutting across the pathway is unfair and is against 'custom and usage and is calculated to deprive the Harijan residents of the pathway running along side of the playground to reach the latrines.' Though no notice or opportunity was given to the school committee or is President before passing the impugned order, a copy of order was marked and communicated to the President of the School Committee through the Headmaster, pH School, Katur. Aggrieved by the decision of the Collector, the appellant preferred a revision to the State Government on 4-10-1974. Though stay of the operation of the order of the District Collector was granted by the Government on 11-10-1974. Pending final orders on the revision petition, the revision was finally rejected on 12-5-1975. It was pointed out in the Government order that the Collector, Executive Engineer and Chairman of the Zilla Parishad inspected the site but no objection was raised for the alienation of the 9 ft width of site along the northern border of the school to the pathway for Harijans and there was already a beaten pathway along the northern border of the school site to indicate that it was used by the residents of the Harijanwada. It was further observed thus:

'there are no records in the office of the Zilla Parishad and the Collector, Krishna showing the land donated by Kaliyala families, that the site in question is recorded in the village accounts as poramboke and that the petitioner could not establish any facts detrimental to the running of the school provided the pathway to the Harijans is formed along side the northern border.'

Aggrieved by the decision of the Government, the appellant filed the writ petition to quash the orders of the Government and the Collector and to issue a Mandamus restraining the respondents, their subordinates and servants from interfering with the school authorities' possession of the land on the northern side. The learned single Judge refused to entertain the writ petition and dismissed the same as stated earlier.

3. Sri A. Venkataramana, the learned counsel for the appellant contended that the Panchayat Board, Zilla Parishad as well as the District Collector and the Government erroneously proceeded on the basis that the land which is actually used for more than 25 years by the High School students as playground is a poramboke ignoring the registered gift deed executed by Kadiyala family members on 1-7-1948 and other donors in respect of 9 acres of land for the specific purpose of the school building and the playground at the specific request, in writing, of the then Special Officer of the District Board, Krishna in is proceedings dated 30-3-1948 and the school building was constructed immediately thereafter and the authorities, in the circumstances, have no jurisdiction to evict the school authorities from the land in dispute under law and the land gifted by the donors for the specific purpose of constructing a school building or playground cannot be alienated by the Zilla Parishad nor can the school authorities be evicted by the Revenue authorities on the ground that it is an unlawful and illegal encroachment of Government land.

He further submitted that the alleged entry in the Adangal to the effect that this land is a playground poramboke is a concocted one brought into existence by the Revenue authorities at the instance of the Collector and in any event, such documents or evidence cannot prevail over the registered gift deed of the year 1948 when there were no disputes amongst the parties and wherein it was specifically mentioned that the land belonged to the ancestors of the donors as 'Varam thota' and no one has any title to or possession in it and the same must be utilized for the specific purpose of playground, and that even if the land belonged to Government as poramboke, the Collector is not empowered to arbitrarily and high-handedly dispossess the school authorities from the land in dispute as he is also bound in law to take appropriate proceedings under the Land Encroachment Act after observing the procedure prescribed therein but cannot take law into his own hands and act in a high-handed manner. According to the counsel even the Zilla Parishad cannot without following the procedure prescribed therefor, alienate the land in dispute to the Harijans on the assumption that it belonged to it.

4. This claim of the appellant is strongly resisted by the learned Government Pleader for Panchayat contending inter alia that the land in dispute, though in the possession and enjoyment of the school and used as playground since more than 25 years, really belongs to the Government as it is a playground poramboke that the Collector is empowered to give this land for the purpose of locating a pathway or road for the convenience of the Harijans who are living nearby, that the impugned order of the Collector was passed with the concurrence of the Zilla Parishad and that the direction given by the Collector to the School Committee to shift the fencing beyond the pathway of 9 feet width is not shown to be in any way detrimental to the functioning of the High School or the playground. Further, it is contended that the writ petition by a School Committee, an unregistered association is not maintainable and there is no locus standi for the appellant-petitioner to file the writ petition and the order of the Collector has merged with that of the Government which passed the order after following the procedure prescribed under Section 72 of Andhra Pradesh Zilla Parishads and Panchayat Samithis Act and in any event, the impugned orders are administrative orders but not quasi-judicial orders and the same are not liable to be quashed as the respondents 1 and 2 have ample power and discretion to pass the same.

