WP/3323/1999 of GURUSAMY GOUNDER Vs STATEOF T.N., REP BY ITS on 17 December 2002

:ORDER

1. The writ petitioner, owner of survey No.897/2 Part, measuring 0.28 .5Hectares in Anthiyur Village, Bhavani Taluk, Erode District, has prayed forthe issue of a writ of certiorari to call for and quash the notice issued bythe 3rd respondent, Special Deputy Tahsildar, Adi Dravidar Welfare, Erode inhis office Ref. No.3201/98 A dated 21.1.99 issued in Form No.I.2. The 3rd respondent issued a notice under Section 4 (2) of The Tamil NaduAcquisition 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 mentionedlands situate in Anthiyur Village, Bhavani Taluksetting out that the lands arenecessary to be acquired for the purpose of providing burial ground and pathway to proposed burial ground to the Samathuvapuram families of AnthiyurVillage. On the service of the said notice, the present writ petition hasbeen filed praying for the issue of a writ of certiorari, as according to thepetitioner no acquisition of land could be undertaken under The Tamil NaduAcquisition of Land for Harijan Welfare Schemes Act, 1978, for the schemeswhich are not provided under the Act and the action of the 3rd respondent iswithout jurisdiction. The requirement of land being for the purpose of burialground and pathway for Samathuvapuram, the lands cannot be acquired under theTamil Nadu Act and proposal to acquire lands under The Tamil Nadu Acquisitionof Land for Harijan Welfare Schemes Act, 1978, is beyond the scope of the Actand such acquisition is without authority of law.

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

4. The substantial contention that arise for consideration in this writpetition being :- "Whether the lands could be acquired under The Tamil Nadu Acquisition of Landfor Harijan Welfare Schemes Act, 1978, for provision of burial ground andpathway to the residents' of Samathuvapuram ?"

5. Mr. R.Shanmugam, learned senior counsel contended that acquisition for the residents' of Samathuvapuram will not fall under the Harijan WelfareScheme as defined under Section 3 (g), as Scheduled Caste/ Scheduled Tribe arenot the exclusive residents' of Samathuvapuram but majority residents belongto other castes. Acquisition, if any, under the Tamil Nadu Act, 1978, couldbe for Scheduled Caste of Scheduled Tribe. Such acquisition could beundertaken only if it is for the exclusive user of Scheduled Caste ofScheduled Tribe and not for persons other than Scheduled Caste of ScheduledTribe.

6. The concept of formation of Samathuvapuram at fifty places in the Statewas sanctioned by the State Government by G.O. (Permanent) No.1 71, AdiDravidar & Tribal Welfare Department, dated 22.10.97 on the eve of the 50thIndependence Day Celebrations with the object of providing house sites to allwithout any discrimination. In terms of the said G.O., Samathuvapuram shouldat least provide for 100 houses of five cents of land each and lands will beallotted to Scheduled Caste of Scheduled Tribe, Backward Classes, MostBackward Classes and Other Communities freely and each one of them is grantedRs.35,000/= to put up construction. The G.O. provides for provision ofroads, water facilities, electricity facility, street lighting at the cost ofthe Government, besides overhead tank, shop for Public Distribution System,Television, Park and other facilities common to all as well as an elementaryschool. The object being irrespective of the caste or creed, the 100 familiesshould live together as equals and as homogeneous society. Allotment alsoshould be made for various communities not under one category, but it shouldbe seen that the allotments are made at random so that everyone gets mixed andlive together. While allotting plots and houses, 40% has to be allotted toAdi Dravidars, 25 % to Backward classes and 25% to Most Backward classes and10% to all others.

7. 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 theremaining 60 out of 100 families belong to castes other than Scheduled Casteof Scheduled Tribe. The object of the scheme Samathuvapuram is for a homogeneous living of various communities, regardless of caste or religion orcreed so that they live together.

8. 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 ofwhich only 40% are members of Scheduled Caste of Scheduled Tribe. This factis not in dispute.

