Judgment:
ORDER
Swamikkannu, J.
1. R. Annamalai of Veppankulam (via) Kallal, Ramnad District is the petitioner in W.P.No. 1720 of 1983. The Collector of Ramnad at Madurai; the Special Tahsildar, Adhi Dravidar Welfare, Devakottai; and the Secretary to Government of Tamil Nadu, Social Welfare, Madras are the respondents in W.P.No. 1720 of 1983. This writ petition is for quashing the order of the second respondent comprised in RCO-A/1469-82, dated 20.1.1983 and the 4(1) Notification of the third respondent in G.O.Ms.No. 2819, S.W.D. dated 24-11-1982, published at page 25 of the Extraordinary issue of the Tamil Nadu Government Gazette dated 8-12-1982, with respect to the acquisition of the lands of the petitioner in S.No. 126/1C and S.No. 126/78 of Veppankulam village, Karaikudi Taluk, Ramnad District.
2. R. Krishnamurthi, Theli Village, Villupuram Taluk, South Arcot District is the petitioner in W.P.No. 2199 of 1983. The State of Tamil Nadu represented by under Secretary to Government, Social Welfare Department, Government of Tamil Nadu Madras-9 and the Special Tahsildar, Adhi Dravidar Welfare, Villupuram Taluk, South Arcot District are the respondents in this writ petition. This writ petition is for queshing the proceedings relating to G.O.Ms.No. 2094, Social Welfare Department, dated 30.8.1982, published as Notification No. 11(2) S.W.5234/82 at pages 45 and 46 of Part II, Supplement Section II of Tamil Nadu Government Gazette dated 29-9-1982 as illegal, incompetent and without jurisdiction, and further directing the respondents herein not to proceed further in regard to acquisition of lands belonging to the petitioner herein and situate in R.S.No. 2674/7 and of an extent of 0.86 out of 1.46 acres in the village of Venamaniyuthur village, Villupuram Taluk, South Arcot District.
3. In W.P.No. 1720 of 1983, the petitioner has inter alia stated in the affidavit accompanying the petition that in 1971 he purchased from Chinnaperumal Servai and others an extent of 56 cents in S.No. 125/1C for the purpose of raising construction for his residential purposes; that the petitioner and the members of his family are living in a residence close by a channel; that the said property is always subject to erosion whenever there is flow of water in the channel; that in view of the same, he purchased the above mentioned property for construction of a house, that he could not however do so immediately because of want of resources; that he has salvaged through his personal exertion for construction of the house in the said property; that likewise other joint owners who are in joint possession with the petitioner of the property comprised in 126/78 desire to raise construction for their residence; that the said properties are eminently fit for their residence as they are in the neighbourhood of their own relations in the said village; and that in this State of affairs the third respondent herein has caused a Notification under Section 4(1) of the Land Acquisition Act, purporting to be for the provisions of house sites to Adhi Dravidars of Veppankulam village, under G.O.Ms.No. 2819, Social Welfare Department, dated 24-11-1982 published at page 25 of the Extraordinary issue of Tamil Nadu Government Gazette dated 8-12-1982. Pursuant to the same a notice combining Section 4(1) and 5(A) of the Land Acquisition Act I of 1894, as amended by Act 38 of 1923 was issued to the petitioner stating that he shall file objections to the same within 15 clays of the receipt thereof and that an enquiry shall be held on 18.1.1983 at the Taluk Office, Karaikudi at 11.30 a.m. when the petitioner is at liberty to appear in person or by pleader and to adduce any oral or documentary evidence in support o his objection. The petitioner has further stated that he submitted objections dated 16.1.1983 to the second respondent and further slated before the second respondent that the property was absolutely needed for their residential constructions and that he would be put to great hardship if the same were to be acquired by the Government; that the second respondent negatived his contentions and has passed an order dated 20.1.1983 in his proceedings in R.O.C./A/ 1568/82 stating that further proceedings will be pushed through for the acquisition of the said lands; that the petitioner submitted further objections on 21-1-1983 and 7-2-1983 to the Collector and others and also sent a copy of the same to the second respondent. It is further contended by the petitioner that the aforesaid order of the second respondent is illegal and without jurisdiction; and that the said order is also bad as failing to comply with the mandatory provision of the statutory Rules made under Section 55 of the Land Acquisition Act; that Rule 3 of the Land Acquisition Rules has been violated with impunity; that under the said provision it is incumbent upon the second respondent to hear the objections of the objectors and also of the requisitioning authority for land acquisition and comply with the procedure as envisaged under the said rule; that in the absence of any such compliance of the said rule which is mandatory the entire proceedings are rendered and ab initio void. The petitioner has further stated that the order of the second respondent is also bad in that it purports to pass an order on 20-1-1983, soon after the enquiry purported to have been held on 18-1-1983 without affording to the parties opportunity to lead oral or documentary evidence in support of their objections; and that the second respondent has failed to realise that the enquiry contemplated under Section 5(A) of the Land Acquisition Act is a quasi judicial one and ought not to be dealt with in a summary fashion as done by the second respondent. It is submitted by the petitioner that the order dated 20-1-1983 of the second respondent in his proceedings in ROC/A/ 1469/82 as also the 4(1) Notification under the Act published at page 25 of the Extraordinary issue of Tamil Nadu Government Gazette dated 8-12-1982 in G.O.Ms.No. 2819 (Social Welfare Department) dated 24-11-1982 are liable to be quashed.