5. Sri Babula Reddy, the learned counsel for the respondents 3 and 4 adopted the stand taken by the Government Pleader and added that the writ petition is liable to be dismissed on the ground that there is a dispute with regard to title to the land in question and cited the decision of the learned single Judge of this court in W.P. No. 6111 of 1973, D/- 8-7-1975 = : AIR1976AP165 to the effect that the power conferred on the High Court under Art. 226 of the Constitution is only discretionary and it may not be exercised except in cases of manifest injustice.

6. Upon the respective contentions advanced on behalf of the parties, the following questions arise for decision :

1. Whether the writ petition by the petitioner-school committee is or is not maintainable?

2. Whether the impugned orders of the Collector and the State Government are liable to be quashed with a direction to the respondents not to interfere with the enjoyment of the disputed site by the petitioner and the construction of fence by the school authorities as prayed for?

7. We shall first advert to the maintainability or otherwise of the writ petition. The preliminary objection as to the maintainability of the writ petition is two-fold: (1) The School Committee, an unregistered association, has no locus standi to file the petition and (2) the School Committee has no interest in the property in dispute. In support of this claim the Government Pleader relied upon the decisions in Country Tobacco Merchant's Association v. Krishna Market Committee, Vijayawada, 1957-2 Andh WR 250, and Director-General, Ordinance Factories Employees' Association v. Union of India : (1970)ILLJ707Cal . In the first case, the learned Judge, Jaganmohan Reddy (as he then was) was of the view that a writ petition filed in a representative capacity by an unregistered association cannot be entertained as the association as such is not aggrieved but it is the individual members of the association that could be said to have been aggrieved, entitling them to file separate writ petitions.

In the latter case, a learned single Judge of the Calcutta High Court also opined that all the members of an unregistered association only can file writ petition and such association is not a legal entity. The aforesaid view expressed by the learned Judges is no longer good law in view of the authoritative pronouncement of the Supreme Court in Venkatarama Rao v. Government of Andhra Pradesh, : [1966]2SCR172 . Therein it fell for consideration whether the appellant, who represented the committee formed by the villages of Dharmajigudem to collect a fund of Rs. 10,000 for the purpose of depositing the same with the Block Development Officer for locating a health centre, has locus standi to file the writ petition under Art. 226 of the Constitution questioning the order of the State Government. The law on this aspect has been succinctly laid down by the learned Judge Subba Rao, J., (as the then was) at page 833 thus :

'The first question is whether appellant had locus standi to file a petition in the High Court under Art. 226 of the Constitution. This Court in Calcutta Gas Co. (Proprietary) Ltd., v. State of West Bengal : AIR1962SC1044 , dealing with the question of locus standi of the appellant is that case to file a petition under article 226 of the Constitution in the High Court observed :

'Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore clear that persons other than those claiming fundamental right can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder, but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right............. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.' Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting u the Primary Health Centre. The said Committee collected Rs. 10,000 and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Centre at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorised to act on behalf of the Committee. The appellant was, therefore a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution.'

8. The aforesaid authoritative pronouncement of the Supreme Court leaves no doubt in our minds that the School Committee represented by its President can only file the present writ petition. Just as the appellant in the Supreme Court case, Surreddi Venkatramaiah in the present case is the President of the School Committee which, in law, is a trustee of the amounts collected from the villagers for the public purpose of constructing the High School building and providing a playground for the students and he represents that School Committee as well as the State Government as the proper person representing the School Committee. From the very impugned order, we find that the High School Committee has been recognised to be a legal entity. In any event, it has been treated so by the Collector as well as the Government.

In fact, the very order passed by the District Collector directs only the School Committee to shift the fencing beyond the pathway of 9 feet width and the very first copy of the order was marked and despatched to the President of the School Committee through the Headmaster of the high school. Even in the petition filed by the Harijans and the first and second paragraphs of the impugned order of the Collector, mention was made of the School Committee and the very action sought to be remedied by the Collector's order is nothing but tat of the School Committee. The language of the order passed by the Collector is clear in this regard and it does not lie in the mouth of the respondents 1 and 2 as well as the respondents 4 and 5 to raise this technical objection of locus standi and the maintainability of the writ petition for the first time at this stage.

