Gurusamy Gounder vs State of Tamil Nadu and The Special Tahsildar, Adi Dravidar Welfare

E. Padmanabhan, J.—The writ petitioner, owner of survey No.897/2 Part, measuring 0.28.5 Hectares in Anthiyur Village, Bhavani Taluk,

Erode District, has prayed for the issue of a writ of certiorari to call for and quash the notice issued by the 3rd respondent, Special Deputy

Tahsildar, Adi Dravidar Welfare, Erode in his office Ref. No.3201/98 A dated 21.1.99 issued in Form No.I.

The 3rd respondent issued a notice u/s 4 (2) of The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 read with Rule 3

(1) of The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979. The 3rd respondent issued Form I notice in respect of the

schedule mentioned lands situate in Anthiyur Village, Bhavani Taluksetting out that the lands are necessary to be acquired for the purpose of

providing burial ground and pathway to proposed burial ground to the Samathuvapuram families of Anthiyur Village. On the service of the said

notice, the present writ petition has been filed praying for the issue of a writ of certiorari, as according to the petitioner no acquisition of land could

be undertaken under The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, for the schemes which are not provided under

the Act and the action of the 3rd respondent is without jurisdiction. The requirement of land being for the purpose of burial ground and pathway for

Samathuvapuram, the lands cannot be acquired under the Tamil Nadu Act and proposal to acquire lands under The Tamil Nadu Acquisition of

Land for Harijan Welfare Schemes Act, 1978, is beyond the scope of the Act and such acquisition is without authority of law.

Heard Mr.R.Shanmugam, learned senior counsel appearing for Mr.S.Ravi, for the petitioner and Mr.S.Gomathinayagam, learned Special

Government Pleader appearing for the respondents.

The substantial contention that arise for consideration in this writ petition being :-

Whether the lands could be acquired under The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, for provision of burial

ground and pathway to the residents'' of Samathuvapuram ?

Mr. R.Shanmugam, learned senior counsel contended that acquisition for the residents'' of Samathuvapuram will not fall under the Harijan

Welfare Scheme as defined u/s 3 (g), as Scheduled Caste/Scheduled Tribe are not the exclusive residents'' of Samathuvapuram but majority

residents belong to other castes. Acquisition, if any, under the Tamil Nadu Act, 1978, could be for Scheduled Caste of Scheduled Tribe. Such

acquisition could be undertaken only if it is for the exclusive user of Scheduled Caste of Scheduled Tribe and not for persons other than Scheduled

Caste of Scheduled Tribe.

The concept of formation of Samathuvapuram at fifty places in the State was sanctioned by the State Government by G.O. (Permanent)

No.171, Adi Dravidar & Tribal Welfare Department, dated 22.10.97 on the eve of the 50th Independence Day Celebrations with the object of

providing house sites to all without any discrimination. In terms of the said G.O., Samathuvapuram should at least provide for 100 houses of five

cents of land each and lands will be allotted to Scheduled Caste of Scheduled Tribe, Backward Classes, Most Backward Classes and Other

Communities freely and each one of them is granted Rs.35,000/= to put up construction. The G.O. provides for provision of roads, water facilities,

electricity facility, street lighting at the cost of the Government, besides overhead tank, shop for Public Distribution System, Television, Park and

other facilities common to all as well as an elementary school. The object being irrespective of the caste or creed, the 100 families should live

together as equals and as homogeneous society. Allotment also should be made for various communities not under one category, but it should be

seen that the allotments are made at random so that everyone gets mixed and live together. While allotting plots and houses, 40% has to be allotted

to Adi Dravidars, 25% to Backward classes and 25% to Most Backward classes and 10% to all others.

Therefore, it is clear that only 40 out of 100 of the house/families of Samathuvapuram are members of Scheduled Caste of Scheduled Tribe and

the remaining 60 out of 100 families belong to castes other than Scheduled Caste of Scheduled Tribe. The object of the scheme Samathuvapuram

is for a homogeneous living of various communities, regardless of caste or religion or creed so that they live together.