4. In W.P.No. 2199 of 1983, the petitioner has, inter alia stated in the affidavit accompanying the petition that the Special Tahsildar (Adhi Dravidar Welfare) Villupuram, issued a Form 3A notice under Rule 3 of the Rule framed under Section 55(1) of the Act and held an enquiry on 10-11-1982 and that he filed an objection on 10-11-1982 before the Special Tahsildar wherein he has stated the following objections:
That the Land proposed for acquisition is a fertile one in which crops could be raised thrice in a year;
That as it is including the lands proposed for acquisition, the land is a sizeable plot for which irrigation through the well with the aid of motor as the pump sets is done, that if a portion of the plot is acquired, the areas of supply will become lesser, resulting in the loss of income: and
That the land is more valuable.
The petitioner has further stated that in and by his order dated 14-12-1982 the Special Tahsildar has overruled the petitioner's objections and he recommended further proceedings under the Land Acquisition Act; and that in fact, such acquisition without proper collection of statistics is a futile exercise. The petitioner has further stated that the land is limited in character; that the notification made in G.O.Ms.No. 2094 dated 30-8-1982 specified that the acquisition of land is an extent of 86 cents out of 1.46 acres in S.No. 267-A-a7 (Part), but there is no specification as to which portion of the land is sought to be acquired, that it is not stated as to which portion of the land is sought to be acquired; and that there is no plan attached and therefore Section 4 Notification is bad, for the non-specification of the plot required under the Land Acquisition Act, and there was no proper publication in the village by beat of 'Tom, Tom, as required under Rule 3 of the Land Acquisition Rules framed under Section 55 of the Act. The petitioner has further stated that in Section 5(a) enquiry, no notice was issued to the Social Welfare Department, Government of Tamil Nadu; that the failure on the part of the Special Tahsildar, Villupuram to issue such a notice to the Social Welfare Department as required under Rule 3(b) under Land Acquisition Rules, renders 5(a) enquiry ineffective, incomplete and illegal, that the Government of Tamil Nadu cannot treat the Special Tahsildar, Adhi Dravidar Welfare, Villupuram as part of the Social Welfare Department and dispense with the hearing of objections, as required under Rule 3(b) under Land Acquisition Rules, and that such a notification will be ultra vires and unconstitutional. The petitioner has further stated that the Tahsildar has not made any careful or proper enquiry and his recommendation is vitiated; that the reasons given by the Tahsildar for overruling the objections of the petitioner in regard to the proposed acquisitions are arbitrary, illegal and unsound and that he has not considered the petitioner's objection in the light of Section 5(a) of the Land Acquisition Act. The petitioner has further stated that his lands which are sought to be acquired in S.No. 267-A-A7 in Venmaniyathur village are agricultural lands; that they are fertile lands yielding crops thrice in a year and such a land which are agricultural lands should not be converted into house sites; and that the severance of the petitioners land by the Land Acquisition proceedings also affects the petitioner's other holdings in a vital manner.
5. No counter-affidavit has been filed in these two writ petition on behalf of the respondents.
6. In these two writ petitions the validity of acquisition for Adidravidas without complying with Rule 3(b) of Land Acquisition Rules is challenged. The petitioner in W.P.No. 1720 of 1983 contends that he is the owner of an extent of 56 cents in S.No. 125/1C that for want of resources he could not construct a house and that the Secretary to Government of Tamil Nadu Social Welfare, third respondent therein has caused a Notification under Section 4(1) of the Land Acquisition Act purporting to be for the provisions of house sites to Adhi Dravidars of Veppankulam village, under G.O.Ms.No. 2819 Social Welfare Department, dated 24.11.1982 published at page 25 of the Extraordinary issue of Tamil Nadu Government Gazette dated 8-12-1982. The petitioner has further stated that inspite of his objection, the second respondent, the Special Tahsildar, Adidravida Welfare, Devakottai had passed an order dated 20.1.1983 negativing his objections, and that the aforesaid order is illegal and without jurisdiction.
7. Learned Counsel for the respective petitioner submits that when Rule 3(b) was amended by the Tamil Nadu Act 68 of 1984, which came into force on 24-9-1984 the same was not placed before the Central Legislature, that Rule 3(b) of the Land Acquisition Rules framed under Section 55(1) of the Land Acquisition Act is mandatory and that the provision of Rule 3(b) as amended should be given retrospective effect. Mr. A.R. Lakshmanan, learned Counsel for the petitioner in W.P.No. 1720 of 1983 relied on the decision reported in Ramanuja Chettiar v. The Special Tahsildar (H.W), Villupuram 1981 T.L.N.J. 538 and also the decision reported in State of mysore v. V.K. Kangan : [1976]1SCR369 for the following preposition:
(a) the Government Order issued by the Social Welfare department instead of Harijan Welfare Department is bad and invalid;
(b) Rule 3(b) is mandatory.
Mr. R.S. Venkatachary learned Counsel for the petitioner in W.P.No. 2199 of 1983 relies on the decision in Valliammal v. The State of Tamil Nadu represented by the District Collector, Coimbatore 1984 T.L.N.J. 332 for the proposition that the Explanation to Rule 3(b) dated 19-5-1976 is retrospective.
8. While meeting these contentions, Mr. N.R. Chandran learned Additional Government Pleader (writs) has submitted that placing the Rule before legislature applies only to Central Government Rules, prior to amendment Act 68 of 1984., that Article 166 of the Constitution of India contemplates that Rules may be made by the Governor for convenient transaction of the business and that the scope and the power of the Government are dealt with in the decision reported in A. Sanjeevi Naidu v. Madras : [1970]3SCR505 . Learned Additional Government Pleader further submits that Social Welfare Department is in charge of Harijan Welfare Department, that the Social Welfare Department is competent enough to issue the Government Order and that the ruling in Writ Petition No. 4579 of 1978 cannot be considered to be a good law.
