IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.11.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.17467, 15121 and 15171 of 1996 14926 of 1997 and 4459 of 1998 VGP Prem Nagar Minvariya Kudi Erupor Nala Sangam, a Society Registered under the Tamil Nadu Societies Registration Act, 1975, rep.by its Secretary and Treasurer V.Sivadasan .. Petitioner in WP. Nos.17467/1996 WP.15121/1996 V.G.P.Housing Private Limited, V.G.P.Square, Saidapet, Madras-600 015, rep.by its Chairman and Managing Director V.G.Santhosam .. Petitioner in WP.15171/1996 1. Thevvan Ganthi alias D.A.Chinnaswami 2. A.Gurulakshmi .. Petitioners in WP.14926/1997 R.Lakshmi .. Petitioner in WP.4459 of 1998 -vs- 1. The State of Tamil Nadu, rep.by the Secretary to Government, Revenue Department, Fort St.George, Chennai-9. 2. The District Collector, Coimbatore District, Coimbatore. 3. The Revenue Divisional Officer, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 4. The Sub Collector, Coimbatore. 5. The Revenue Inspector, Sarkar Samakulam Coimbatore Taluk, Coimbatore. 6. The Senior Deputy Director of Town and Country Planning, Coimbatore Region, Coimbatore. 7. A.Dorairaj 8. A.S.Kanniah 9. P.Bakkiyalakshmi 10. P.Savithri .. Respondents in WP.Nos.17467, 15121 & 15171 of 1996 1. The State of Tamil Nadu, rep.by the Secretary to Government, Revenue Department, Fort St.George, Chennai-9. 2. The District Collector, Coimbatore District, Coimbatore. 3. The Revenue Divisional Officer, Coimbatore. 4. The Sub Collector, Coimbatore. 5. The Revenue Inspector, Othakkal Mandapam Firka, Coimbatore Taluk, Coimbatore. 6. The Tahsildar, Coimbatore South, Coimbatore. 7. R.Rangasamy 8. Chinnaiyan alias Selvaraj 9. R.Shanmugham .. Respondents in WP14926/1997 WP.4459/1998 PRAYER in WP.17467 of 1996 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 5 to forbear from resuming the land comprised in 25 house sites owned and possessed by the members of the petitioner society in S.F.Nos.473/2A, 2B, 2C, 2D, https://hcservices.ecourts.gov.in/hcservices/ 2E, 2F, 2G, 2G 1A, 2G2 totally measuring an area of 95089 sq.ft. in VGP Prem Nagar, Vivekananda Nagar and Kumaran Nagar in Keeranatham Village, Sarkar Samakulam Panchayat Union, Coimbatore Taluk, Coimbatore District and from dispossessing the members of the petitioner society from the said land or claiming any right or ownership of the said land. PRAYER in WP.15121 of 1996 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 5 to forbear from resuming the land comprised in 35 house sites owned and possessed by the members of the petitioner society in S.F.Nos.473/2A, 2B, 2C, 2D, 2E, 2F, 2G, 482/1A, 1B, 2A, 2B, totally measuring an area of 81619 sq.ft. in VGP Prem Nagar, Vivekananda Nagar and Kumaran Nagar in Keeranatham Village, Sarkar Samakulam Panchayat Union, Coimbatore Taluk, Coimbatore District and from dispossessing the members of the petitioner Society from the said land or claiming any right or ownership of the said land. PRAYER in WP.15171 of 1996 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 5 to forbear from resuming the land comprised in 76 house sites owned and possessed by the members of the petitioner Company and its customers in S.F.Nos.473/2C, 2B, 2D, 2G 1A, totally measuring an area of 4.27 acres in V.G.P. Prem Nagar in Keeranatham Village, Sarkar Samakulam Panchayat Union, Coimbatore Taluk, Coimbatore District and from dispossessing the petitioner Company and its customers from the said land or claiming any right or ownership of the said land. PRAYER in WP.14926 of 1997 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 6 to forbear from resuming the land comprised in Survey Number 117-2B2 bearing Patta No.211 measuring an area of 0.38 acres in Malumachampatti Village, Coimbatore South, Coimbatore District and from dispossessing the petitioners from the said land or claiming any right or ownership of the said land. PRAYER in WP.4459 of 1998 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing respondents 1 to 6 to forbear from resuming the land comprised in Survey Number 117-2B(1) and 117-2B(3) bearing Patta No.565 (Old 248) measuring an area of 71.33 cents in Malumachampatti Village, Coimbatore South, Coimbatore District and from dispossessing the petitioners from the said land or claiming any right or ownership of the said land. https://hcservices.ecourts.gov.in/hcservices/ For petitioner in WP. Nos.17467, 15121 & 15171 of 1996 and 14926 of 1997 :: Mr.V.R.Venkataraman, SC for Mr.S.Baskaran For petitioner in WP. No.4459 of 1998 :: Mr.Kalyanasundaram For respondents in all the writ petitions :: Mr.A.Arumugam, Spl.G.P. ***** O R D E R These writ petitions are filed by a resident Welfare Association and a private Housing Company as well as several individuals to restrain the respondents from resuming the lands allegedly in possession of the petitioners and their members in Keeranatham Village coming under the Sarkar Samakulam Panchayat Union and Malumachampatti Village, Coimbatore South, Coimbatore District. 