We may add that the writ petition was not dismissed by the learned single Judge on the ground that it is not maintainable or that the petitioner has no locus standi to file the same. But as pointed out earlier, it has been dismissed on the ground that the petitioner has an effective alternative remedy of a regular suit to determine the question of title to the disputed land. We may also state that the very revision before the State Government was filed by the appellant herein and the orders of the State Government also have been addressed and communicated only to the appellant herein. The high school committee has been formed not new but as early as in the year 1946 or 1947. We may recapitulate that the then Special Officer of the District Board had addressed the President of the School Committee in March, 1948 to arrange for the gift land of Ac. 9-00 before construction of the school building and the playground.

That apart, Surreddi Venkatramaiah who represents the School Committee is also having an interest in the disputed land in view of the fact that he is one of the donors of a portion of the land given for the playground in the year 1948 and the fact that the High School has been named after Kadiyala Ramayyaa, who was the ancestor of the principal donors, would speak for itself that the appellant and other members of Kadiyala family have certainly an interest in the property who can be safeguarded in this writ proceeding. They have also got every right to see that the property gifted by them should be used and utilized only for the purpose for which it was gifted but not for any other purpose. The proceedings which they have initiated in a Court of law have to be examined on merits. It is rally regrettable that the respondents have taken such an extreme stand relating to the maintainability of the writ petition, although it was the villagers who were benevolent and munificent enough to donate nearly Ac. 9-00 of valuable land and contribute the requisite funds for the construction of the high school building.

9. The decision of our learned brother, Lakshmaiah, J., in W.P. No. 6111 of 1973, D/- 8-7-1975 = : AIR1976AP165 on which strong reliance has been placed by the counsel for the respondents 3 and 4, is distinguishable on facts. Therein there was a dispute with regard to title to, as well as possession of the property. In the present case, admittedly the disputed land is in the possession and enjoyment of the school authorities for more than 25 years and there are registered deeds of gift executed by the donors in the year 1948 in favour of the educational institution. Judged from any angle, we are satisfied that the appellant-petitioner has interest and locus standi to maintain the writ petition and the preliminary objection is not sustainable. Our answer to question No. 1 is in the affirmative and in favour of the appellant.

10. This brings us to examine the question No. 2 relating to merits. The school authorities are actually using the entire land gifted under the registered document dated 1-7-1948 as a playground for the students since more than 25 years. When they decided to plant cement pillars and have a barbed wire fencing on the northern side of the playground, the Harijans residing in the Harijanwada, as already stated, have filed an application on 5-6-1972 to the Panchayat Board requesting for leaving 6 yards width of way as a pathway to reach the public latrines. The matter was taken up to the Chairman of the Zilla Parishad and the District Collector. The District Collector, Chairman of the Zilla Parishad, Executive Engineer and some others had inspected the disputed land on a particular day. There is no material on record to show or establish that any of the school committee members or its President was either present on that occasion or an opportunity to make representations with regard to the problem was given. Even the impugned order of the District Collector does not indicate that any notice was given to the school committee or its President although the very operative portion of the order is directed against the school committee to shift the fencing by 9 feet width.

In the impugned order, Sri K.R.Venugopal, the then District Collector, Krishna observed that 'to enclose the playground with a fence by the High School Committee cutting across the pathway is unfair and it is against custom and usage and is calculated to deprive the Harijan residents of the facility of the pathway running along side the playground to reach the latrines.' We are unable to find any material or justification for the District Collector to make such observations. It is not for the District Collector who went to inspect the disputed land to hold that there was a custom or usage by a particular section of the people when the matter is in dispute. It is the province of the Courts of law, but not an executive officer like the District Collector to pronounce upon custom and usage. The District Collector Sri K.R. Venugopal appears to have acted high-handedly and arbitrarily and taking the law into his own hands.

He should have thought that he has a duty to act in accordance with law even if he feels that some inconveniences, hardship or injustice has been caused or done to the members of the weaker sections and the Harijans. He clutched at the jurisdiction which he did not have, to decide the question of custom and usage which is the exclusive province of the Courts of law. He appears to have thought that he can do and undo things. He should have realized that he as the District Collector, has a duty to act according to law and he cannot take law into his own hands and act arbitrarily and high-handedly. If he had exhibited some restraint and shown sufficient tact, the present problem would have been solved without any difficulty and to the advantage of the Harijans as well as the High School Committee.

