Heard both sides and perused the records filed in this case.
2. The original petitioner, aggrieved by the acquisition of his land in Survey Nos.31/10 and 31/13 situated at Thamanur Village, Gingee Taluk, Villupuram District under the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (for short 'T.N.Act 31 of 1978'), has filed the present writ petition. Subsequently, as he had passed away, his legal heirs have come on record as petitioners 2 and 3.
3. The writ petition was admitted by this Court on 25.3.1999. An interim order against dispossession of the lands from the petitioner was also granted. The interim order came to be made absolute on 28.8.2003. A counter affidavit has also been filed by the first respondent justifying the acquisition of the lands for the purpose of providing house sites to the beneficiaries, who belong to the Christian Adidravidar Community of that village.
4. The first respondent being the prescribed authority initiated proposals for the acquisition of lands for the Harijan Welfare Scheme and the notice dated 27.10.1998 under Section 4(2) was issued and served on the owner of the lands. The original owner received the notice. An enquiry was conducted on 13.11.1998. The land owner sent his objection dated 09.10.1998 by post to the officer concerned.
5. The objection given by the owner was considered by the authority concerned. He sent his proposal to the District Collector. The District Collector rejected the objections given by the land owner by his order dated 08.1.1999. Thereafter, a notification under Section 4(1) was published in the District Government Gazette on 28.1.1999. An Award has been passed and the compensation amount has been deposited into the Court. Pattas were also granted to 37 beneficiary families.
6. The only contention raised by the petitioner was that under the T.N.Act 31 of 1978, lands can be acquired only for Harijan Welfare Schemes. The term ''Harijan Welfare Scheme" is defined under Section 3(g) of the Act and the term 'Harijan' is also defined under Section 3(f) of the Act. Inasmuch as Christian Adidravidar is not covered by the Presidential notification issued under
Article 341 of the Constitution, the acquisition made by the respondents are per se illegal and without jurisdiction.
7. Before the issues can be decided, it must be stated that this matter was filed at the time when a Full Bench of this Court was called upon to decide conflicting judgments of this Court on the procedure involved under T.N. Act 31 of 1978. P.K.Misra, J., speaking for the Full Bench rendered its opinion on 25.8.2006. It has been since reported in 2006 (4) CTC 609 (R.Pari -vs- The Special Tahsildar (ADW), Devakottai and another). The Full Bench thereafter directed the individual Writ Petitions to be decided on their merits and in accordance with the direction of the Full Bench. Thus, the connected matters came to be grouped together and were posted before this Court on being specially ordered by the Honourable Chief Justice.
8. In the counter affidavit dated 07.7.2000 filed by the first respondent, in paragraphs 2 and 5, the following averments have been made:-
''2. I submit that the Land Acquisition proceedings to acquire 0.87.0 Hectares of Dry Land was initiated at Dhamanur Village, Gingee Taluk to provide house site to the ailing houseless converted Christian from Adidravidars of Dhamanur Village.... ... ... ...
''5) There were 37 Adidravidar Christian families without any house site for those families only, the lands have been acquired. Land Acquisition process initiated with due care, only after considering all those things and after taking census of houseless persons."
(Emphasis Added)
9. The Form II Notice issued to the petitioner only stated that it is meant for providing house sites to Adidravidars of the Thamanur Village. The petitioner objected to the acquisition only the ground that there is no requirement for acquisition of the land as the Adidravidars in that village are having sufficient house sites. Some of them are also having patta lands. Further, there are also other available lands in that village. These objections were overruled by the District Collector by his order dated 08.1.1999. It is only in that rejection order, the District Collector had mentioned that the lands were acquired for the purpose of providing house sites to Christian Adidravidars of the village.
10. The notification published under section 4(1) in the Villupuram District Gazette dated 28.1.1999 contains the purpose for acquisition, which may be extracted below:-
''Whereas it appears to the Government of Tamil Nadu that the land specified in the schedule below and situated in the Thamanur Village, Gingee Taluk, Villupuram District are needed for the purpose of Harijan Welfare Schemes for providing house-site to the converted Christian Adidravidars of Thamanur Village, Gingee Taluk,Villupuram District. Notice to that effect is hereby given to whom it may concern in accordance with the provision of sub-section (1) of section 4 of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978 (TamilNadu Act 31of 1978).