2. In all these cases, admittedly, the survey numbers referred to by them were all pertaining to the lands allotted to the members of the Scheduled Caste community in that area, in terms of the Revenue Board Standing Order No.15, which are all conditional assignments. The condition being that the same cannot be alienated by any other person and in case of any alienation for reasons other than mentioned in the conditions of allotment, the Government has power to resume such lands. 3. These lands were otherwise known as 'Panchami lands' or 'Depressed Classes lands' (i.e. DC lands). It is claimed by the petitioners that there was no bar for such allotment and they have purchased the land from various persons, who inherited from the original assignees. After forming a society and after getting the opinion of a local Government Pleader, the lands were purchased. Layouts were made for constructing houses to their members and different petitioners. If at this stage, the lands are taken over possession, they will be put to grave hardship. 4. An Housing Company, which is a petitioner in W.P.No.15171 of 1996 had also made similar averments. It is claimed that even the Sub-Collector, Coimbatore had stated that since thirty years have gone from the dates of conditional assignments, they do not require any No Objection Certificate from the governmental authorities for purchasing the land. Pursuant to the same, layouts https://hcservices.ecourts.gov.in/hcservices/ were made by them. Therefore, the respondents should be restrained from resuming the said lands. A Proceedings dated 25.5.1973 issued by the Board of Revenue was also relied upon by showing that in that case, the prescription of 30 years limitation was mentioned by the Board. Reliance was also placed upon the order of this Court in W.P.Nos.15861 and 16234 of 1996, dated 26.2.2005, in which this Court had directed to prefer regular appeals before the appellate authority against impugned orders, if any. 5. Mr.V.R.Venkataraman, learned Senior Counsel appearing for some of the petitioners submitted that by the conditional assignment it is not as if the lands can never be alienated. The restriction against alienation was only for a period of 10 years and thereafter there is no restriction for alienation. He also submitted that such a condition of assignment not permitting any alienation will be illegal and contrary to the provisions of the Transfer of Property Act. The learned Senior Counsel also placed reliance upon the two judgments of this Court in R.Ramanathan and others -vs- State of Tamil Nadu reported in ILR (1998) 1 Madras 1960 and R.Abdul Jabbar and five others -vs- State of Tamil Nadu reported in 1996 (II) CTC 719. 6. In the first case, the resumption of land was dropped by earlier proceedings and it was held that the initiation of fresh proceedings will amount to an estoppel. In the second case, the conditional assignment, if violated, the resumption of land and cancellation of assignment without notice and opportunity to the purchasers were held to be violative of the principles of natural justice. The same arguments were adopted by Mr.Kalyanasundaram, learned counsel for one of the petitioners. 7. Before considering the submission made by the learned counsel for the petitioners, it is necessary to refer to the history of allotment of Panchami land to the Dalits by the Government. Such allotments came to be made by the colonial Government after coming to know the plight of the members of the Scheduled Castes in this State. The atrocities against the dalits which are of common occurrence throughout India are well described in the Abstracts of Proceedings of the Board of Revenue of the Government of Madras dated 05th November 1882, No.723. The following is an extract from the said proceedings as found in paragraphs 134 to 136:- ''134. There are forms of oppression only hitherto hinted at which must be at least cursorily mentioned. To punish disobedience of Pariahs, their masters- (a) Bring false cases in the village court or in the criminal courts. (b) Obtain, on application, from Government, waste lands lying all round the paracheri, so as to impound the https://hcservices.ecourts.gov.in/hcservices/ Pariahs' cattle or obstruct the way to their temple. (c) Have mirasi names fraudulently entered in the Government account against the paracheri. (d) Pull down the huts and destroy the growth in the back-yards. (e) Deny occupancy right in immemorial sub-tenancies. (f) Forcibly cut the Pariah's crops, and on being resisted charge them with theft and rioting. (g) Under misrepresentations, get them to execute documents by which they are afterwards ruined. (h) Cut off the flow of water from their fields. (i) Without legal notice, have the property of sub- tenants attached for the landlords' arrears of revenue. 135. It will be said there are civil and criminal courts for the redress of any of these injuries. There are the courts indeed; but India does not breed village Hampdens. One must have courage to go to the courts; money to employ legal knowledge, and meet legal expenses; and means to live during the case and the appeals. Further most cases depend upon the decision of the first court; and these courts are presided over by officials who are sometimes corrupt and who generally, for other reasons, sympathize with the wealthy and landed classes to which they belong. 