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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN & THE HONOURABLE MR. JUSTICE P.P.S. JANARTHANA RAJA
V.G.P. Prem Nagar Minvariya Kudi Erupor Nala Sangam & Another
Versus
The State of Tamil Nadu, represented by the Secretary to Government & Others
W.A. Nos.1446 to 1448 of 2008
Date of Judgment : 05-04-2010
Challenge to clause (9) of Special Form D, Standing Orders 15 of the Board of Revenue that prohibited alienation of lands to non Schedule castes as void and un-reasonable, W.P. dismissed by single judge. On Writ Appeal HELD that even though the alienation was done as early as in 1925 once lands proved to be distributed to the depressed classes then the condition contained in the Depressed Class Act, 1892 and also prohibition of Order 15 of the Board Standing Order will come into play and acquiring of said lands by non-depressed caste would be invalid and such lands were liable to be resumed by the government.
B. BAR ON ALIENATION/PURCHASE CONSTITUTIONALY VALID -
The Court also re-affirmed the decision of the earlier Division Bench in K.K. Palaniappan @ K. Subramaniam v. The Government of TN & Others reported in 1992 (2) MLJ 561 and followed the decision of the Apex Court in Uttar Pradesh State v. Sagar Ahmed reported in AIR 1973 SC 2520. The Court pointed out that in fact the earlier Bench of the High Court had rejected the challenge regarding the validity of the non alienation (clause (9) of special form D, Board Standing Orders 15) from a subsequent purchaser and had held that the classification (as panchami lands) was both rational and had a clear nexus with the object sought to be achieved, that was to prevent alienation by exploitation of the Harijans by persons, other then Harijans (Para 5).
C. CONSTITUTION OF INDIA, 1950 - ARTICLE 39(B) & ARTICLE 46 - ECONOMIC & SOCIAL JUSTICE -
The Court also reiterated the observations of the Apex Court in Papaiah v. State of Karnataka & Others (1996) 10 SCC 533 wherein the court held that "the right to economic justice to the schedule castes, schedule Tribes and other weaker sections is a fundamental right to secure equality of status, opportunity and liberty in rural India and land provides economic status to the owner. The state is therefore under constitutional obligation to ensure to them opportunity giving its largess to the poor to augment their economic position. Assignment of land having been made in furtherance thereof, any alienation, in its contravention, would be not only in violation of the constitutional policy but also opposed to public policy under Section 23 of the Contract Act, 1872. Thereby, any alienation made in violation thereof is void and the purchaser does not get any valid right, title or interest there under.
Result : Writ Appeals dismissed.
Prabha Sridevan, J.
The Panchami Lands or lands assigned to the depressed classes have been alienated to others violating the conditions. The appellants are the persons in possession now. According to them, the Government cannot resume the lands. The learned single Judge held that all the lands which are subject matter of these writ petitions filed by a Private Housing Company were lands allotted to the members of the Scheduled Caste Community, subject to the conditions as per Standing Order No.15 of the Board of Revenue. The conditions are that the lands cannot be alienated to any person for ten years from the date of assignment and thereafter, they can only be alienated to a person belonging to the depressed classes and if they are so alienated to persons other than the depressed classes, the Government has the power to resume such land.
2. Learned senior counsel submitted that such a restraint on alienation was void. He submitted that the decisions relied on by the learned Single Judge were based on Karnataka State Acts which had a specific provision. Those cases cannot be applied to the present case, since our State does not have a separate Act dealing with the subject.
3. Thelearned Special Government Pleader supported the order of the learned single Judge.
4. The poet Namdeo Dhasal wrote :
"O guardian angel, of those who ruin our life-cycle!
Return to us our farms and fields;
Nullify the fraudulent change of lands that robbed us of our lands;
Punish the land owners and the feudal lords Who caste and money have made powerful and arrogant
...
End, once for all, this age of exhaustion
(Mee Marale sooryachya Rathache ghode saat / slew the Seven Horses of the Chariot of the Sun (Translated by Dilip Chitre)
The history of the assignment of lands to depressed classes is important. In 1891, the then
Chengalpet District Collector J.H.A.Tremen Heere, a Britisher, submitted a report to the British Government on seeing the plight of the depressed classes and their socio-economic, political and cultural condition. He mentioned in the report that even after the abolition of slavery in 1844, the practice continued in the name of Padiyaal (bonded labourer). At that point of time, lands were in the total control of persons who were considered to be in the caste hierarchy on a higher level and the bonded agricultural labourers and landless workers mainly belonged to the depressed classes. He noted in his report, "The small or marginal land holdings, housing, literacy, free labour without force/bondage, self-respect and dignity are the factors that could lead to transformation in (their lives)". Based on this, the British Parliament passed the Depressed Class Land Act in the year 1892 and 12,00,000 acres of land were distributed to them in Tamil Nadu. The lands were called Panchami lands and were given away under certain conditions, viz., that they cannot sell the lands or lease them out or give as gifts or pledge them for the first ten years and after the expiry of the ten year period, the lands could be transferred, but only to persons belonging to the depressed classes and any breach of these conditions will entail cancellation of the assignment. It would appear that these conditions were imposed bearing in mind that it would be easy to exploit persons belonging to the depressed classes who had long been kept in a subjugated condition.
5. Today, statistics reveal that vast extents of the lands so distributed are now with the persons who do not belong to the depressed classes. Therefore, the conditions appear to have been violated without any restraint or check. The Special Form-D applies to order for assignment of lands to Scheduled Castes and Condition No.9 reads as follows :-
"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 Scheduled Caste..., the grant will be lia
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