M.Gopal Gounder v. Special Tahsildar, Land Acquisition, Adi Dravidar Welfare Scheme, Gingee

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.01.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.4997 of 19991.M.Gopal Gounder (deceased)2.G.Perumal3.Mrs.Jayalakshmi.. Petitioners (P2 and P3 substituted in the place of deceased P1 as per order dated 28.8.2003 in WPMP.34092 of 2002)-vs-1.The Special Tahsildar,Land Acquisition, Adi Dravidar Welfare Scheme,Gingee.2.The Collector of Villupuram District,Villupuram.3.The State of Tamil Nadu, rep.byits Secretary, Adi Dravidar WelfareDepartment, Fort St.George,Chennai-600 009.4.The District Adi Dravidar WelfareOfficer, Villupuram. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records relating to the proceedings of the secondrespondent, issued under Notification dated 28.1.1999 under Section 4(1) of the Tamil Nadu Adi Dravidar Welfare Scheme Act 31 of 1978published in District Gazette, Villupuram District GazetteExtraordinary bearing No.4-A/M1/25385/97, Gingee Taluk, ThamanurVillage, No.122 and quash the same and consequently forbear the firstrespondent to proceed with the proceedings under Section 5(1) of theTamil Nadu Adi Dravidar Welfare Scheme Rules.For petitioners :: Mr.A.Palaniappan For respondents :: Mr.A.Arumugam, Spl.G.P.***** https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard both sides and perused the records filed in this case.2. The original petitioner, aggrieved by the acquisition of hisland in Survey Nos.31/10 and 31/13 situated at Thamanur Village,Gingee Taluk, Villupuram District under the provisions of the TamilNadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (forshort 'T.N.Act 31 of 1978'), has filed the present writ petition.Subsequently, as he had passed away, his legal heirs have come onrecord as petitioners 2 and 3.3. The writ petition was admitted by this Court on 25.3.1999. Aninterim order against dispossession of the lands from the petitionerwas also granted. The interim order came to be made absolute on28.8.2003. A counter affidavit has also been filed by the firstrespondent justifying the acquisition of the lands for the purpose ofproviding house sites to the beneficiaries, who belong to theChristian Adidravidar Community of that village.4. The first respondent being the prescribed authority initiatedproposals for the acquisition of lands for the Harijan Welfare Schemeand the notice dated 27.10.1998 under Section 4(2) was issued andserved on the owner of the lands. The original owner received thenotice. An enquiry was conducted on 13.11.1998. The land owner senthis objection dated 09.10.1998 by post to the officer concerned.5. The objection given by the owner was considered by theauthority concerned. He sent his proposal to the District Collector.The District Collector rejected the objections given by the landowner by his order dated 08.1.1999. Thereafter, a notification underSection 4(1) was published in the District Government Gazette on28.1.1999. An Award has been passed and the compensation amount hasbeen deposited into the Court. Pattas were also granted to 37beneficiary families.6. The only contention raised by the petitioner was that underthe T.N.Act 31 of 1978, lands can be acquired only for HarijanWelfare Schemes. The term ''Harijan Welfare Scheme" is defined underSection 3(g) of the Act and the term 'Harijan' is also defined underSection 3(f) of the Act. Inasmuch as Christian Adidravidar is notcovered by the Presidential notification issued under Article 341 ofthe Constitution, the acquisition made by the respondents are per seillegal and without jurisdiction.7. Before the issues can be decided, it must be stated that thismatter was filed at the time when a Full Bench of this Court wascalled upon to decide conflicting judgments of this Court on theprocedure involved under T.N. Act 31 of 1978. P.K.Misra, J., speaking https://hcservices.ecourts.gov.in/hcservices/ for the Full Bench rendered its opinion on 25.8.2006. It has beensince reported in 2006 (4) CTC 609 (R.Pari -vs- The Special Tahsildar(ADW), Devakottai and another). The Full Bench thereafter directedthe individual Writ Petitions to be decided on their merits and inaccordance with the direction of the Full Bench. Thus, the connectedmatters came to be grouped together and were posted before this Courton being specially ordered by the Honourable Chief Justice.8. In the counter affidavit dated 07.7.2000 filed by the firstrespondent, in paragraphs 2 and 5, the following averments have beenmade:-''2. I submit that the Land Acquisition proceedings toacquire 0.87.0 Hectares of Dry Land was initiated atDhamanur Village, Gingee Taluk to provide house site to theailing houseless converted Christian from Adidravidars ofDhamanur Village.... ... ... ...''5) There were 37 Adidravidar Christian familieswithout any house site for those families only, the landshave been acquired. Land Acquisition process initiated withdue care, only after considering all those things and aftertaking census of houseless persons."