136. The influence of these classes with the official world can hardly be exaggerated. It is extreme with natives and great even with Europeans. Every office, from the highest to the lowest, is stocked with their representatives, and there is no proposal affecting their interests but they can bring a score of influence to bear upon it in its course from inception to execution". 8. After referring to the proceedings of the Board of Revenue, Dr.B.R.Ambedkar, an Architect of the Indian Constitution, emphasized the need for a special care of such persons and he stated as follows:- ''The helpless, hapless and sapless condition of the Depressed Classes must be entirely attributed to the dogged and determined opposition of the whole mass of the orthodox population which will not allow the Depressed Classes to have equality of status or equality of treatment. It is not enough to say of their economic condition that they are poverty-sticken or that they are a class of landless labourers, although both these statements are statements of fact. It has to be noted that the poverty of the Depressed Classes is due largely to the social prejudices in consequence of which many an https://hcservices.ecourts.gov.in/hcservices/ occupation for earning a living is closed to them. This is a fact which differentiates the position of the Depressed Classes from that of the ordinary caste labourer and is often a source of trouble between the two. It has also to be borne Depressed Classes are very various and the capacity of the Depressed Classes to protect themselves is extremely limited." (Ref. :Dr.Babasaheb Ambedkar : Writings and Speeches Vol. No.II : Page Nos.552 and 553) 9. J.H.A.Tremen Heere, the then Collector of Chengalpattu District during the British period submitted a memorandum to the British government about the plight of the depressed classes in Chengalpattu District and the need for distribution of land for them in 1891. The British Government conceded his demand and enacted a law in British Parliament to distribute land for cultivation purpose to the Untouchables in India to improve their socio-economic status. The government order numbers 1010 and 1010A dated September 30, 1892 specified that land would be assigned to the Depressed Classes by the government under this Act, agricultural land was distributed to the Depressed Classes from 1892. While distributing the land to the Depressed Classes, the British government made certain conditions and hence they are known as conditional assignments. These conditions were: 1. These lands cannot be sold or mortgaged to any one for ten years, 2. These lands may be sold or mortgaged after 10 years to the Depressed Classes only, 3. Any breach of these conditions will be liable to be cancelled. 10. In order to appreciate the Standing Order No.15 of the Board of Revenue, it is necessary to extract the Special Form D, by which, assignment of land is given to Scheduled Caste with conditions:- ''STANDING ORDERS OF THE BOARD OF REVENUE SPECIAL FORM 'D' Special Form of order for assignment of lands to Scheduled Castes. .... of .... village is informed that his application for the land described in the margin has been accepted subject to the result of any appeal that may be preferred and subject to the following conditions:- (1) that the assignment is liable to cancellation if it be found that it was grossly inequitable or was made under mistake of fact or owing to misrepresentation or fraud or in excess of the limits of authority delegated to the assigning officer by B.S.O.No.15 or that there was an irregularity in the procedure; https://hcservices.ecourts.gov.in/hcservices/ (2) that in the event of the cancellation of the assignment either on appeal or on revision, the assignee shall not be entitled to compensation for any improvements that he may have made to the land; (3) that alienation of the land without the sanction of the Government to a person other than a citizen of India shall invalidate the grant; (4) that, if the land is used for casuarina plantations, no pits or ponds shall be excavated nor such plantations irrigated by pots within two hundred yards of any nattam and pits and ponds excavated beyond the above limits shall be filled up as soon as the plants watered therefrom are three years old and that a breach of any of these conditions will render the assignment liable to cancellation without payment of any compensation; (5) that the annual assessment on the land shall be liable to periodical revision at resettlement; (6) that the Government reserve the right to levy ground-rent (which will be liable to revision from time to time in accordance with the rules in force at the time of the revision) in lieu of assessment, if the land or a portion of it is used for non-agricultural purposes; G.O.Ms.2217, Rev. d.1.10.41 B.P.131, Press, d.1.12.41 (7) that the and shall be subject to all general taxes and local rates payable by law or custom; (8) that the existing and customary rights of Government and the public in roads and paths and rivers, streams and channels running through or bounding the land and the right of Government to a share in mines and