And whereas it has become necessary to acquire immediate possession of the lands specified in the schedule below.
Now, therefore, in exercise of the powers conferred by sub-section (I) of Section 4 of the said Act, the Collector of Villupuram District hereby directs that the land, be acquired under the provisions of the said section".
(Emphasis Added)
11. It was after noticing this purpose found in the impugned notification, the petitioner came forward to challenge the notification. The learned counsel referred to the definition of ''Harijan Welfare Scheme'' found in section 3(g) of T.N.Act 31 of 1978, which is as follows:-
''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.
12. He also stated that the term ''Harijan'' found therein also further defined under section 3(f), which is as follows:-
''3(f) ''Harijans" means members of the Scheduled Castes and include Scheduled Tribes".
Explanation. - (a) ''Scheduled Castes" means the castes, races or tribes or parts of, or groups within castes, races or tribes specified in the Constitution (Scheduled Castes) Order, 1950, made by the President under
Article 341 of the Constitution as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (Central Act 108 of 1976)."
13. Therefore, in the light of the above definitions and the purpose being repugnant to the provisions of the Act, he wanted the notification to be quashed. The learned counsel also placed reliance upon the judgment of the Supreme Court in Soosai -vs- Union of India and others reported in 1985 (Supp) SCC 590. He referred to the following passage found in paragraph 5, which reads as follows:-
''Para 5 : ... ... ... It is apparent that for the purposes of the Constitution the constitutional provisions relating to Scheduled Castes are intended to be applied to only those members of the castes enumerated in the Constitution (Scheduled Castes) Order, 1950 who profess the Hindu or the Sikh religion. Clearly, if it can be contemplated that a Christian belongs to one of those castes, he is barred by reason of para 3, from being regarded as a member of a Scheduled Castes and is, therefore, not entitled to the benefit of the constitutional provisions relating to Scheduled Castes. (Emphasis Added)
14. After referring to the above passage, he submitted that since Christian Converted Adidravidars are not included in terms of paragraph 3 of the Presidential notification, the impugned notification is clearly bad in law. He also relied upon the following passage found in paragraph 8 of Soosai's case (cited supra) to contend that their non-inclusion in the Presidential order will not amount to a discrimination having the vice of
Article 14 even though converts to Jainist, Buddhist and Sikh religions are allowed to have the benefit flowing under the notification"-
''Para 8 : ... ... ... It must be remembered that the declaration incorporated in para 3 deeming them to be members of the Scheduled Castes was a declaration made for the purposes of the Constitution. It was a declaration enjoined by clause (1) of
Article 341 of the Constitution. To establish that para 3 of the Constitution (Scheduled Castes) Order, 1950 discriminates against Christian members of the enumerated castes it must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution. It is not sufficient to show that the same caste continues after conversion. It is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin Hinduism continue in their oppressive severity in the new environment of a different religious community. ... ... ... ...
....
It is, therefore, not possible to say that the President acted arbitrarily in the exercise of his judgment in enacting para 3 of the Constitution (Scheduled Castes) Order, 1950. It is now well established that when a violation of
Article 14 or any of its related provisions is alleged, the burden rests on the petitioner to establish by clear and cogent evidence that the State has been guilty of arbitrary discrimination. Having regard to the State of the record before us, we are unable to hold that the petitioner has established his case.... ..."