He should have certainly made use of the beneficence and munificence of the villagers and harnessed the same for the development of the public institution and at the same time provided the Harijans with the facility of a pathway to go to the public latrines. It is nobody's case that there is no way for the Harijans to go to the public latrines. Nor is the Collector competent to decide the question of easement by way of necessity or by custom. Even if a pathway for Harijan ladies to go to public latrines, is needed, 9 feet width of way is not necessary. He must have realized that a Commissioner appointed by a Court also inspects the land in dispute and hears any representations made orally but this does not however, make him think that he is empowered to decide as to who is entitled to the disputed land or whether there has been a custom or usage or any easementary right on that land in favour of one party or other. The District Collector might have been over-anxious to implement the State policy to help the weaker sections of the people and in particular, the Harijans.

This Court would not, in any way, interfere with the policies of the State. We would certainly appreciate the officers who conscientiously and lawfully carry out and implement the policies of the Government. However, neither the District Collector nor any other employee of the State can take law into his own hands and decide the questions which fall within the exclusive jurisdiction of Courts of law in their anxiety to achieve but in achieving such laudable objects the concerned authorities must be always conscious of their limitations. They must invariably adopt lawful and peaceful means but, under no circumstances, they should act arbitrarily, capriciously, dishonestly and in accordance with their whims and fancies. It is apposite to notice in this context what has been stated by the learned Judge, Shah, J, (as he then was) speaking for the Court, in Union of India v. M/s. Anglo Afghan Agencies, AIR 1968 SC 718 at p. 723 while construing the scope of the theory of executive necessity ;

'Under our constitutional set-upon person may be deprived of his right or liberty except in due course of and by authority of law; if a member of the executive seeks to deprive a citizen of is right or liberty otherwise than in exercise of power derived from the law-common or statute the courts will be competent to, and indeed would be bound to, protect the rights of the aggrieved citizen.'

The District Collector, in the discharge of his duties, should set an example to the other officers in the District but should not give room, for complaints by resorting to unlawful and short-cut methods not permissible under law and which are violative of the principles of natural justice. The high-handed and arbitrary action of Sri R.K.Venugopal, the then District Collector alone has brought about this unnecessary complication and bad blood between the villagers at Katur affecting the functioning of the high school as stated by its Headmaster in one of his letters. He could have certainly taken guidance and advice of the Chairman of the Zilla Parishad, Krishna an elected representative of the people, rather than passing this type of order on mere inspection. In the circumstances, he should have either solved the problem amicably without any violence or directed the parties concerned to go to a court of law and establish their rights.

11. We are unable to agree with the District Collector and Zilla Parishad authorities that they could not get at the registered gift deed dated 1-7-1948. It is not permissible for the respondents to ignore registered gift deeds which would disprove the stand taken by them. Their explanation to the effect that the original registered documents of gifts of the land were not traceable in the Zilla Parishad office is neither satisfactory nor worth-considering. The District Collector, who did not even afford an opportunity to the school committee to represent their stand in the matter, did not think it his duty to look into the original documents. If they are not available, certified copes of the registered deeds could have been easily obtained. If the respondents had really applied their minds to the facts with a determination to find out the truth of the cause, the President of the school committee could have been easily asked for the supply of copies of registered documents in which case the appellant would have certainly filed the same before them. In fact, a certified copy of the registered gift deed dated 1-7-1948 has been placed before us. The recitals therein completely destroy and disprove the theory set up by the respondents that the land is a poramboke land.

The recitals in a registered document of the year 1948 at a time when there were absolutely no dispute between the parties would certainly prevail over some entry made in the village accounts that the disputed land is a poramboke land. If it was really a Government Poramboke land, there was no need for them District Board authorities in the year 1948 to make an execution of a registered gift deed by the donors a condition precedent. A dispassionate authority can certainly find where the truth lies. It is pertinent to notice that the eastern boundary of item No. 1 of the property gifted under the registered deed, viz., Survey No. 202./1 and measuring Ac. 5-10 cents, was described as 'Harijans' but not as pathway. If the pathway, as found by the District Collector, was in existence for decades, it should have certainly been mentioned or indicated as the eastern boundary of item No.1. The stand taken by the respondents is not only not borne by records but is contrary to the recitals found in the registered gift deed. If this document had been looked into, we are sure that the District Collector would not have passed the impugned order which resulted in grave injustice to the public institution.

12. We shall examine the contention of the respondents that the land used as playground for the students of the school is a poramboke. Some entry in No. 10 (1) account of the village is placed before us to show that it is a poramboke land. Poramboke lands may be of different kinds. The land in question is in a Zamindari Village and it is used as playground for more than 25 years by the school authorities. No land revenue need be paid by the landholder in respect of a poramboke situated in a zamindari village. In fact, this land was described and used to be called as 'Varam Thota' of Kadiyala family. By the mere fact that no land revenue or cist was paid, it cannot be said that it is a Government poramboke which existed in a Zamindari Village. Taking advantage of the fact that no land revenue was paid by the landholder for this land, the respondents now seek to claim it as Government poramboke otherwise known as playground poramboke.

Even assuming that it is a Government poramboke, the petitioner-school committee as well as the school authorities cannot be evicted from it by use of force or arbitrarily by the District Collector or any other executive authority. In cases of unlawful and illegal encroachment of Government lands or property, the authorities concerned have to follow the procedure prescribed therefor and issue notices under Section 7 of the Land Encroachment Act and, after due and proper enquiry, pass regular orders under Section 6 thereof evicting the persons in possession, but cannot take the law in their own hands and arbitrarily evict them or direct them to be evicted. Admittedly, the District Collector has not proceeded under the provisions of the Land Encroachment Act even on the basis that the land can be treated as Government poramboke.

13. The further submission of the learned Government Pleader that the land is the property of the Zilla Parishad and the Zilla Parishad has agreed to set apart the same for pathway to the Harijans cannot be accepted. Even under the Rules made under the A.P. Zilla Parishad and Panchayat Samithis Act, particular procedure has to be followed for acquisition and transfer of immovable property. The Zilla Parishad has not actually passed the impugned order in the present case. The mere presence of the Chairman of the Zilla Parishad Krishna and the Executive Engineer at the time of inspection of the disputed site by the District Collector does not satisfy the requirements of law.

14. We need not go into the submission of Mr. Venkatramana that the whole dispute is a result of factions as it is not our concern. No doubt, we see that the Harijan representatives, i.e. respondents Nos. 3 and 4 have not even filed a counter-affidavit but some busybody in the village belonging to a higher caste is only concerned and has sworn to a counter-affidavit and engaged a counsel in this court spending his monies. That however has, in no way influenced our decision as it is irrelevant for the purpose of determining the points at issue in this case.

15. For the reasons stated, the impugned order of the District Collector which is merged in the order of the Government must be and is liable to be quashed. If the respondents have any right, it is open to them to establish the same in a court of law but they cannot evict the school authorities from the disputed land by force.

16. The appellant's counsel states that the villagers are prepared even to contribute for the construction of the septic tank latrine for the benefit of the poor Harijans if this mater is amicably settled and the dispute has unnecessarily spoiled the peaceful atmosphere in the village resulting in interruption of the school administration and its functioning. That is a matter between the villagers and the Harijans as well as the representatives of the people. In this connection, we wish to make a suggestion. A portion of the Harijanwada is, in fact, divided by the high school building and the other portion of the site used as playground is now sought to be fenced with a barbed wire. The school authorities as well as the Zilla Parishad may, in the interests of the students as well as the institution, consider the desirability and advisability of constructing a regular wall on the remaining portion of site as playground instead of putting a barbed wire fencing. Such a construction would put an end to any further controversy between the school authorities and the Harijans and ensure the smooth and peaceful functioning of this educational institution.

We are not told by the learned counsel for the appellant that the villagers are also beneficent and munificent enough to contribute for the upgradation of the high school into a college. This educational institution is functioning very satisfactory when judged from its previous performance and results and has got all the potentialities to blossom into a college, if sufficient co-operation is extended by the District Collector, the Zilla Parishad and the State Government. We hope and trust that this institution with the co-operation and active assistance of the benevolent and munificent villagers, will bloom into a college imparting higher education to all the pupils including Harijans of the village as well as pupils in the neighbouring villages.

17. In the result, the impugned orders of the District Collector and the Government are hereby quashed and a writ of mandamus will issue restraining the respondents from interfering with the possession and enjoyment of the disputed land by the petitioner. The writ appeal is allowed with costs against respondents 1 and 2 only. Advocate's fee Rs. 100.

18. Appeal allowed.


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