(Emphasis Added)9. The Form II Notice issued to the petitioner only stated thatit is meant for providing house sites to Adidravidars of the ThamanurVillage. The petitioner objected to the acquisition only the groundthat there is no requirement for acquisition of the land as theAdidravidars in that village are having sufficient house sites. Someof them are also having patta lands. Further, there are also otheravailable lands in that village. These objections were overruled bythe District Collector by his order dated 08.1.1999. It is only inthat rejection order, the District Collector had mentioned that thelands were acquired for the purpose of providing house sites toChristian Adidravidars of the village.10. The notification published under section 4(1) in theVillupuram District Gazette dated 28.1.1999 contains the purpose foracquisition, which may be extracted below:-''Whereas it appears to the Government of Tamil Nadu thatthe land specified in the schedule below and situated inthe Thamanur Village, Gingee Taluk, Villupuram District areneeded for the purpose of Harijan Welfare Schemes forproviding house-site to the converted ChristianAdidravidars of Thamanur Village, Gingee Taluk,VillupuramDistrict. Notice to that effect is hereby given to whom itmay concern in accordance with the provision of sub-section(1) of section 4 of the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Act 1978 (TamilNadu Act 31of 1978). https://hcservices.ecourts.gov.in/hcservices/ And whereas it has become necessary to acquireimmediate possession of the lands specified in the schedulebelow.Now, therefore, in exercise of the powers conferred bysub-section (I) of Section 4 of the said Act, the Collectorof Villupuram District hereby directs that the land, beacquired under the provisions of the said section". (Emphasis Added)11. It was after noticing this purpose found in the impugnednotification, the petitioner came forward to challenge thenotification. The learned counsel referred to the definition of''Harijan Welfare Scheme'' found in section 3(g) of T.N.Act 31 of1978, which is as follows:-''3(g) ''Harijan Welfare Scheme" means any scheme forprovision of house-sites for Harijans for constructing,extending or improving any dwelling-house for Harijans orfor providing any burial or burning grounds for Harijans orfor providing any pathway leading to such dwelling-house,burial or burning grounds, or for providing any otheramenity for the benefit of Harijans. 12. He also stated that the term ''Harijan'' found therein alsofurther defined under section 3(f), which is as follows:-''3(f) ''Harijans" means members of the Scheduled Castesand include Scheduled Tribes". Explanation. - (a) ''Scheduled Castes" means thecastes, races or tribes or parts of, or groups withincastes, races or tribes specified in the Constitution(Scheduled Castes) Order, 1950, made by the President underArticle 341 of the Constitution as amended by ScheduledCastes and Scheduled Tribes Order (Amendment) Act, 1976(Central Act 108 of 1976)."13. Therefore, in the light of the above definitions and thepurpose being repugnant to the provisions of the Act, he wanted thenotification to be quashed. The learned counsel also placed relianceupon the judgment of the Supreme Court in Soosai -vs- Union of Indiaand others reported in 1985 (Supp) SCC 590. He referred to thefollowing passage found in paragraph 5, which reads as follows:-''Para 5 : ... ... ... It is apparent that for thepurposes of the Constitution the constitutional provisionsrelating to Scheduled Castes are intended to be applied toonly those members of the castes enumerated in theConstitution (Scheduled Castes) Order, 1950 who profess theHindu or the Sikh religion. Clearly, if it can be https://hcservices.ecourts.gov.in/hcservices/ contemplated that a Christian belongs to one of thosecastes, he is barred by reason of para 3, from beingregarded as a member of a Scheduled Castes and is,therefore, not entitled to the benefit of theconstitutional provisions relating to Scheduled Castes.”(Emphasis Added)14. After referring to the above passage, he submitted that sinceChristian Converted Adidravidars are not included in terms ofparagraph 3 of the Presidential notification, the impugnednotification is clearly bad in law. He also relied upon the followingpassage found in paragraph 8 of Soosai's case (cited supra) tocontend that their non-inclusion in the Presidential order will notamount to a discrimination having the vice of Article 14 even thoughconverts to Jainist, Buddhist and Sikh religions are allowed to havethe benefit flowing under the notification"- ''Para 8 : ... ... ... It must be remembered that thedeclaration incorporated in para 3 deeming them to bemembers of the Scheduled Castes was a declaration made forthe purposes of the Constitution. It was a declarationenjoined by clause (1) of Article 341 of the Constitution.To establish that para 3 of the Constitution (ScheduledCastes) Order, 1950 discriminates against Christian membersof the enumerated castes it must be shown that they sufferfrom a comparable depth of social and economic disabilitiesand cultural and educational backwardness and similarlevels of degradation within the Christian communitynecessitating intervention by the State under theprovisions of the Constitution. It is not sufficient