15. The learned counsel also further placed reliance upon the judgment of the Supreme Court in S.Swvigaradoss -vs- Zonal Manager, F.C.I. reported in (1996) 3 SCC 100. The following passage found in para 8 is relevant and it may be usefully extracted below:-
''Para 8. The Courts, therefore, have no power except to give effect to the notification issued by the President. It is settled law that the Court would look into the public notification under
Article 341(1) or
Article 342(1) for a limited purpose. The notification issued by the President and the Act of Parliament under Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 and the Schedules appended thereto can be looked into for the purpose to find whether the castes, races or tribes are (sic or) parts of or groups within castes, races or tribes shall be Scheduled Castes for the purposes of the Constitution. Under the Amendment Act, 1976, again Parliament has included or excluded from schedules appended to the Constitution which are now conclusive. Schedule I relates to Scheduled Castes and Schedule II relates to Scheduled Tribes. Christian is not a Scheduled Caste under the notification issued by the President. In view of the admitted position that the petitioner was born of Christian parents and his parents also were converted prior to his birth and no longer remained to be Adi-Dravida, a Scheduled Caste for the purpose of Tirunelveli District in Tamil Nadu as notified by the President, petitioner cannot claim to be a Scheduled Caste. In the light of the constitutional scheme civil court has no jurisdiction under Section 9 of CPC to entertain the suit. The suit, therefore, is not maintainable. The High Court, therefore, was right in dismissing the suit as not maintainable and also not giving any declaration sought for''.
(Emphasis Added)
16. However, it must be stated that the Christian Adidravidars are also suffering caste prejudices from not only the caste Hindu but even from the converted Christians belonging to other castes. They are also no way different from the Adidravidars belonging to the Hindu fold. The plight of such converted Adidravidar Christians came to be noted by the Supreme Court in the judgment in Valsamma Paul (Mrs) -vs- Cochin University and others reported in (1996) 3 SCC 545. A useful reference can be made to the following passage found in paragraph 35, which is as follows:-
''In South India, if a person converts from Hindu religion to other religion, the original caste, without violating the tenets of the new order to which he has gone, as a matter of common practice continues to exist from time immemorial. If a person abjures his old religion and converts to a new one, there is no loss of caste. However, where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that: (1984) 2 SCC 91 at p.105, para 31) In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In that case it was held that from his conduct, the respondent established that she by her conduct became a member of the community entitled to contest the elections as a Scheduled Caste. In Mohan Rao case (1976) 3 SCC 411) this Court found as a fact that after conversion he was accepted as a member of the Dalits by the community. Similar are the facts in Horo case (1972) 1 SCC 771. In C.M. Arumugam v. S. Rajgopal (1976) 1 SCC 863) this Court did not accept reconversion, though Rajgopal proclaimed by conduct of his becoming a member of Scheduled Castes and his relations treated him as a member of Dalits. In Horo case also the respondent was recognised as a member of the Scheduled Tribe. Further in election law the compulsion of political party nominating a candidate and voters verdict may be looked into. In Soosai v. Union of India (AIR 1986 SC 733) Bhagwati, C.J. speaking for a three-Judge Bench held that non-recognition of Scheduled Caste Christians as Dalits was not violative of
Article 14 as by reason of conversion 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 issuance of social status certificates. As a part of it, the officer concerned should also verify, as a fact, whether a convert has totally abjured his old faith and adopted, as a fact, the new faith; whether he suffered all the handicaps as a Dalit or Tribe; whether conversion is only a ruse to gain constitutional benefits under
Article 15(4) or 16(4); and whether the community has in fact recognised his conversion and treated him as a member of the community and then issue such a certificate".
17. In fact, recently a Division Bench of this Court in Prof.I.Elangovan -vs- State of Tamil Nadu represented by the Chief Secretary reported in (2007) 3 MLJ 209 dealt with the scope of Swvigaradoss case (cited supra). Speaking for the Bench, S.J.Mukhopadhaya, J. held that the State must follow not only the principle in Swvigaradoss case but also other larger bench judgments in Guntur Medical College, Guntur -vs- Y.Mohan Rao reported in AIR 1976 SC 1904 and C.M.Arumugam -vs- S.Rajagopal and others reported in AIR 1976 SC 939. The following passage found in para 12 may be usefully extracted below:-
''12. We are not inclined to accept such submission. First of all, judicial propriety do not allow this Court to make any observation with regard to the judgment rendered by the Supreme Court, irrespective of number of Judges,who decide it. The decision is binding on parties; the ratio and the law laid by Supreme Court is binding on all the Courts. In fact, we find that in different situations, taking into consideration the relevant facts, findings have been given by the Supreme Court. In the case of Guntur Medical College, Guntur and others -vs- Y.Mohan Rao (supra), the Supreme Court, while observed that ''there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste." Having noticed the decision in the case of C.M.Arumugam -vs- S.Rajagopal and others (supra), the Constitution Bench observed that ''ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations".
