Full Judgment Text
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PETITIONER:
STATE OF GUJARAT & ANR.
Vs.
RESPONDENT:
VAGHELA DAYABHAI CHATURBHAI & ORS.
DATE OF JUDGMENT05/03/1980
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SHINGAL, P.N.
CITATION:
1980 SCR (2)1182 1980 SCC (3) 318
ACT:
Constitution of India 1950, Bombay Land Revenue Code
1879 & Bombay Land Revenue Rules 1921-Allotment and grant of
cultivation rights over ’Bhatha lands’-State Government
Resolution providing for preference to harijans, adivasis
and backward class people-Constitutional guarantee of
equality under Article 14-Whether violated.
Words & Phrases-’Bhatha lands’-Meaning of
HEADNOTE:
The expression "bhatha land" means land which forms
part of the bed of a river on which vegetables, melon,
cucumber etc. can be grown during the lean period after the
rainy season is over, when the level of the water in the
river is quite low. The cultivation of such land is possible
only till the next rainy season as the land gets submerged
under the river water. The occupancy rights over such land
cannot ordinarily be granted on a permanent basis as in the
case of cultivable lands, in view of the fact that the land
gets submerged under the river water every year for 4-5
months.
Till the year 1951 the cultivation rights over ’bhatha
lands’ were disposed of by public auction and the successful
bidders were treated as lessors of the lands for short
periods. In the year, 1951 the State Government ordered that
the leasehold rights over ’bhatha lands’ should be disposed
of by selection, the order of priority being (1) bona fide
agriculturists who had cultivated the land personally for
five years or more, (2) adjacent land holders who had
insufficient land for maintenance of their families, (3)
cooperative farming societies and (4) priority holders under
the Waste Land Rules.
This order was however cancelled and superseded by the
Government Resolution dated September 19, 1962 which
provided that on the expiry of the then existing leases, not
held by cooperative farming societies, bhatha land should be
disposed of on the basis of five years’ lease by public
auction. Experience showed that only the moneyed people were
able to purchase the leasehold rights at the public auction
and persons belonging to Scheduled Castes and Scheduled
Tribes and the other weaker sections of society were not
even able to participate in such auctions. Consequently, in
the year 1964 leasehold rights over bhatha lands were
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disposed of on ekasal basis by public auctions.
The question relating to the disposal of leasehold
rights over bhatha lands was discussed at the meeting of the
District Collectors held in 1965-1966 and in pursuance to
the suggestions made at the meeting and after considering
all relevant matters the State Government by a Resolution
dated 28th December, 1966, directed that the existing
procedure for disposal of bhatha lands by auction be
discontinued with effect from January 1, 1967 and the
disposal of such lands were ordered to be in the following
priority: (1) bona fide agriculturists of the village who
were holding land less than 5 acres, preference being given
to harijans, adivasi and backward class people (2) holders
of the land adjoining the
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bhatha land holding less than 16 acres and having
genuine need of additional land for maintenance of their
families; (3) cooperative farming societies of harijans,
adivasi and backward classes people, (4) cooperative farming
societies consisting of landless labourers or small holders
and (5) any of the priority holders under the Waste Land
Rules.
In pursuance to the aforesaid Resolution, the Collector
by his Order dated July 18, 1967, granted 22 members
belonging to Waghari Harijan Community leasehold rights in
respect of bhatha lands for a period of 10 years.
The respondents questioned the validity of the
Government Resolution dated December 28, 1966 and the Order
of the Collector dated July 18, 1967 granting the lease, in
their writ petitions. They alleged that some of them were in
possession of portions of the land of which they had been
dispossessed by the Order of the Collector by virtue of the
eksal tenures created in their favour in the auctions held
in or about the year 1964 and that they could not be
dispossessed without following the procedure prescribed by
section 79(A) read with section 202 of the Bombay Land
Revenue Code, 1879. They also contended that the Government
Resolution dated December 28, 1966 and the grants made by
the Collector on the basis of the said Resolution were
liable to be struck down on the ground that they were
violative of Article 14 of the Constitution and that they
had been arbitrarily deprived of an opportunity to offer
bids at public auctions and to acquire leashold rights.
The State Government contested the petitions on the
ground that none of the respondents was in possession of the
lands in question on the date of the writ petitions and that
some of them who continued to remain in possession of
certain portions of the land after the expiry of the eksal
lease were dispossessed in accordance with law and that the
lands have been handed over to the grantees as per the Kabza
receipts. The Resolution dated December 28, 1966, was passed
in order to grant lease in respect of bhatha lands in favour
of the landless persons or persons having small extent of
lands or persons belonging to Scheduled Castes, Scheduled
Tribes and backward classes and members of cooperative
societies at reasonable rent without being put to the
necessity of offering bids at public auctions, where only
moneyed persons could become successful bidders.
The High Court quashed the Resolution on two grounds:
(1) That the act of the State Government in passing the
Resolution amounted to a fraud on the Statute as the power
of the State under the Code which was a taxation measure had
been utilized for a collateral purpose of achieving a
welfare scheme and (2) that the Resolution was violative of
Article 14 of the Constitution as there was no rational
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nexus between the object to be achieved by the Code viz.
realisation of land revenue and the classification of
persons eligible for the grant of lease-hold rights in
respect of bhatha lands into several groups. It further
directed the State Government not to take into consideration
the Government’s circular issued pursuant to the impugned
Resolution while considering the question of renewal of
leases or disposal of bhatha lands and not to dispossess the
writ petitioners except in due course of law.
Allowing the appeals,
^
HELD: 1(i) The Preamble of the Code provides that it
had been passed as it was found expedient to consolidate and
amend the law relating to Revenue
1184
Officers and to the assessment and recovery of Land Revenue
and to other matters connected with Land Revenue
Administration. [1193B].
(ii) The other provisions of the Code and the Rules
made thereunder show that it is open to the Collector to
dispose of unoccupied lands belonging to the Government
either for cultivation or for any other purpose in favour of
individuals or aggregate of individuals either free of
charge or at an upset price to be fixed by him or by public
auction. A review of the several Government orders passed
under the Code shows that lands belonging to Government had
been set apart free of charge for several public purposes
such as free pasturage, burial grounds, roads, religious
institutions, dhobies’ ghats, potters’ grounds, threshing
floors etc. Land revenue was remitted when there were
drought conditions. Forfeited holdings were often given back
to defaulters who had not paid land revenue once again, on
payment of arrears out of compassion. Tagavi loans were
given by Government to occupants to improve lands. The
dominant purpose of the Code, therefore appears to be public
welfare, even though land revenue which was recoverable
under the Code constituted an important source of revenue of
the State Government. [1196A-E]
(iii) After India became independent, land reform
measures had to be introduced by the States in India to
prevent concentration of land in a few hands and to impose
ceiling on the extent of land that could be held by an
individual or a family, to take possession of land from
individuals or families which was in excess of the ceiling
so imposed and to distribute such excess land amongst
persons belonging to Scheduled Castes, Scheduled Tribes and
other weaker sections of society. All these laws were made
in order to implement the Directive Principles of State
Policy contained in Articles 38, 39 and 46 of the
constitution by strengthening agrarian economy. Never before
was there a greater need as during the post-Constitution
period for administering land revenue laws in an equitable
manner so that the economic interests of the weaker sections
of the society and in particular of members belonging to
Scheduled Castes and Scheduled Tribes are protected and
promoted. [1196F-H]
(iv) There is no provision in the Code or the Rules
made thereunder which prohibits disposal of occupancy rights
or leasehold rights in respect of unoccupied lands in any
manner other than public auction. [1197A]
(v) The conclusion reached by the High Court that the
basic scheme of the Code was the realization of land revenue
by disposing of unoccupied lands by public auction alone
appears to be baseless. [1197B]
(vi) The finding of the High Court that the impugned
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Resolution which provides for the disposal of bhabha lands
amongst bona fide agriculturists, harijans, adivasis and
backward class people and other persons mentioned therein
without resorting to public auction but by having recourse
to the procedure set out in it is contrary to the latter and
the spirit of the Code is set aside. [1197C]
2(i) The Resolution is designed to bring about
distribution of agricultural lands as best to subserve the
common good thus eliminating concentration of wealth and
means of production to the common detriment. It helps
persons, who are in need of lands for their bare maintenance
and who have otherwise no chance of getting them, to acquire
lands at a low rate of rent. [1199D]
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(ii) The classification made in the impugned Resolution
of persons or cooperative societies who are eligible to
secure grants of leasehold rights, bears a reasonable
relation to the object with which the Code is enacted. It
cannot be characterised as arbitrary. There is no infirmity
in the above classification. The Resolution aims at bringing
about social and economic justice and assists people who are
not strong enough to secure leasehold rights at a public
auction for purposes of cultivation. The leases to be
granted are not for any unlimited period. [1199E]
(iii) The High Court was in error in holding that the
Resolution was violative of Article 14 of the Constitution.
[1199F]
3. The High Court did not record any firm finding on
the question of possession of any part of the land by any of
the writ petitioners. The direction issued by the High Court
to the State Government and the Revenue authorities not to
dispossess the writ petitions except in due course of law
therefore becomes unsustainable. [1191H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 281-285
of 1970.
From the Judgment and Order dated 25/28-4-1969 of the
Gujarat High Court in SCA Nos. 1520, 850, 1079, and 1117 of
1967 and 201 of 1968.
S. T. Desai, P. H. Parekh, C. B. Singh and M. N. Shroff
for the Appellants.
Mrs. E. Udayarathnam for respondent No. 1 in CA 284/70.
The Judgment of the Court was delivered by
VENKATARAMIAH, J.-These five appeals by certificate are
preferred by the State of Gujarat against the common
judgment dated April 25/28, 1969 delivered in five petitions
under Article 226 of the Constitution on the file of the
High Court of Gujarat in which the constitutional validity
of the Resolution of the Government of Gujarat bearing No.