toshow that the same caste continues after conversion. It isnecessary to establish further that the disabilities andhandicaps suffered from such caste membership in the socialorder of its origin — Hinduism — continue in theiroppressive severity in the new environment of a differentreligious community. ... ... ... .......It is, therefore, not possible to say that the Presidentacted arbitrarily in the exercise of his judgment inenacting para 3 of the Constitution (Scheduled Castes)Order, 1950. It is now well established that when aviolation of Article 14 or any of its related provisions isalleged, the burden rests on the petitioner to establish byclear and cogent evidence that the State has been guilty ofarbitrary discrimination. Having regard to the State of therecord before us, we are unable to hold that the petitionerhas established his case.... ..." https://hcservices.ecourts.gov.in/hcservices/

15. The learned counsel also further placed reliance upon thejudgment of the Supreme Court in S.Swvigaradoss -vs- Zonal Manager,F.C.I. reported in (1996) 3 SCC 100. The following passage found inpara 8 is relevant and it may be usefully extracted below:-''Para 8. The Courts, therefore, have no power except togive effect to the notification issued by the President. Itis settled law that the Court would look into the publicnotification under Article 341(1) or Article 342(1) for alimited purpose. The notification issued by the Presidentand the Act of Parliament under Scheduled Castes andScheduled Tribes Order (Amendment) Act, 1976 and theSchedules appended thereto can be looked into for thepurpose to find whether the castes, races or tribes are(sic or) parts of or groups within castes, races or tribesshall be Scheduled Castes for the purposes of theConstitution. Under the Amendment Act, 1976, againParliament has included or excluded from schedules appendedto the Constitution which are now conclusive. Schedule Irelates to Scheduled Castes and Schedule II relates toScheduled Tribes. Christian is not a Scheduled Caste underthe notification issued by the President. In view of theadmitted position that the petitioner was born of Christianparents and his parents also were converted prior to hisbirth and no longer remained to be Adi-Dravida, a ScheduledCaste for the purpose of Tirunelveli District in Tamil Naduas notified by the President, petitioner cannot claim to bea Scheduled Caste. In the light of the constitutionalscheme civil court has no jurisdiction under Section 9 ofCPC to entertain the suit. The suit, therefore, is notmaintainable. The High Court, therefore, was right indismissing the suit as not maintainable and also not givingany declaration sought for''. (Emphasis Added)16. However, it must be stated that the Christian Adidravidarsare also suffering caste prejudices from not only the caste Hindu buteven from the converted Christians belonging to other castes. Theyare also no way different from the Adidravidars belonging to theHindu fold. The plight of such converted Adidravidar Christians cameto be noted by the Supreme Court in the judgment in Valsamma Paul(Mrs) -vs- Cochin University and others reported in (1996) 3 SCC545. A useful reference can be made to the following passage found inparagraph 35, which is as follows:- ''In South India, if a person converts from Hindu religionto other religion, the original caste, without violatingthe tenets of the new order to which he has gone, as amatter of common practice continues to exist from timeimmemorial. If a person abjures his old religion and https://hcservices.ecourts.gov.in/hcservices/ converts to a new one, there is no loss of caste. However,where the convertee exhibits by his actions and behaviourhis clear intention of abjuring the new religion on his ownvolition without any persuasion and is not motivated by anybenefits or gain; the community of the old order to whichthe convertee originally belonged, is gracious enough toadmit him to the original caste either expressly or bynecessary intendment; and rules of the new order permit theconvertee to join the new caste, on reconversion hisoriginal caste revives and he becomes a member of thatcaste. However, this Court had held that: (1984) 2 SCC 91at p.105, para 31)“In our opinion, the main test should be a genuineintention of the reconvert to abjure his newreligion and completely dissociate himself from it.We must hasten to add here that this does not meanthat the reconversion should be only a ruse or apretext or a cover to gain mundane worldly benefitsso that the reconversion becomes merely a show forachieving a particular purpose whereas the realintention may be shrouded in mystery. The reconvertmust exhibit a clear and genuine intention to goback to his old fold and adopt the customs andpractices of the said fold without any protest frommembers of his erstwhile caste.” In that case it was held that from his conduct, therespondent established that she by her conduct became amember of the community entitled to contest the electionsas a Scheduled Caste. In Mohan Rao case (1976) 3 SCC 411)this Court found as a fact that after conversion he wasaccepted as a member of the Dalits by the community.Similar