9. In terms of the impugned notice issued under Form I, the acquisitionprovides for a burial ground and pathway to the burial ground to the familiesresiding at Samathuvapuram. The Samathuvapuram families include 40% ofScheduled Caste of Scheduled Tribe and 60% other than Scheduled Caste ofScheduled Tribe. To consider the legal contention advanced, it is essentialto refer to the provisions of The Tamil Nadu Acquisition of Land for HarijanWelfare Schemes Act, 1978.

10. Section 2 of the Act declares that the Act is for giving effect to thepolicy of the State towards principles laid down in Part IV and in particularArticle 46 of The Constitution. Section 3 (g) defines the expression "HarijanWelfare Scheme" and the definition reads thus :-

"3 (g) "Harijan Welfare Scheme" means any scheme for provision of house-sitesfor Harijans for constructing, extending or improving any dwelling-house forHarijans or for providing any burial or burning grounds for Harijans or forproviding any pathway leading to such dwelling-house, burial or burninggrounds, or for providing any other amenity for the benefit of Harijans."11. In terms of Section 4, for the purpose of Harijan Welfare Schemes, if theland is required to be acquired, the District Collector may acquire. The landcould be acquired under the Act for the purpose of any Harijan Welfare Scheme,such as provision of house sites for harijans, for constructing, extending orimproving any dwelling house for harijan or for providing any burial orburning grounds for harijans or for providing any pathway leading to suchdwelling houses, burial or burning grounds or for providing such other amenityfor the benefit of harijans. No other beneficial proposal or object will fallunder this scheme. The object of such a scheme is to benefit the harijans.12. The expression "Harijan" has been defined under Section 3 (f). Harijanmeans "members of Scheduled Caste of Scheduled Tribe" and the explanation tothe said definition further provides as to what is the meaning of ScheduledCaste of Scheduled Tribe. Section 3 (f) reads thus :- ""Harijans" means members of the Scheduled Castes and include ScheduledTribes."

13. A reading of the said definition, with the definition Harijan WelfareScheme would mean the acquisition exclusively for harijans and there could beno acquisition for the beneficiaries, who are other than harijans. The objectof Samathuvapuram scheme may be laudable.

14. 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 forthe purpose specified in sub-section (1) of Section 4 and acquisition shall beundertaken only in accordance with the provisions of this enactment. Section21 provides that the provisions of the Act shall have overriding effect.Section 22 provides that the provisions of Act shall apply also to any actionor cause in which proceedings have been started before the commencement of theAct for the acquisition of any land for harijan welfare scheme under The LandAcquisition Act.

15. On a conjoint reading of the above provisions, it is clear thatacquisition under the said Act, if any, could be undertaken for harijanwelfare schemes and for the benefit of harijans exclusively. The expressionwhich includes Scheduled Caste of Scheduled Tribe has also been defined. Theexpression Scheduled Caste of Scheduled Tribe has the same meaning as in TheConstitution of Scheduled Caste Order, 1950 and The Constitution of ScheduledTribe Order, 1950.

16. Therefore, even if a portion of the beneficiaries or fraction of thebeneficiaries are not harijans, no acquisition could be undertaken under theAct and acquisition, if any, has to be undertaken only under The LandAcquisition (Central) Act. The enactment being exproprietary in nature, whichprovides for compulsory acquisition, has to be construed strictly as itdeprives the valuable rights of owners of any lands or buildings as definedunder the Act. As already pointed out, in each Samathuvapuram, the harijansform only 40% and remaining occupants being other than harijans. It is notthe case of the respondents that a separate burial ground is provided for theharijans living in Samathuvapuram, while admittedly the harijans and otherslive together as neighbours and as a homogeneous society.

17. The right to economic justice to members of Scheduled Caste of ScheduledTribe or other Backward classes is a fundamental right as held in PAPIAH VS.STATE OF KARNATAKA & OTHERS reported in 1996 (10) SCC 533. Article 46 of TheConstitution, in terms of its preamble enjoins upon the State to provideeconomic justice to the Scheduled Caste of Scheduled Tribe and other weakersections of the society and to prevent their exploitation. The right toeconomic justice is a fundamental right to secure equality of status,opportunity and liberty.