9. The points that arise for consideration in these two writ petitions are:
(1) Whether the acquisition of land for adidravidas without following the procedure prescribed under Rule 3(b) of Tamil Nadu Land Acquisition Rules is valid.
(2) Whether the Social Welfare Department is the competent authority to issue the G.O. on behalf of the Harijan Welfare Department.
(3) Whether Rule 3(b) of the Land Acquisition Rules framed under Section 55(1) of the Land Acquisition Act is retrospective or prospective.
(4) Segregation.
Points 1 to 4:
10. Land Acquisition Act (1 of 1894) has been enacted for the purposes of acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition.
Rule making power is derived from Section 55 of the Land Acquisition Act which reads thus:
55. Power to make rules--(1) The appropriate Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement and may from time to time alter and add to the rules so made;
Provided that the power to make rules for carrying out the purposes of Part VII of this Act shall be exercisable by the Central Government and such rules may be made for the guidance of the State Government and the officers of the Central Government and State Governments;
Provided further that every such rule made by the Central Government shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that say such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
On the strength of this Section 55 of the Land Acquisition Act, the Tamil Nadu Government framed the Rules. Rule 3(b) of the Land Acquisition Rules, framed under Section 55(1) of the Land Acquisition Act, reads as follows:
Rule 3....
(b) If any objections are received from a person interested in the land and within the time prescribed in Sub-section (1) of Section 5-A, the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land where such department is not the Revenue Department Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Collector' a statement by way of answer to the objections and may also depute a representative to attend the enquiry.
The law prior to amendment Act 68 of 1984 is that every such rule made by the Central Government shall be laid as soon as may be after it is made before each House of Parliament, and the law after the amendment is that every such rule made by the State Government shall be laid as soon as may be after it is made before the State Legislature. Thus we find that there is no need to place the Rule before the Legislature since the rule had been framed by the State Government on the strength of the Rule making power under Section 55 of the Land Acquisition Act. Therefore the contention that the failure on the part of the State Government to place the amendment to rule 3(b) before the Legislature makes the rule invalid, is not acceptable.
11. Mr. A.R. Lakshmanan, learned Counsel for the petitioner contended that there is need to follow the procedure prescribed under Rule 3(b) of the Rules since Rule 3(b) is mandatory. He relied on the decision of the Supreme Court in State of Mysore v. V.K. Kagan : [1976]1SCR369 . It was held in the said decision thus;
In determining the question whether a provision is mandatory or directory one must look into the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. One has to consider the nature, the design and the consequences which will follow from construing a provision in one way or the other. Rule 3(b) was enacted for the purpose of enabling the Collector to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make proper decision, The High Court was right in holding that the provision was mandatory.
The Notification under Section 6 was quashed but the notification under Section 4 was upheld.
12. A careful reading of the decision referred to above shows that in view of the amendment to Rule 3(b) there is no need to follow the procedure. However, it is not to be understood that in every case, it need not be followed, this rule is mandatory.
13. The next aspect is convenient transaction of the business. A Governor of a State has got the power to make rules for convenient transaction of the business under Article 166 of the Constitution of India, Article 166 of the Constitution of India reads thus:
166. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order o r instrument made or executed by the Governor.
14. The scope and the power of a Governor are dealt with by the Supreme Court in A. Sanjeevi Naidu v. Madras : [1970]3SCR505 . In that case, a draft scheme for the nationalisation of certain transport routes was prepared and published by the respondent State Government under Section 68(c) of the Motor Vehicles Act 4 of 1939. The validity of the scheme was challenged by the appellants who were private stage carriage operators and whose writ before the High Court was dismissed. It was held by the Supreme Court as follows:
The functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry had been validly authorised under Rule 25-A to take action under Section 68(c) of the Act.
In the very nature of things, neither the Council of Ministers nor an individual Minister can attend to the numerous matters that came up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When these officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated.
Under our Constitution, the Governor is essentially a constitutional head; the administration of the State is run by the Council of Ministers. In order to obviate the difficulty that would arise if the Council of Ministers had to deal with every matter, the constitution has authorised the Governor under Sub-article (3) of the Article 166 to make rules for the more convenient transaction of the business of the Government of the State and for the allocation amongst its Ministers of the business of Government. All matters excepting those in which the Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of the Council of Ministers for more convenient transaction of business. He can not only allocate the various subjects amongst the Ministers but may go further and on the advice of his Ministers designate a particular official to discharge any particular function.
15. Mr. R.S. Venkatachary, learned Counsel for the petitioner in W.P.No. 2199 of 1983 submits that the explanation of taking the Social Welfare Department, including the Harijan Welfare Department as forming part of the Revenue Department as per the definition contemplated by the provisions of the Land Acquisition Act is not in consonance with the recognition of fundamental rights and as such Article 14 of the Constitution of India has been violated so far as the petitioner is concerned and that the procedure adopted is also opposed to the provisions of Article 300 A of the Constitution of India.
16. We are unable to accept this argument of the learned Counsel for the petitioner. Article 166 of the Constitution enables the Governor to make rules for more convenient transaction of business. Social Welfare Department is in charge of Harijan Welfare Department. The following extract from the Tamil Nadu Government Business Rules may be incorporated, to show the subjects that one dealt with by the Social Welfare Department.
SUBJECTS:
SOCIAL WELFARE DEPARTMENT
Bonded Labour; Children Act;
Monigar Choutry including the other charitable institution viz., Friends-in-need Society, Madras and Ooty and Salvation Army. Madras.