are the facts in Horo case (1972) 1 SCC 771. InC.M. Arumugam v. S. Rajgopal (1976) 1 SCC 863) this Courtdid not accept reconversion, though Rajgopal proclaimed byconduct of his becoming a member of Scheduled Castes andhis relations treated him as a member of Dalits. In Horocase also the respondent was recognised as a member of theScheduled Tribe. Further in election law the compulsion ofpolitical party nominating a candidate and voters’ verdictmay be looked into. In Soosai v. Union of India (AIR 1986SC 733) Bhagwati, C.J. speaking for a three-Judge Benchheld that non-recognition of Scheduled Caste Christians asDalits was not violative of Article 14 as by reason ofconversion they were not similarly handicapped as Dalits.In Madhuri case (1994) 6 SCC 241 and Laveti Giri case(1995) 4 SCC 32, this Court directed procedure for issuanceof social status certificates. As a part of it, the officerconcerned should also verify, as a fact, whether a converthas totally abjured his old faith and adopted, as a fact, https://hcservices.ecourts.gov.in/hcservices/ the new faith; whether he suffered all the handicaps as aDalit or Tribe; whether conversion is only a ruse to gainconstitutional benefits under Article 15(4) or 16(4); andwhether the community has in fact recognised his conversionand treated him as a member of the community and then issuesuch a certificate". 17. In fact, recently a Division Bench of this Court inProf.I.Elangovan -vs- State of Tamil Nadu represented by the ChiefSecretary reported in (2007) 3 MLJ 209 dealt with the scope ofSwvigaradoss case (cited supra). Speaking for the Bench,S.J.Mukhopadhaya, J. held that the State must follow not only theprinciple in Swvigaradoss case but also other larger bench judgmentsin Guntur Medical College, Guntur -vs- Y.Mohan Rao reported in AIR1976 SC 1904 and C.M.Arumugam -vs- S.Rajagopal and others reported inAIR 1976 SC 939. The following passage found in para 12 may beusefully extracted below:-''12. We are not inclined to accept such submission. Firstof all, judicial propriety do not allow this Court to makeany observation with regard to the judgment rendered by theSupreme Court, irrespective of number of Judges,who decideit. The decision is binding on parties; the ratio and thelaw laid by Supreme Court is binding on all the Courts. Infact, we find that in different situations, taking intoconsideration the relevant facts, findings have been givenby the Supreme Court. In the case of Guntur MedicalCollege, Guntur and others -vs- Y.Mohan Rao (supra), theSupreme Court, while observed that ''there is no absoluterule applicable in all cases that whenever a member of acaste is converted from Hinduism to Christianity, he loseshis membership of the caste." Having noticed the decisionin the case of C.M.Arumugam -vs- S.Rajagopal and others(supra), the Constitution Bench observed that ''ordinarilyit is true that on conversion to Christianity, a personwould cease to be a member of the caste to which hebelongs, but that is not an invariable rule. It woulddepend on the structure of the caste and its rules andregulations".(Emphasis supplied)18. In that view of the matter, a direction was given to theState Government to formulate its policy in granting CasteCertificates to reconverted Adidravidar Christians as ScheduledCastes based upon the Swvigaradoss case as well as the earlierlarger bench judgments in Guntur Medical College case and Arumugam'scase. 19. In the present case, no doubt Section 4(2) notice issued to https://hcservices.ecourts.gov.in/hcservices/ the petitioner did not mention the purpose as one of providing housesites to Christian Adidravidars. But in the final notification, thepurpose has been mentioned as providing house sites to ChristianAdidravidars. In order to verity about the nature of thebeneficiaries, this Court directed the second respondent to furnish alist of beneficiaries for whom pattas were granted. Accordingly, thesecond respondent by a letter dated 10.11.2008 furnished a list of 37beneficiaries for whom pattas have been granted from the landsacquired from the petitioner. The names of 37 beneficiaries tallieswith the averments made in the counter affidavit in paragraphs 2 and5 extracted above. Therefore, the stand of the petitioner that theacquisition was made for the Christian Adidravidars is unassailableand for that purpose the provisions of Act 31 of 1978 ought not havebeen invoked.20. The Tamil Nadu Act 31 of 1978 is intended to acquire landonly for Harijan Welfare Schemes and the definition of Harijan is aslisted in the Presidential notification issued under Article 341 ofthe Constitution. The Christian Adidravidars stood excluded from thelist of castes contained in the Presidential notification. Theexclusion of Christian Adidravidars from the list of Scheduled Casteswas also held to be not unconstitutional by the Supreme Court inSoosai's case (cited supra). But it must be pointed out that the veryissue has again taken up and being heard by a larger bench of theSupreme Court. It is yet to decide the validity or otherwise of theexclusion of the Christian Converted Adidravidars from availing thebenefits provided under Article 46 of the Constitution.21. The petitioner contended that the lands acquired have notbeen used. Also he has filed an affidavit to that effect and has alsoproduced certain photographs to show that the lands have not beenutilised so far. But the photograph produced by the petitionerclearly shows that the lands are not being used for any agriculturalpurpose. In the surrounding land already buildings have startedcoming up which will show that it is not going to be used for anyagricultural purpose. 