The said G.O. also provides that lands could be acquired, if necessary, for provision of 100 house sites of five cents each to each of the 100

residents'' of Samathuvapuram, who belong to cross-section of the society of which only 40% are members of Scheduled Caste of Scheduled

Tribe. This fact is not in dispute.

In terms of the impugned notice issued under Form I, the acquisition provides for a burial ground and pathway to the burial ground to the

families residing at Samathuvapuram. The Samathuvapuram families include 40% of Scheduled Caste of Scheduled Tribe and 60% other than

Scheduled Caste of Scheduled Tribe. To consider the legal contention advanced, it is essential to refer to the provisions of The Tamil Nadu

Acquisition of Land for Harijan Welfare Schemes Act, 1978.

Section 2 of the Act declares that the Act is for giving effect to the policy of the State towards principles laid down in Part IV and in particular

Article 46 of The Constitution. Section 3 (g) defines the expression ""Harijan Welfare Scheme"" and the definition reads thus :-

3 (g) ""Harijan Welfare Scheme"" means any scheme for provision of house-sites for Harijans for constructing, extending or improving any dwelling-

house for Harijans or for providing any burial or burning grounds for Harijans or for providing any pathway leading to such dwelling-house, burial

or burning grounds, or for providing any other amenity for the benefit of Harijans.

In terms of Section 4, for the purpose of Harijan Welfare Schemes, if the land is required to be acquired, the District Collector may acquire.

The land could be acquired under the Act for the purpose of any Harijan Welfare Scheme, such as provision of house sites for harijans, for

constructing, extending or improving any dwelling house for harijan or for providing any burial or burning grounds for harijans or for providing any

pathway leading to such dwelling houses, burial or burning grounds or for providing such other amenity for the benefit of harijans. No other

beneficial proposal or object will fall under this scheme. The object of such a scheme is to benefit the harijans.

The expression ""Harijan"" has been defined u/s 3 (f). Harijan means ""members of Scheduled Caste of Scheduled Tribe"" and the explanation to

the said definition further provides as to what is the meaning of Scheduled Caste of Scheduled Tribe. Section 3 (f) reads thus :-

Harijans"" means members of the Scheduled Castes and include Scheduled Tribes.

A reading of the said definition, with the definition Harijan Welfare Scheme would mean the acquisition exclusively for harijans and there could

be no acquisition for the beneficiaries, who are other than harijans. The object of Samathuvapuram scheme may be laudable.

Section 20 of the Act provides that the provisions of The Land Acquisition Act, 1894, shall cease to apply to any land, which is required for

the purpose specified in sub-section (1) of Section 4 and acquisition shall be undertaken only in accordance with the provisions of this enactment.

Section 21 provides that the provisions of the Act shall have overriding effect. Section 22 provides that the provisions of Act shall apply also to

any action or cause in which proceedings have been started before the commencement of the Act for the acquisition of any land for harijan welfare

scheme under The Land Acquisition Act.

On a conjoint reading of the above provisions, it is clear that acquisition under the said Act, if any, could be undertaken for harijan welfare

schemes and for the benefit of harijans exclusively. The expression which includes Scheduled Caste of Scheduled Tribe has also been defined. The

expression Scheduled Caste of Scheduled Tribe has the same meaning as in The Constitution of Scheduled Caste Order, 1950 and The

Constitution of Scheduled Tribe Order, 1950.

Therefore, even if a portion of the beneficiaries or fraction of the beneficiaries are not harijans, no acquisition could be undertaken under the

Act and acquisition, if any, has to be undertaken only under The Land Acquisition (Central) Act. The enactment being ex-proprietary in nature,

which provides for compulsory acquisition, has to be construed strictly as it deprives the valuable rights of owners of any lands or buildings as

defined under the Act. As already pointed out, in each Samathuvapuram, the harijans form only 40% and remaining occupants being other than

harijans. It is not the case of the respondents that a separate burial ground is provided for the harijans living in Samathuvapuram, while admittedly

the harijans and others live together as neighbours and as a homogeneous society.