Nutrition;
Promotion of Inter-caste marriage and such other measures as are necessary to usher in a casteless society; Reclamation of Kallars, Koravaras Sugalic & Yenadis
Removal of Civil Disabilities;
School for the blind and for the deaf children;
Senior and Junior approved school and allied matters.
Welfare and advancement of Scheduled Castes and Schedule Tribes including eradication of untouchability;
Welfare and advancement of denotified Tribes.
Welfare and advancement of Backward Classes and Most Backward Classes;
Welfare and advancement of Women;
Welfare and advancement of orphans;
Welfare and Rehabilitation of Leprosy-Beggers-Prevention of Begging Act-Care of beggers-Care of old and infirm persons;
Welfare of pre-school children;
Welfare and Rehabilitation of physically handicapped;
Welfare and Rehabilitation of mentally handicapped children;
Youth Service Corps;
Concurrent Subjects--
Scheduled Castes, Scheduled Tribes and other backward Classes; and
Suppression of Immoral Traffic in Women and Girls Act, 1956.
17. Further the ratio of the judgment of this Court in W.P.No. 256 of 1983 and W.P.No. 257 of 1983 (Alagu Chettiar v. Spl. Tahsildar and Anr. and P. Kannaiya Gounder V. The Secretary, Social Welfare Department, Madras-9 and Anr.) would apply to the present case. The Social Welfare Departemtn is incharge of Harijan Welfare and by reason of the Amendment of the concerned Rule under Section 55 of the Land Acquisition Act, the procedure under Rule 3(b) need not be followed since it is exempted. Under these circumstances, we find that equating the Social Welfare Department with the Harijan Welfare Department and thereby exempting the acquisition from the scope of Rule 3(b) of the Land Acquisition Act is proper and valid.
18. Whether the Explanation to Rule 3(b), dated 19-5-1976 is prospective or retrospective Mr. R.S. Venkatachari, learned Counsel for the petitioner in W.P.No. 2199 of 1983 relies on the decision in Valliammal v. The State of Tamil Nadu rep. by the District Collector, Coimbatore 1904 T.L.N.J. 332. The relevant portion of the decision runs thus:
The principle question that arises for consideration in this second appeal is whether the failure to issue a notice under Rule 3(b) framed under Section 55(1) of the Act to the Harijan Welfare Department would vitiate the acquisition proceedings. The learned Counsel for the appellant contented that the requirement as to the issue of a notice to the concerned department of the Government on behalf of which the acquisition proceedings have been initiated under Rule 3(b) of the rules framed under Section 55(1) of the Act is mandatory and as in this case, no such notice had been issued to the Harijan Welfare Department, the land acquisition proceedings have to be declared void. Reliance in this connection was placed by the learned Counsel on the decision of the Supreme Court in State of Mysore, v. V.K. Kangan : [1976]1SCR369 . It was the further contention of the learned Counsel for the appellant that the amendment to the rule by the inclusion of an explanation made in G.O.Ms. No. 996, Revenue, dated 19-5-1976 would, if at all, apply to cases of acquisition subsequent to 19-5-1976, but would not apply to the present case, where proceedings were initiated by a notification under Section 4(1) of the Act on 14.7.1971. On the other hand, the learned Counsel for the respondent would submit that the Harijan Welfare Department had always remained a part of the Revenue Department and as under Rule 3(b) of the Rules framed under Section 55(1) of the Act, it was unnecessary to issue notice to the Revenue Department, the Appellant cannot be heard to complain that the proceedings initiated and completed without such notice are void....
The scope and ambit of the Rule 3 came up for considering before the Supreme Court in State of Mysore, v. V.K. Kangan : [1976]1SCR369 . In that case, the validity by a notification under Section 6 proceeded by a notification under Section 4 of the Act with reference to the acquisition of lands for the Regional Engineering College at the instance of the Education Department of the State of Mysore was challenged on the ground that the Education Department at whose instance the land was sought to be acquired was not given notice as required under Rule 3 (3) of the Tamil Nadu Land Acquisition Rules as in force and that since such a notice was mandatory, failure to comply with that requirement rendered the notification under Section 4 and Section 6 of the Act invalid. The High Court accepted this contention and quashed the notification issued under Section 4 and 6 of the Act. On further appeal to the Supreme Court, it was contended that Rule 3(b) is inconsistent with Section 5-A(2) and that if such a rule was held to be mandatory, that would amount to conversion of a discretionary power into a mandatory duty and would therefore be ultra vires the section. In repelling this argument, the Supreme Court pointed out the need for such a notice to the department requiring the land and observed as under:This does not mean that a rule cannot be framed by the rule making authority for the guidance of the Deputy Commissioner (The Collector) which would enable the Department concerned to place its view-point before him when considering the objection under Section 5-A. The proceedings of the Collector are quasi-judicial and it is only proper that he should be appraised of the attitude of the department requiring the land in the light of the objection filed. If the department requiring the land thinks, in the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity, it is only fair that the Deputy Commissioner (Collector) is informed about it. The answer of the department to the objection filed by the objector, even if adverse to the objector would, at any rate, enable the Collector to bring a more informed and rational approach to the controversy before him. The Collector has to send his recommendation to Government on the basis of his finding together with the record of the proceedings for the ultimate decision by the Government. It would be helpful to the Government in making the decision to have before it the answer to the objection to the department in order to appreciate the rival view points. We do not think that Rule 3.(b) was ultra vires the section.
It is further observed in the decision in Valliammal, v. State of Tamil Nadu 1984 T.L.N.J.332 as follows:.Merely on the basis of the oral assertion of D.W.2, it cannot be concluded that the Harijan Welfare Department is really part of the Revenue Department and therefore, no notice as contemplated under Rule 3(b) of the rules need be given to the Harijan Welfare Department. That the departments were also recognised and understood as different and distinct ones is evident from the very explanation to Rule 3(b) which has been relied upon by the lower appellate Court. The explanation introduced in G.O.Ms.No. 996, Revenue, dated 19-5-1976 is as follows:
Explanation:- For the purpose of this sub-rule, the Revenue Department shall be deemed to include the departments of Harijan Welfare and Backward Classes at the district level.The deeming provision included by the explanation clearly attempts to create a state of affairs not in existence till the explanation had been enacted. In other words, the independent and separate departments viz., Harijan Welfare and Backward Classes Departments at the district level, by reason of the explanation, shall be deemed to be included in the Revenue Department. The explanation is clearly indicative that originally the Harijan Welfare and Backward Classes Department at the district level were not included as part and parcel of the Revenue Department and only subsequently by reasons of the addition of the explanation, they were deemed to be included as comprised within the Revenue Department. The deeming provision contemplated by the explanation establishes that but for that, they would still continue to be independent and separate departments having a distinct and separate identity from that of the Revenue Department. If they had not been so distinct or separate, there was no need at all for the explanation introduced in G.O.Ms.No. 996, Revenue dated 19.5.1976. In view of the intrinsic evidence so furnished by the explanation included in Rule 3(b) by G.O.Ms.No. 996, Revenue dated 19-5-1976. It is not possible merely on the basis of the oral testimony of D.W.2 to conclude that the Revenue Department and the Harijan Welfare and Backward Classes Department were all part of one and the same viz., the Revenue Department and therefore, no notice under Rule 3(b) of the rules need be issued to the Harijan Welfare Department. Earlier it had been seen how the Supreme Court held that if the departments are different and distinct, notice in accordance with Rule 3(b) is mandatory. In this case, on the basis of the very explanation found in G.O.Ms.No. 996, Revenue, dated 19-5-1976, it is seen that the Revenue Department and the Harijan Welfare and Backward classes department came into the fold of Revenue Department and make these departments as part of the Revenue Department and that was achieved by the explanation appended to Rule 3(b) of the G.O. referred to above. In view of this, the argument of the learned Counsel for the respondent that the Harijan Welfare Department was part and parcel of the Revenue Department and therefore, no notice be issued as contemplated under Rule 3(b) cannot be sustained. That leaves for consideration the scope of the explanation added by G.O.Ms.No. 996, Revenue dated 19-5-1976. In construing the applicability of the explanation, the lower appellate Court had proceeded on the footing that it would apply even to the present case, where the proceedings for acquisition were initiated long prior to 19-5-1976, it must be stated in fairness to the learned Government Pleader that he did not support the conclusion of the lower appellate Court that the explanation would operate from a date anterior to 19-5-1976. Even otherwise that view taken by the lower appellate court is erroneous. The explanation merely proceeds to state that Revenue Department includes Harijan Welfare and Backward Classes at the district level. There is no indication in the explanation as to the point of time from which it shall be so deemed. In the absence of any indication in the explanation itself, it has got to be understood as bringing about such a deemed state of affairs to include the department of Harijan Welfare and Backward Classes as part of the Revenue Department only on and from 19-5-1976. In the absence of any indication in the explanation itself to show that it was intended to operate from a point of time anterior to 19-5-1976, it cannot be readily assumed that it was so intended.
Thus it is clear that there is no indication in the explanation as to the point of time from which it shall be so deemed. Therefore it has to be treated as prospective. However, for the sake of completion, we extract the following passage from the Principles of Statutory Interpretation' by G.P. Singh, 3rd Edition, occurring in pages 340 to 344, under the topic 'RETROSPECTIVE OPERATION.'
The Union Parliament as also State Legislatures have plenary powers of legislation committed to them and subject to certain constitutional restrictions they can legislate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to effect vested rights or to impose now burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is 'deemed to be prospective only 'nova constitute futuris formam imponere debet non preeteritis.' In the words of LORD BLANESBURG, 'provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.' 'Every statute, it has been said', observed LOPES L.N., 'which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have retrospective effect.' As a logical corollery of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. The inhibition against retrospective construction is however not a rigid rule and must vary secundum materium.
The rule against retrospective construction is not applicable to a statute merely 'because a part of the requisites for its action is drawn from a time antecedent to its passing.' If that were not so, every statute will be presumed to apply only to persons born and things come into existence after its operation and the rule may well result in virtual nullification of most of the statutes.
19. In certain cases, a distinction is drawn between an existing right and a vested right and it is said that the rule against retrospective construction is applied only to save vested rights and not existing rights. This distinction, however, has not been maintained in other cases. The word 'retrospective' has thus been used in different senses causing a certain amount of confusion. The real issue in each case is as to the scope of the particular enactment having regard to its language and the object discernible from the statute read as a whole.
20. In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible. As stated by LORD DENNING:
The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence or the effect which the Courts give to evidence. If the new Act affects matters of procedure only, then, prima facie 'it applies to all actions pending as well as future'. In stating the principle that' a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective', the Supreme Court has quoted with approval the reasons of the rule as expressed in MAXWELL:
No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court, in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode.For example, a change of forum is a matter of procedure and, therefore, if a new Act requires certain types of original proceedings to be instituted before a special tribunal constituted under the Act to the exclusion of Civil Courts, all proceedings of that type whether based on old or new cause of action will have to be instituted before the Tribunal. To take another example, the non-executability of a decree passed by an Indian Court against a foreigner at a place in a foreign country is a matter of procedure and the decree becomes executable if the place where it is being executed ceases to be a foreign country and becomes part of India and the Indian Code of Civil Procedure is extended to that place.