quarries subjacent to the said land are reserved and are in no way affected by the grant. Government also reserve to themselves or to persons authorized by them the powers necessary for the proper working of the minerals such as the full and free liberty and right of ingress, egress and regress, etc. as detailed in Part II of the model form of mining lease in Appendix IX, Chapter VIII of the Tamil Nadu Mining Manual, subject to the payment or rendering of compensation to the surface owner for all damages that he may sustain by the exercise of such rights; (9) if the land is alienated to any person within a period of ten years from the date of the grant by way of sale, gift, mortgage or lease of any kind, or after that period to any person who is not a member of the https://hcservices.ecourts.gov.in/hcservices/ Scheduled Castes, or if it ceases to be owned by the original grantee or his legal heirs (or after the ten years) other members of the Scheduled Castes owing to sale by process of law or otherwise, or if default is made in the payment of the Government revenue on the dates prescribed the grant will be liable to be resumed by the Government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money. This prohibition does not however, apply to (i) hypothecation of the land to Government under the Land Improvement and Agriculturists Loans Act, or to a Co-operative Society which is solely composed of the members of the Scheduled Castes nor does it operate to debtor payment of compensation when such lands are subsequently acquired under the Land Acquisition Act and (ii) cases where the assignees offer to give such conditionally assigned lands to Gramadan Sarvodaya Co-operative Societies within ten years from the date of assignment or even thereafter. The power of resuming the grant and ordering re-entry referred to above will vest in the Revenue Divisional Officer, in regard to valuable lands subject to a maximum limit of 2 ½ acres of wet or irrigable dry land, or of 5 acres if the land is valuable and not wet or irrigable dry. Similarly this power will be exercised by Tahsildars, Independent Deputy Tahsildars having separate jurisdiction and dependent Deputy Tahsildar's in charge of sub-taluks in regard to non-valuable lands subject to maximum limit of five acres." 11. If the assignments are made pursuant to the conditions of assignment referred to above, then whether the petitioners, who are neither members of the Scheduled Caste nor were original assignees of the land can come forward to agitate the matter so as to restrain the Government from taking over such lands is the issue raised in these writ petitions. 12. The legislation made in the State of Karnataka and Maharashtra imposing restriction on alienation of lands meant for Scheduled Caste came up for consideration before the Supreme Court in many decisions and it is necessary to refer to those decisions since similar contentions herein were also raised and answered by the Supreme Court. 13. In State of U.P. v. Zahoor Ahmad, reported in (1973) 2 SCC 547, the Supreme Court held in para 16 thus:- ''16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no https://hcservices.ecourts.gov.in/hcservices/ matter what the general law of the land be. The meaning of Sections 2 and 3 of the Government Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the rights, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law. 14. The Supreme Court in Manchegowda -vs- State of Karnataka, reported in (1984) 3 SCC 301, had dealt with similar contentions and it is necessary to refer to the following passages found in paragraphs 11, 12, 17 and 18 :- ''11. Legislature in its wisdom and in pursuance of its declared policy of safeguarding, protecting and improving the conditions of these weaker sections of the community, thought it fit to bring about this change in the legal position by providing that any such transfer except in terms of the provisions of the Act will be null and void and not merely voidable. The Legislature no doubt is perfectly competent in pursuance of the aforesaid policy to provide that such transactions will be null and void and not merely voidable. Even under the Contract Act, any contract which is opposed to public policy is rendered void. The State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society. 12. In pursuance of this policy, the Legislature is undoubtedly competent to pass an enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of https://hcservices.ecourts.gov.in/hcservices/ any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes and Scheduled Tribes for whose benefit the granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassment of protracted litigation and in furthering its object of speedy restoration of these granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in court in the larger interests of benefiting the members of the Scheduled Castes and Scheduled Tribes. 17. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which https://hcservices.ecourts.gov.in/hcservices/ the prohibition was to remain operative. Experience had shown that persons belonging to the Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack