WP/8762/1995 of SELAIYUR GOVT HIGH SCHOOL Vs COMMR,TAMBARAM MUNICIPALITY on 29 November 2002

:ORDER

The petitioner being a Welfare Association of SelaiyurGovernment High School, have prayed for the issue of a writ of certiorarifiedmandamus to call for the records of the second respondent in G.O.Ms.No.4 61,Revenue Dated 30.5.1995, to quash the said order and to direct respondents 1to 3 to assign the extent of 3.22 acrees of land in R.S. No.84/B1 and 84/B3of Selaiyur Village, in favour of the Government High School, hereinaftercalled as petitioner-school for convenience.

2. The petitioner being the President of the Parent-Teachers'

Association, has contended that an extent of 3.22 acres as stated above isclassified as cattle stand poramboke in the revenue records. The Villagershave been in possession and enjoyment from time immemorial. There was aMiddle School belonging to Tambaram Municipality which has been in existenceover 80 years. The Villagers had made a representation to the Government evenbefore Independence requesting for establishment of a High School. TheChairman of the then District Board was also requested by the Villagers asearly as 1950. The villagers had renewed the request in November, 1951.Thereafter, the villagers levelled the petition lands and entrusted the sameto the Middle School for the purpose of Play grounds for the School during1967 and ever since the said period, the lands have been used as a Play groundfor the students. Iron fencing was done subsequently. Tambaram Municipalityhad also passed a Resolution in Resolution No.270/70 requesting the Governmentto upgrade the petitioner-School as High School. In fact, a PhysicalEducation Instructor was appointed and his services were originally dispensedwith on the ground that there was no sufficient play ground. However, afterthe above lands were entrusted to the School for play ground, the appointmentof Physical Education Instructor was restored.

3. In 1978, the Municipal Council passed another Resolution requesting the Collector to assign the lands to the petitioner-School andanother Resolution was passed on 3.5.1982 recommending the upgradation of theSchool. The Director of School Education required an Endowment Deposit ofRs.22,500/-. The Villagers collected the said amount through donations fromthe villagers and the said amount was also deposited on 16.12.1981.Subsequently, the Middle School was upgraded as High School from the Academicyear 1985-86. In the proposal, the land in question has been shown as playground in possession of the petitioner-School.

4. It is further stated that at the request of the School proposals were sent by the Tahsildar during 1989 recommending the assignmentof the said land in favour of the petitioner-School. It is further statedthat in the same extent of 3.22 acres three class rooms were constructed inthe year 1991. In a further extent of 2200 sq. ft., class rooms wereintended to be constructed and foundation was also laid for the said work.The total strength of the students in the High School is about 700 in the HighSchool and in the Elementary section is about 1200.

5. At this juncture, the petitioners were surprised to be

informed that by virtue of the impugned order, the Government had granted alease of an extent of 1 acre of the land in question for a period of 20 yearsin favour of the fourth respondent School to be used as a Play ground by themon an annual lease for a rent of Rs.1,000/-. The petitioner contends thatthere is absolutely no justification in granting the lease in favour of thefourth respondent. When the fourth respondent tried to take possession of theland, villagers have resisted by organising a demonstration and prevented theentry of the fourth respondent school.

6. In the counter filed by the fourth respondent, it is stated that the fourth respondent School is an unaided institution. It wasestablished in the year 1978. The School is functioning from a buildingdonated by a philanthropist and the School is managing with a very small pieceof land which is hardly sufficient for use as a play ground even for theprimary Classes. In 1983, the fourth respondent had applied for assignment ofthe land in question. The said land is ideally situate for locating thefourth respondent school. The Special Commissioner and Land AdministrationCommissioner, by his letter dated 22.1.1987, recommended the assignment of theland. The District Administration however, expressed inability to assign forthe reason that the land was classified as "Meikkal Poramboke". However, itwas understood that the classification was only as "Mandaveli Poramboke". Thethird respondent by Resolution No.309, dated 30.8.1993 responded in theirfavour. They recommended the allocation of one acre of land out of 3.24acres. Finally by virtue of the impugned G.O.E.No.461 dated 30.5.1995, leaseof one acre was granted in favour of the fourth respondent on an yearly rentof Rs.1,000/-. The allotment was fair and equitable and the objections of thepetitioners cannot be upheld. The fourth respondent School was also being runfor the welfare of the locality. The requirement of the petitioner school issatisfied with 1.02 acres and they have no locus standi to agitate animaginary claim. The petitioner-School is not made a party and theAssociation cannot represent the interest of the School. The villagers haveno right to claim any right over the property. The payment alleged to havebeen made by the petitioner-school was only for the purpose of upgradation andthat has nothing to do with the possession of or the right over the land.There is no evidence to show that the villagers were promised with theassignment of the land. The construction as alleged by the petitioner wasalso denied. Such constructions have no sanction from the local authorities.The land is admittedly a poramboke land and the petitioner cannot claim to bein possession and enjoyment. The contention that the entire extent of 3 acreswas in possession and enjoyment of the Selaiyur Government High School, wasfalse. The authorities in pursuance of the impugned order granting the lease,attempted to measure and earmark the land leased out to the fourth respondent.However, this was thwarted by an unruly mob organised by the petitioner. TheDirector of the School has not approved the possession of the land by thepetitioner-school and he is not the competent authority to give any suchassurance for upgrading the School. The Government is the permanent titleholder and have the right to assign or lease the land to any one in theirchoice.

7. A reply affidavit has been filed by the petitioner denying the contentions in the counter affidavit of the fourth respondent. Thecontention that the Government High School should be satisfied with 1.0 2acres of land is not correct. In fact, the Headmaster of the Government HighSchool has made a representation on 14.6.1995 stating that the entire extentof 3.22 acres of land is in possession of the School for the past 25 years andthat class rooms have been constructed in the land. He has also requested theGovernment that the land should be kept in possession and enjoyment of theGovernment High School. There is no distinction between the "cattleporamboke" and " Mandaveli Poramboke" and the villagers have every right ofmake use of it for the common use of the villagers. The action of theGovernment in leasing out the land for 20 years by relaxation of the Rules asa special case was arbitrary and illegal act. The legitimate resistance ofthe villagers and the students cannot be called as unruly.

8. Neither the Local Body, the first respondent, nor the Government namely, respondents 2 and 3 have filed any counter.

9. Mr. R.Ganesan, learned counsel contends that the petitionerSchool had been established more than 75 years ago and had growninto the present shape and upgraded as a High School gradually by contributionof funds from the local residents for the welfare of their children. Thedevelopment of the School was undertaken by the villagers at every stage andin order to ensure that their children should have the necessary facility ofthe High School education within a reasonable distance and by a school run bythe Government or Local Body. They cannot afford the high cost of educationof the schools run by private institutions. At every stage including thestage at which the proposal for upgradation was under consideration, thevillagers had collected the necessary funds and deposited with the EducationalAuthorities. Even in the proposal for the upgradation, the land in questionhad been shown as a play ground in the possession of the school without whichthe upgradation would not have been granted. If the impugned order is giveneffect to, the school will not only be deprived of the play ground, but alsothe very upgradation of the School as a High School will be endangered andliable for cancellation.

10. Per contra, Mr.S.W.Kanagaraj, appearing for the fourth respondent school would contend that it is not as though the order in favourof the fourth respondent was passed in any secretive manner. The proposal bythe fourth respondent school was made even during 1982 or 1 983. The orderwas passed only after due enquiry and as there were no objections, a decisionwas taken by the Local Authority after taking into account the entire factsand circumstances. Even as early as 1987, the Special Commissioner for LandAdministration by his letter dated 22.1.1987 had endorsed the request of thefourth respondent School and had requested the Revenue Department to passorders on the request of the fourth respondent. The Tambaram Township also bytheir Resolution dated 30.8.1993 had resolved to lease one acre of land infavour of the fourth respondent. Learned counsel further contends that therewas no question of any estoppel in favour of the petitioner since at no pointof time any promise had been made in favour of the petitioner. Learnedcounsel relies on the decision of the Supreme Court in MADRAS CITY WINEMERCHANTS' ASSOCIATION v. STATE OF TAMIL NADU (1995 (II) M.L.J., 2) in

support of his contention that in the matters of policy, if there is a changein the policy, no question of legitimate expectation would arise. The LocalAuthority as well as the Government, in consideration of the prevailingcircumstances had changed policy as regards the usage of the land only to beon lease, and have accepted the offer of the fourth respondent by lease onpayment of rent. Therefore, this action cannot be challenged on grounds ofestoppel or legitimate expectation. Reference was also made to anotherjudgment of the Supreme Court in STATE OF BIHAR v. SUBODH GOPAL (A.I.R. 1968S.C., 281) in support of his contention that a person or body of personscannot claim any customary or communal right over a common property, belongingto the community as a whole and under the control of the Government/Localbody.11. I have considered the submissions of both sides. One ofthe issues to be decided in this writ petition is whether the petitioner isentitled to invoke the principle of legitimate expectation. There are certainundisputed facts relating to the claims of the petitioner school which hasbeen in existence for over 25 years. The possession of the land by them andalso the consideration of the said fact which had weighed with the authoritiesfor the upgradation of the middle School as High School, have not beenspecifically denied by the fourth respondent in their counter. Thecorrespondence between the villagers, revenue authorities and educationalauthorities clearly recognise possession of the land by the petitioner-school.It is also pertinent to note that no counter has been filed either by theLocal Authority or by the Government. The petitioner-School has grown fromthe stage of Middle School to the status of a High School and the recognitionof the School as a High School is interlinked with the the fact of thedisputed property being retained as a play ground. In the said background thequestion which arises for consideration is as to whose claims are better thanthe other. On the one hand, is the petitioner-institution which caters to theneed of the poor residents who cannot afford high cost of education, and alsothe very upgradation of the institution, depends on the possession of theproperty. The upgradation was also granted only on the petitioner's Schoolsatisfying the infrastructure, minimum area for putting the building and aplay ground as a condition precedent for the upgradation of the High School.Pursuant to the said object, the Parent-Teachers Association had also paidnecessary charges for the said upgradation. It is obvious that the villagershad taken so much of pains to collect the funds and had also collectivelyrepresented for the upgradation only with the expectation that they shouldhave a high school run by the Government/Localbody within their vicinity whichwould be within their economical reach. Now if they are to be deprived of thesaid facility and the School should lose its upgradation as a High School, theconsequences would be not only detrimental to the School, but also to thestudents now studying in the higher classes. In comparison we have, on theother hand, the fourth respondent School is a private school which generatesits own funds and which has come into existence much later in point of time.The fees and other expenses for educating the children in that school arebound to be on the higher side, which the poor section of the residents cannotafford. The fourth respondent School has till now not spent any amount norhas incurred any expenses as incurred by the petitioner-institution and thevillagers by collecting funds from the residents of the village and theParents' Association. These are the facts which are relevant for deciding asto whose claim stands on a better footing.

12. The quantum of Rs.1,000/- per year fixed as rent for anextent of one acre, is in my opinion a farce and pretence of charging rent.If the right or the need to collect the said rent alone was the real motivefor passing the impugned order, then the said offer could have been made tothe petitioner-school whose claims stand on better footing and whose existenceas a High School depends on retention of the land in question. Thepetitioner- sc hool is run by the Localbody/Government and very large numberof students are studying in that School. These facts are not disputed.Therefore, the decision to slice away one acre of land in its possession andto hand it over to a private institution by charging Rs.1,000/- per annum asrent does not reflect good motives. A further question which arises forconsideration is as to why the petitioner- school who is in possession of theland, was not put on notice before the impugned order was passed consideringthat they were already using the property and they have also asked forassignment of the land. A perusal of the orders passed in favour of thefourth respondent would disclose that the claims of the petitioner-School havenot at all been taken into account, to put it mildly, if not deliberatedisregard of the requirements and demands of the petitioner-school. Therequest for upgradation of the petitioner-School was made much prior to theproposal forwarded by the fourth respondent School. In the year 1982 itselfthe Township of Tambaram by its Resolution dated 3.5.1982 had resolved to handover possession of the property to the School subject to the approval by theGovernment. In spite of all these antecedent facts and the possession of theproperty by the petitioner-school, while dealing with the request of thefourth respondent school for leasing a portion of the property, certain wrongstatement of facts have been made in the letter of the Special Commissioner,Local Administration, addressed to the Special Commissioner, RevenueDepartment, dated --.1.1987. In paragraph No.2 of the said letter, a query israised for consideration as to whether in view of the claims of thepetitioner-school, was there any objection in the local authority to grant thelease in favour of the fourth respondent school. In paragrap h 6, it isstated that there is no objection from any quarters. Such a statement is madewithout any discussion with or communication to the petitioner-school. In myopinion, that is a wrong statement in view of the subsisting claims made bythe petitioner-school. The very notice Board put up on the land by the Schoolwill disprove it. Another statement is also made in paragraph No.4 that eventhough there was a Board in the land stating that the petitioner- schoolintended to put up construction, no such request has been made either by theSchool or the Educational Authorities. The said contention is wrongconsidering the Resolution of the Municipality dated 3.5.1982 in its 68thMeeting. In that Resolution it has been clearly stated that the extent of3.22 acres can be handed over to the School subject to approval by theGovernment. All these facts and the positive claims of the petitioner-schoolare totally ignored in the letter of the Special Commissioner as aforesaid.Subsequently also, villagers have been fighting for retaining of the land inquestion by the petitioner- school and several representations have been sentin this context as could be seen from the typed set of papers filed by thepetitioner. Even as on 4.4.1989 the villagers have sent a representation toall the authorities concerned including the Chief Minister and the EducationMinister. Their representation was also accompanied by a letter of the Memberof Parliament dated 11.9.1989, representing the area.

13. In spite of all the aforesaid facts, the

13. In spite of all the aforesaid facts, the Government/Localbody, has proceeded as though there was no objection from thepublic for leasing out the land in favour of the fourth respondent. It isalso not disputed that the request of the petitioner's school for assignmentof the land in their favour, is also pending for consideration. Even if theGovernment is not agreeable for assigning the land for any one which issuedoes not arise for consideration in this writ petition, the question is as towhether the decision of the Government in the impugned order to lease out theland in favour of the fourth respondent is justified.

14. For the aforesaid reasons, I am inclined to hold thatconsidering the larger interest of the villagers and the petitioner-schoolhaving invested considerable amounts paid by the villagers for the developmentand the upgradation of the school and considering that the school caters tothe needs of the poor residents of the area, there is no justification for thedecision of the respondents to have leased out the lands for a paltry sum infavour of the fourth respondent which is a private unaided school, who cangenerate their own funds for finding out an alternative land. Though the landis classified as a Mandaiveli poramboke, it is not disputed that the landcannot be put to any use for the cattle. Therefore, the wishes of thevillagers to utilise the property for a common cause and use by thepetitionerschool must prevail.

15. In the result, the impugned Government Order dated 30.5.1995 is quashed. But the writ petition is partly allowed and the prayerfor the direction to respondents 1 and 3 to assign the extent of 3.22 acres,is however, subject to further decision of the Government. The issue ofassignment of the land for the petitioner-school or whether it should beleased to petitioner-school, has to be separately considered on merits and inaccordance with law. Subject to the above observations the writ petition ispartly allowed. No costs.

Index: Yes.Internet : Yes.sai/-

To

1. The Commissionr,Tambaram Municipality,Tambaram,Madras – 45.

2. The Secretary to theGovernment ofTamil Nadu,Revenue Department,Madras-9.

3. The Collector of Chengai-MGRDistrict,Kancheepuram.