From the above discussion it is clear that Rule 3(b) is not violative of any principle of law or the provision of Article 14 of Constitution of India. So, when the question is whether Rule 3(b) is retrospective in effect, the only finding that we can render is that it is not retrospective in its operation.
General observation regarding Harijan:
In 'SOCIAL SERVICE, WORK & REFORM' by M.K. Gandhi, Vol.III, First Edition, The Nawajivan Trust, 1976, Mahatma Gandhi, Father of the Nation in the extract from 'Harijan' dated 11-2-1933, (at page 77 and 78) observed follows:
Several correspondents have asked me why I have adopted the name 'Harijan' for 'untouchable'. Some English friend have asked me for its meaning. It is not a name of my coining. Some years ago, several untouchable correspondents complained that I used the word asprishya in the pages of Navajivan. Asprishya means literally untouchable. I then invited them to suggest a better name, and one of the untouchable correspondents suggested the adoption of the name 'Harijan' on the strength of its having been used by the first known poet saint of Gujarat. Though the quotation he sent me did not exactly fit the case he wanted to make out for the adoption, I thought that it was a good word. Harijan. I thought that it was a good word. Harijan means, 'a man of God'. All the religions of the world describe God preeminently as the Friend of the friendless. Help of the helpless and protector of the weak. The rest of the world apart, in India who can be more friendless helpless or weaker than the forty million or more Hindus of India who are classified as untouchables? If, therefore, anybody of people can be fitly described as men of God, they are surely these helpless, friendless and despised people. Hence, in the pages of Navajivan, since the correspondence, I have always adopted 'Harijan' as the name signifying untouchables. And, when God chose to entrust me with their service even whilst undergoing imprisonment, I could not use any other word for describing them. I recoil with horror from that word and all it implies. Not that the change of name brings about any change of status but one may at least be spared the use of a term which is itself one of reproach. When caste Hindus have of their own inner conviction and, therefore, voluntarily, got rid of the present-day untouchability, we shall all be called Harijans, for according to my humble opinion, caste Hindu will then have found favour with God and may, therefore, be fitly described as His men.
In SOCIAL SERVICE, WORK & REFORM by M.K. Gandhi, Vol.III at pages 373 and 374 First Edition, The Navajivan Trust, 1976 Mahatma Gandhi has observed by way of answer to the question put to him
Q. A Madras Harijan writes that while removing the ban on temple-entry and on use of public wells, giving scholarships for education etc., are all good in their own way, the real way to remove all traces of curse of untouchability is to abolish cheris and separate living quarters for Harijans.
A. It sounds well to say that untouchability will go by the board if Harijans are allowed to live wherever they choose. So far as I am aware there is no general law in existence which relegates Harijans to living in special quarters. It is an evil custom that forces them to do so. The custom is breaking down but very slowly. Meantime it is the duty of everyone to get rid of it. It is a question of moving the hearts of people. Supreme sacrifice can achieve the desired result. Has not Tulsidas said:
Through sacrifice Brahama created the world, Through sacrifice Vishnu protects, through sacrifice the whole of creation is sustained,
Therefore, Bhavani, go and perform sacrifice.
When one with that supreme gift is forthcoming, the taint will disappear and religion will be purified and saved.--HARIJAN, 13-10-1946, P.357.
In 'UNTOUCHABILITY' by M.K. Gandhi First Edition Navajivan Trust, 1964 Mahatma Gandhi, Father of the Nation observed as follows at page 5:
It is bad enough when dictated by selfish motives to consider ourselves high and other people low. But it is not only worse but a double wrong when we tack religion to an evil like untouchability. It, therefore, grieves me when learned Pandits come forward and invoke the authority of Shastras for a patent evil like untouchability. I have said, and I repeat today, that we, Hindus, are undergoing, a period of probation. Whether we desire it or not, untouchability is going. But if during this period of probation we repent for the sin, if we reform and purify ourselves, history will record that one act as a supreme act of purification on the part of Hindus. But if, through the working of the time spirit, we are compelled to do things against our will and Harijans came to their own, it will be no credit to the Hindus or to Hinduism. But, I go a step further and say that if we fail in this trial, Hinduism and Hindus will perish. HARIJAN, 5-1-1934, p.8' 'In the purest type of Hinduism a Brahmana, an ant, an elephant and a dog-eater (Shvapacha) are of the same status. And because our philosophy is so high, and we have failed to live up to it, that very philosophy today stinks in our nostrils. Hinduism insists on the brotherhood not only of mankind but of all that lives. It is a conception which makes one giddy but we have to work up to it--HARIJAN, 28-3-1936 p.51
In 'UNTOUCHABILITY' by M.K. Gandhi, First Edition Navajivan Trust, 1954 at pages 13 and 14, Mahatma Gandhi, Father of the Nation, observed as follows:
If all that there is in the universe is pervaded by God, that is to say, if the Brahamana and the Bhangi, the learned man and the scavenger, the Ezhava and the Pariah, no matter what caste they belong to--if all these are pervaded by Lord God, in the light of this Mantra.
This verse when translated would read as follows:
God the Rules pervades all there is in this universe, Therefore, renounce and dedicate all to him and then enjoy or use the portion that may fall to thy lot. Never covet anybody's possession.--there is none that is high and none that is low, all are absolutely equal, equal because all are the creatures of that Creator. And this is not a philosophical thing to be dished out to Brahmanas or Kshatriyas, but it enunciates an eternal truth which admits of no reduction, no palliation. And if that is so, how can anyone here dare to arrogate superiority to himself or herself over any other human being? I tell you, therefore, that if this Mantra holds good, if there is any man or woman here who believes that the temples are defiled by those called Avarnas, that person, I declare, would be guilty of a grave sin'--Harijan, 30-2-2937, p.408.
21. The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (31 of 1978) was enacted by the Legislature of the State of Tamil Nadu in the Twenty-ninth Year of the Republic of India, and it was extended to the whole of the State of Tamil Nadu, Section 3(f) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 defines
'Harijans' as members of the Scheduled Castes and include Scheduled Tribes;
Explanation.--(1) Scheduled Castes' means the castes, reces or tribes or parts of, or groups within, castes, reces or tribes specified in the Constitution (Scheduled Castes) Order, 1950, made by the President under Article 341 of the Constitution as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (Central Act 108 of 1976);
(2) Scheduled Tribes' means the tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in the Constitution (Scheduled Tribes) Order, 1950 made by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 (Central Act 108 of 1976);
(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 Harijan 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:
Power to acquire land is dealt with in the Tamil Nadu Act 31 of 1978, in Section 4, as follows:
4 Power to acquire land --(1) where the District Collector is satisfied that for the purpose of any Harijan Welfare Scheme, it is necessary to acquire any land, he may acquire the land by publishing in the District Gazette a notice to the effect that he has decided to acquire the land in pursuance of this section.
(2) Before publishing a notice under Sub-section (1) the District Collector or any officer authorised by the District Collector in this behalf, shall call upon the owner or any other person, who, in the opinion of the District Collector or the Officer so authorised may be interested in such land, to show cause why it should not be acquired.
(3) (a) The District Collector may, where he has himself called upon the owner or other person to show cause under Sub-section (2), pass such orders as he may deem fit on the cause to be shown.
(b) Where any Officer authorised shall make a report to the District Collector....After considering such report the District Collector may pass such orders as he may deed fit.
Therefore the contention of Mr. R.S. Venkatachari that it is against natural justice when opportunity is not given to the land owners when their lands are acquired merely on the ground that speedy acquisition is required to satisfy the needs of the Adi Dravida Community and by taking away the various rights of questioning the acquisition which are available to the land owners, whose lands are acquired for other purposes such as for schools and other public purposes, cannot be accepted.
Meaning of 'deeming Provision':
It is argued that the impugned Government orders have been issued by the Social Welfare Department, that they have not been issued by the Harijan Welfare Department and that therefore they are not valid Government Orders. Reliance is placed in this regard on the decision in Ramanuja Chettiar v. The Special Tahsildar (H.W) Villupuram 1981 T.L.N.J. 538 wherein it has been observed thus:
If that be so, instead, of retaining the word 'Revenue Department', the rule itself could have been amended to the effect that there is no need to get views of any of the requisitioning departments. From the very nature of amendment effected; the purport and the intent in excluding departments other than the revenue department and the Harijan Welfare and Backward Classes at district level, having been made thus clear, this contention of the Government Pleader, cannot be entertained.
22. In the instant case before us, it is relevant to note that by virtue of allocation of the business rules as contemplated under Article 166 of the Constitution of India. Social Welfare Department which includes Harijan Welfare Department, has been considered as forming part of the Revenue Department so far as the land acquisition is concerned. Therefore this decision is not in any way helpful to the petitioners herein.
In St. Aubyn (L.M.) v. a.g. (1951) 2 All E.R.473, it was observed as follows:.The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a state of an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehension description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.
For the sake of completion, let us extract the following passage occurring in 'PRINCIPLES OF STATUTORY INTERPRETATION' by G.P. Singh, 3rd Edition at pp.262, 263 under the topic 'LEGAL FICTION' regarding the concept of 'deeming' clause.
In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction, it is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction.
As was observed by James, L.J. 'When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to
When a legal fiction is created.' stated S.R. Das, J 'for what purpose, one is led to ask at once, is it so created?
23. Bearing in mind the concept of 'deeming provision in a statute' or 'notification' or 'Government Order', we are of the firm view that when once a notification has been issued by the Governor of a State under Article 166 of the Constitution to the effect that Social Welfare Department are to be treated as 'Revenue Department' as per the provisions of the Land Acquisition Act as well as the Rules made thereunder, the said Notification cannot be said to be discriminatory or violative of the provision of the Article 14 of the Constitution of India, because the object of the enactment is to augment and to get at the objective viz., providing land for Adi Dravida Community to build their house. The need of the hour is not to follow rigorously the procedural law, but to see that the basic needs of the down-trodden community is provided with elementary amenities. Hence we are unable to accept the argument of Mr. R.S. Venkatachari, learned Counsel for the petitioner in W.P.No. 2199 of 1983 and we hold that the deeming provision available and made use of in the proceedings as well as in the Government Orders cannot be said to be against law.
Segregation:
Article 17 of the Constitution reads thus:
'Untouchability' is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'Untouchability' shall be an offence punishable in accordance with law.