18. Therefore, it is clear and obvious that the object of formation of eachSamathuvapuram for 100 families being they should reside together inSamathuvapuram without difference or discrimination.

19. Any deviation to provide or attempt to provide a separate burial groundto Harijan residents' of Samathuvapuram will defeat the very object ofSamathuvapuram as formulated by the Government. That apart, it is not thecase of the respondents that a separate burial ground is being provided forharijans alone, but the land is sought to be acquired for the provision ofburial ground to all the 100 occupants/ residents of Samathuvapuram, whichincludes not only 40% of the harijan families, but also 60% of castes otherthan harijans.

20. The validity of Tamil Nadu Acquisition of Lands for Harijan WelfareSchemes Act was the subject matter of consideration in STATE OF TAMIL NADU VS.ANANTHI AMMAL reported in 1995 (1) SCC 519. The Apex Court held that theprovisions of the Act is intra vires to Article 14 except sub-section (1) ofSection 11.

21. As already pointed out, the very enactment itself as declared underSection 2 is for giving effect to the policy of State towards securing thedirective principles and in particular Article 46. Article 46 of TheConstitution directed that the State shall promote with special care theeducational and economic care of the weaker section of the people and inparticular Scheduled Caste of Scheduled Tribe. It is a special legislationfor providing house sites or improving the house sites, providing dwellinghouses for harijans or providing for burial or burning grounds or pathway forthe benefit of harijans. It is an exclusive legislation and special enactment

enacted by the State Legislature exclusively for the benefit of harijans.22. This legislation is a class by itself and the intendment of thelegislation is to provide the benefits under such scheme only to harijans andnot for the benefit of any persons other than harijans. The expressionharijans include only Scheduled Caste of Scheduled Tribe, which in turn meansonly tribes as specified in the Constitution of Scheduled Caste Order and theConstitution of Scheduled Tribe Order respectively. No other persons could betreated as a Scheduled Caste of Scheduled Tribe. Therefore, there could be noacquisition for providing any kind of benefit under the Harijan Welfare Schemewhatsoever other than the harijans.

23. Section 3 (f) of The Land Acquisition (Central) Act defines theexpression 'Public Purpose'. Clause 5 includes the provision of land forresidential purpose to the poor or landless or persons residing in areasaffected by natural calamities or displaced persons. Therefore, acquisition,if any, for the benefit of persons other than harijan residents ofSamathuvapuram could be undertaken only under the Central Act and not underthe Tamil Nadu Act 36 of 1978.

24. For the formation of Samathuvapuram, the acquisition, if any, has to beundertaken only under the Central Act. Acquisition is not permissible underthe Tamil Nadu Act 31 of 1978 for formation of Samathuvapuram as it is not a"Harijan Welfare Scheme" as contemplated therein. Viewed from yet anotherangle, by provision of burial ground to Harijan residents of Samathuvapuramalone will result in disintegration among its residents and resultantly defeatthe very object and purpose with which Samathuvapurams were promoted in theState.

25. Thus in any view of the matter, there could be no acquisition forproviding burial ground and pathway for the residents' of Samathuvapuram, whoform a homogeneous society of Scheduled Caste or Scheduled Tribe or MostBackward class or Backward class and Other Communities. The issue of noticein Form I and proposal to acquire under the State Act and further proceedings,if any, is illegal, impermissible and is without jurisdiction.

26. In the result, the impugned notice is quashed and the writ petition isallowed as prayed for. Parties shall bear their respective costs.Consequently, connected writ miscellaneous petition is closed.

17.12.20002Index : YesInternet : YesGLN

To1. The CommissionerGovernment of Tamil NaduSocial Welfare DepartmentChennai 9.

2. The District collectorErode District, Erode.