The right to economic justice to members of Scheduled Caste of Scheduled Tribe or other Backward classes is a fundamental right as held in

Papaiah Vs. State of Karnataka and others, . Article 46 of The Constitution, in terms of its preamble enjoins upon the State to provide economic

justice to the Scheduled Caste of Scheduled Tribe and other weaker sections of the society and to prevent their exploitation. The right to economic

justice is a fundamental right to secure equality of status, opportunity and liberty.

Therefore, it is clear and obvious that the object of formation of each Samathuvapuram for 100 families being they should reside together in

Samathuvapuram without difference or discrimination.

Any deviation to provide or attempt to provide a separate burial ground to Harijan residents'' of Samathuvapuram will defeat the very object of

Samathuvapuram as formulated by the Government. That apart, it is not the case of the respondents that a separate burial ground is being provided

for harijans alone, but the land is sought to be acquired for the provision of burial ground to all the 100 occupants/residents of Samathuvapuram,

which includes not only 40% of the harijan families, but also 60% of castes other than harijans.

The validity of Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act was the subject matter of consideration in State of Tamil

Nadu and Others Vs. Ananthi Ammal and Others, . The Apex Court held that the provisions of the Act is intra vires to Article 14 except sub-

section (1) of Section 11.

As already pointed out, the very enactment itself as declared u/s 2 is for giving effect to the policy of State towards securing the directive

principles and in particular Article 46. Article 46 of The Constitution directed that the State shall promote with special care the educational and

economic care of the weaker section of the people and in particular Scheduled Caste of Scheduled Tribe. It is a special legislation for providing

house sites or improving the house sites, providing dwelling houses for harijans or providing for burial or burning grounds or pathway for the benefit

of harijans. It is an exclusive legislation and special enactment enacted by the State Legislature exclusively for the benefit of harijans.

This legislation is a class by itself and the intendment of the legislation is to provide the benefits under such scheme only to harijans and not for

the benefit of any persons other than harijans. The expression harijans include only Scheduled Caste of Scheduled Tribe, which in turn means only

tribes as specified in the Constitution of Scheduled Caste Order and the Constitution of Scheduled Tribe Order respectively. No other persons

could be treated as a Scheduled Caste of Scheduled Tribe. Therefore, there could be no acquisition for providing any kind of benefit under the

Harijan Welfare Scheme whatsoever other than the harijans.

Section 3(f) of The Land Acquisition (Central) Act defines the expression ''Public Purpose''. Clause 5 includes the provision of land for

residential purpose to the poor or landless or persons residing in areas affected by natural calamities or displaced persons. Therefore, acquisition, if

any, for the benefit of persons other than harijan residents of Samathuvapuram could be undertaken only under the Central Act and not under the

Tamil Nadu Act 36 of 1978.

For the formation of Samathuvapuram, the acquisition, if any, has to be undertaken only under the Central Act. Acquisition is not permissible

under the Tamil Nadu Act 31 of 1978 for formation of Samathuvapuram as it is not a ""Harijan Welfare Scheme"" as contemplated therein. Viewed

from yet another angle, by provision of burial ground to Harijan residents of Samathuvapuram alone will result in disintegration among its residents

and resultantly defeat the very object and purpose with which Samathuvapurams were promoted in the State.

Thus in any view of the matter, there could be no acquisition for providing burial ground and pathway for the residents'' of Samathuvapuram,

who form a homogeneous society of Scheduled Caste or Scheduled Tribe or Most Backward class or Backward class and Other Communities.

The issue of notice in Form I and proposal to acquire under the State Act and further proceedings, if any, is illegal, impermissible and is without

jurisdiction.

In the result, the impugned notice is quashed and the writ petition is allowed as prayed for. Parties shall bear their respective costs.

Consequently, connected writ miscellaneous petition is closed.