24. It is contended by Mr. R.S. Venkatachari, learned Counsel for the petitioner in W.P.No. 2199 of 1983 that acquiring land for construction of a colony for the benefit of only Harijans is of a discriminatory nature and violative of Article 15(1) of the Constitution of India. The land belonging to the petitioner in W.P.No. 2199 of 1983, which is of an extent of 86 cents out of 1.46 acres in S.No. 267-A-A7 (part)-agricultural lands in Venmaniyathur village, is being acquired for house sites to the members of Adi Dravide Community. The validity and the bona-fides of the acquisition were questioned on several grounds. One of the grounds is that the object of the acquisition offends Article 17 of the Constitution of India, which provides that untouchability is abolished and its practice in any form is forbidden. The contention of the writ petitioners is that the proposal of the Government is to acquire land for the purpose of forming a Harijan colony and it virtually amounts to segregating the Harijans in the locality and that would amount to practising untouchability.
25. This contention has to be repelled as untenable and unsustainable because undoubtedly, providing housing accommodation for Harijans which includes Adi-Dravida Community of Tamil Nadu who are in poor economic condition would be a laudable object. The Constitution (First Amendment) Act of 1951 introduced Sub-clause (4) of Article 15, which is in these terms:
Nothing in this Article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any specially and educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes.
After this amendment, there is no scope for the argument that any scheme undertaken for improving the condition of living Adi-Dravuda community is discriminatory.
26. It is contended by Mr. R.S. Venkatachari that even though it is a laudable object, the acquisition, in its effect, will result in segregation of Harijans, amounting to practising untouchability, which is forbidden under Article 17 of the Constitution of India. We see no substance whatever in this contention. The word 'practice' in Article 17 of the Constitution of India is used to connote the unhealthy aspect of the practice, that is, what is forbidden is that a particular community shall not be subjected to any disability like, restriction with regard to public shops, restaurants, hotels and places of public entertainments or the use of wells, tanks, bathing ghats, roads etc., and that they should also have right to enjoy all the amenities like any other citizen. What is prohibited under Article 17 of the Constitution of India is singling out the Harijan community which includes Adi-Dravida Community for hostile treatment, as a socially backward community, and not entitled to be treated on a par with other citizens. Article 17, by no process of reasoning could be held to prohibit the State from introducing and evolving a scheme which improves their conditions of living and also will secure all the amenities mentioned above for the benefit of the Harijans. To say that any scheme in which the State takes a particular interest to improve the lot of the Harijans would amount to practising untouchability resulting in segregation, would defeat the very purpose of the Articles in the Constitution, like Article 15, Article 15(4), Article 16(4) and other Articles dealing with the directive principles of the State. The object of the State is not to segregate and single out the Harijans which includes Adi-Dravida community as a class for hostile and discriminatory treatment, it is just reverse of it. In the instant case, it is also to be borne in mind that one of the contentions raised on behalf of the petitioners is that the procedures that are available for acquisition of lands for companies, etc. contain several opportunities for the land-owners, and that these opportunities are denied so far as the petitioners herein are concerned. Since the acquisition is for the purpose of providing housing colony to the members of Adi Dravida community, the instant case is the best example of the laudable scheme which the Government has undertaken. The directive principles of the State policy incorporated in the Constitution of India also contemplate 'Harijan Welfare Scheme' to be undertaken by the Government, and that the said object can be the subject-matter of legislation. The directive principles of the State policy are not justiciable, yet they can be looked into for the interpretation of the concept that are available in the organic law of the land. To improve the conditions of Harijans which includes the members of Adi-Dravida community, a housing scheme has been evolved, and as a consequence of the same the petitioners' lands along with the lands of other owners are being acquired. Therefore, none of the contentions in this regard on behalf of the petitioners can be upheld. The contention that the scheme involves practising of untouchability cannot be upheld.
Further the fact that the Government acquires lands for providing housing colony for Harijans which includes Adi-Dravida community does not mean that the Government has committed itself that no other person would be allotted house-sites in the land acquired. The object of the acquisition is to promote the interests and the welfare of harijans which includes Adi-Dravida community, as advised by Mahatma Gandhi, Father of the Nation, and to provide them healthy and hygenic places for living and to enjoy basic amenities.
27. Just acquiring the lands with the object of providing houses to Adi-Dravida community, does not amount to segregation, because the object of the acquisition is to provide for the members of Adi-Dravida community residential houses, which is the basic amenity that has to be granted to the down-trodden community.
28. Under these circumstances, we hold that there is no merit in both these writ petitions, we further hold that the decision in Writ Petition No. 4579 of 1978 by Justice Sathiadev, does not lay down a good law as rightly contended by Mr. N. R. Chandran, learned Additional Government Pleader. When the amendment is made in Rule 3, to Sub-rule (b) of the Rules, by exercise of the powers conferred by Section 55(1) of the Land Acquisition Act, the Governor of Tamil Nadu made the amendment to the rules by introducing an explanation, which reads as follows:
In the said rules, in Rule 3 to Sub-rule (b), the following explanation shall be added, namely:Explanation:- Fort the purpose of this sub-rule, the Revenue Department shall be deemed to include the Department of Harijan Welfare and Backward Classes at the district level
and that does not in any way infringe G.O.Ms.No. 996 dated 19-5-1976. Therefore, the amendment Act 68 of 1984 is not retrospective in its operation since it is only subordinate legislation, in the instant case before us, acquisition proceedings were taken long before the amendment Act 68 of 1984. So, the proceedings initiated for acquisition of lands by the Social Welfare Department under the relevant Government Orders are correct and in accordance with law. In view of the above discussion, none of the contentions raised by the petitioners in these writ petitions can be upheld. There is no merit in the writ petitions.
29. In the result, both the Writ petitions are devoid of any merit and are liable to be dismissed and they are hereby dismissed with costs.