22. Since the respondents wanted to utilise the land forproviding house sites for Adidravidar people of that village who areconverted to Christianity, this Court suggested to the learnedcounsel for the petitioner to find out whether his client wasinclined to negotiate with the District Collector to settle thecompensation issue since the land has been used for a public purposethough not prescribed under the State Act. He was also informed thateven if the acquisition under the State Act has been nullified, stillthe State can resort to acquisition under the Central Act 1 of 1894since the bonafides of the public purpose is not disputed. But afterinstructions from his client, the learned counsel for the petitionerinformed this Court that his client is not willing to settle thematter through any private negotiation. https://hcservices.ecourts.gov.in/hcservices/

23. In this connection, it is necessary to refer to the judgmentof the Supreme Court in Ramniklal N.Bhutta and another -vs- State ofMaharashtra and others reported in (1997) 1 SCC 134 and in para 10,it is observed as follows:-'' 10. Whatever may have been the practices in the past, atime has come where the courts should keep the largerpublic interest in mind while exercising their power ofgranting stay/injunction. The power under Article 226 isdiscretionary. It will be exercised only in furtherance ofinterests of justice and not merely on the making out of alegal point. And in the matter of land acquisition forpublic purposes, the interests of justice and the publicinterest coalesce. They are very often one and the same.Even in a civil suit, granting of injunction or othersimilar orders, more particularly of an interlocutorynature, is equally discretionary. The courts have to weighthe public interest vis-à-vis the private interest whileexercising the power under Article 226—indeed any of theirdiscretionary powers. It may even be open to the High Courtto direct, in case it finds finally that the acquisitionwas vitiated on account of non-compliance with some legalrequirement that the person interested shall also beentitled to a particular amount of damages to be awarded asa lump sum or calculated at a certain percentage ofcompensation payable. There are many ways of affordingappropriate relief and redressing a wrong; quashing theacquisition proceedings is not the only mode of redress. Towit, it is ultimately a matter of balancing the competinginterests. Beyond this, it is neither possible noradvisable to say. We hope and trust that theseconsiderations will be duly borne in mind by the courtswhile dealing with challenges to acquisition proceedings.” (Emphasis Added)24. This reasoning came to be once again referred and followed bya recent decision of the Supreme Court in M/s.Girias InvestmentPvt.Ltd. And another -vs- State of Karnataka and others reported in(2008) 7 SCC 53. In paragraph 20, it was observed as follows:- ''We are also not unmindful of the fact that though therights of an individual whose property is sought to beacquired must be scrupulously respected, an acquisition forthe benefit of the public at large is not to be lightlyquashed and extraordinary reasons must exist for doingso''. 25. Therefore, this Court is not inclined only to set aside theacquisition made under Tamil Nadu Act 31 of 1978 and leave the https://hcservices.ecourts.gov.in/hcservices/ matters at that. It is just and necessary to give further directionsto the second respondent District Collector and the third respondentState of Tamil Nadu. While the acquisition under the Tamil Nadu Act31 of 1978 will stand set aside, this will not preclude therespondents from resorting to the acquisition under the Central Act 1of 1894 for providing house sites to Christian Adidravidars of theThamanur Village by taking appropriate steps for issuing a propernotification and proceed to acquire the lands for the purpose ofdistributing them to the 37 beneficiaries already identified by therespondents.26. The respondents, if so desired, shall take steps to issuenotification within a period of twelve weeks from the date of receiptof a copy of this order. Till such time, status quo regardingpossession of the land will continue. The writ petition standsdisposed of accordingly. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjsTo1.The Special Tahsildar,Land Acquisition, Adi Dravidar Welfare Scheme,Gingee.2.The Collector of Villupuram District,Villupuram.3.The Secretary to Government, Adi Dravidar Welfare Department, Fort St.George,Chennai-600 009.4.The District Adi Dravidar WelfareOfficer, Villupuram.1 cc To The Government Pleader, SR.No.6651 cc To Mr.M.Devendaran, Advocate, SR.455W.P.No.4997 of 1999 PA(CO)SRA(20/01/2009)