(Emphasis supplied)
18. In that view of the matter, a direction was given to the State Government to formulate its policy in granting Caste Certificates to reconverted Adidravidar Christians as Scheduled Castes based upon the Swvigaradoss case as well as the earlier larger bench judgments in Guntur Medical College case and Arumugam's case.
19. In the present case, no doubt Section 4(2) notice issued to the petitioner did not mention the purpose as one of providing house sites to Christian Adidravidars. But in the final notification, the purpose has been mentioned as providing house sites to Christian Adidravidars. In order to verity about the nature of the beneficiaries, this Court directed the second respondent to furnish a list of beneficiaries for whom pattas were granted. Accordingly, the second respondent by a letter dated 10.11.2008 furnished a list of 37 beneficiaries for whom pattas have been granted from the lands acquired from the petitioner. The names of 37 beneficiaries tallies with the averments made in the counter affidavit in paragraphs 2 and 5 extracted above. Therefore, the stand of the petitioner that the acquisition was made for the Christian Adidravidars is unassailable and for that purpose the provisions of Act 31 of 1978 ought not have been invoked.
20. The Tamil Nadu Act 31 of 1978 is intended to acquire land only for Harijan Welfare Schemes and the definition of Harijan is as listed in the Presidential notification issued under
Article 341 of the Constitution. The Christian Adidravidars stood excluded from the list of castes contained in the Presidential notification. The exclusion of Christian Adidravidars from the list of Scheduled Castes was also held to be not unconstitutional by the Supreme Court in Soosai's case (cited supra). But it must be pointed out that the very issue has again taken up and being heard by a larger bench of the Supreme Court. It is yet to decide the validity or otherwise of the exclusion of the Christian Converted Adidravidars from availing the benefits provided under
Article 46 of the Constitution.
21. The petitioner contended that the lands acquired have not been used. Also he has filed an affidavit to that effect and has also produced certain photographs to show that the lands have not been utilised so far. But the photograph produced by the petitioner clearly shows that the lands are not being used for any agricultural purpose. In the surrounding land already buildings have started coming up which will show that it is not going to be used for any agricultural purpose.
22. Since the respondents wanted to utilise the land for providing house sites for Adidravidar people of that village who are converted to Christianity, this Court suggested to the learned counsel for the petitioner to find out whether his client was inclined to negotiate with the District Collector to settle the compensation issue since the land has been used for a public purpose though not prescribed under the State Act. He was also informed that even if the acquisition under the State Act has been nullified, still the State can resort to acquisition under the Central Act 1 of 1894 since the bonafides of the public purpose is not disputed. But after instructions from his client, the learned counsel for the petitioner informed this Court that his client is not willing to settle the matter through any private negotiation.
23. In this connection, it is necessary to refer to the judgment of the Supreme Court in Ramniklal N.Bhutta and another -vs- State of Maharashtra 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, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under
Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-`-vis the private interest while exercising the power under Article 226indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings. (Emphasis Added)
24. This reasoning came to be once again referred and followed by a recent decision of the Supreme Court in M/s.Girias Investment Pvt.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 the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so''.
25. Therefore, this Court is not inclined only to set aside the acquisition made under Tamil Nadu Act 31 of 1978 and leave the matters at that. It is just and necessary to give further directions to the second respondent District Collector and the third respondent State of Tamil Nadu. While the acquisition under the Tamil Nadu Act 31 of 1978 will stand set aside, this will not preclude the respondents from resorting to the acquisition under the Central Act 1 of 1894 for providing house sites to Christian Adidravidars of the Thamanur Village by taking appropriate steps for issuing a proper notification and proceed to acquire the lands for the purpose of distributing them to the 37 beneficiaries already identified by the respondents.
26. The respondents, if so desired, shall take steps to issue notification within a period of twelve weeks from the date of receipt of a copy of this order. Till such time, status quo regarding possession of the land will continue. The writ petition stands disposed of accordingly.
js To
1.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 Welfare Officer, Villupuram