L.B.B. 3964/101585-C dated December 28, 1966 issuing
directions regarding the procedure to be followed in the
disposal of ’bhatha lands’ with effect from January 1, 1967
inter alia providing for showing preference to Harijans,
adivasis, backward class persons and co-operative farming
societies consisting of landless labourers or small holders
in the matter of cultivation rights over bhatha land was
challenged. The expression ’bhatha land’ means land which
forms part of the bed of a river on which vegetables, melon,
cucumber etc. can be grown during the lean period after the
rainy season is over when the level of the water in the
river is quite low. The cultivation of this land is possible
only till the next rainy season and when the river swells
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during the rainy season, the said land again gets submerged
under the river water. The occupancy rights over such land
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cannot ordinarily be granted on a permanent basis as in the
case of other cultivable lands in view of the land getting
submerged under river water every year for 4-5 months. The
lands in question are situated in the Bombay area of the
State of Gujarat. Till the year 1951, the cultivation rights
over bhatha lands in the area in question were being
disposed of by public auction and the successful bidders
were being treated as lessees of the lands for short
periods. In the year 1951, the State Government ordered that
the leasehold rights over bhatha lands should be disposed of
by selection in the following order of priority:-
1. Bona fide agriculturists who had cultivated
the land personally for five years or more.
2. Adjacent land holders who, in the Collector’s
opinion, had insufficient land for
maintenance of their families.
3. Co-operative farming societies and
4. Priority holders under the Waste Land Rules.
The above order was cancelled and superseded by the
Government Resolution dated September 19, 1962 which
provided that on the expiry of the then existing leases, not
held by co-operative farming societies, bhatha lands should
be disposed of on the basis of five years’ lease by public
auction. Experience showed that only the moneyed people were
able to purchase the lease-hold rights at the public auction
and persons belonging to Scheduled Castes, Scheduled Tribes
and other weaker sections of society were not even able to
participate in such auctions. In the year 1964 however,
lease-hold rights over bhatha lands were disposed of on
eksal basis by public auction. The question relating to the
procedure to be followed in the disposal of the lease-hold
rights over bhatha lands was discussed at the meeting of the
Collectors held in 1965-66 and after taking into
consideration all relevant matters and the suggestions made
at the above said meeting, the State Government passed the
following Resolution in supersession of all existing
orders:-
"Government of Gujarat
Revenue Department
No. L.B.B. 3964/101585-C
Sachivalaya, Ahmedabad-15
Date: 28-12-1966
RESOLUTION OF GOVERNMENT
In cancellation of all existing orders in regard to
disposal of Bet and Bhatha land by auction, Government is
pleased to direct that
1187
existing procedure of disposal of Bhatha land by auction
should be discontinued from 1st January, 1967 and such land
should be disposed of according to instructions detailed
below:-
1. The existing lease held by co-operative society
should be renewed on their expiry only to the members
of co-operative society. Individually held land less
than 16 acres excluding the bet-bhatha land and the
total holding of the number including the land to be
granted is not more than the member or members 16
acres.
2. If condition (1) is fulfilled the lease in
favour of the co-operative societies should be renewed
for a further period of 10 years on payment of revised
rent which should be fixed on the basis of the factors
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enumerated hereinafter instruction number (6) below.
3. As regards Bhatha lands which have been leased
in favour of individuals such lease should not be
renewed but on the expiry of such lease the lands
should be disposed of to priority holders as enumerated
in instruction No. 5 on payment of rent to be
determined on the basis of factors enumerated in
instruction No. 6. There will be no objection to renew
the lease in favour of such individual if he is
otherwise eligible as per principles fixed in this G.R.
4. As regards new Bet Bhatha lands which are to be
disposed of for the first time they should also be
granted to priority holders as mentioned in instruction
No. 5, on the basis of rent charged for similar lands
which have been disposed of as per instructions
contained in the G.R. or which have been disposed of in
the past by auction.
5. The priority for disposal of Bet Bhatha land
should be as under:-
1. Bona fide agriculturists of the village who are
holding land less than 5 acres. Preference in this case
will be given to Harijan adivasi and backward class
people.
2. Holders of the land adjoining the Bet Bhatha
land holding land less than 16 acres and who in the
opinion of Collector have a genuine need of additional
lands for maintenance of their families. Inter se
preference in this case also will be as per (1) above.
3. Co-operative farming societies of Harijans,
adivasi and backward class persons.
1188
4. Co-operative farming societies consisting of
landless labourers or small holders.
5. Any of the priority holders under the waste
land rules. The individuals as well as co-operatives of
the village in which the Bet Bhatha lands are situated
will have their first priority while the individuals
and co-operative societies of neighbouring villages
within a radius of 5 miles shall be given priority in
the order of nearness from village where the Bet Bhatha
Lands are situated. If there are claims of two equal
priority holders for the same land the disposal will be
by lots."
Thereafter twenty-two members belonging to Waghari
Harijan community were granted lease-hold rights in respect
of a bhatha land for a period of ten years pursuant to the
above Government Resolution by the Collector of Ahmedabad on
July 18, 1967. The relevant part of the aforesaid order of
the Collector dated July 18, 1967 reads as follows:-
No. C.B.A.R.E.V. 165
District Collector’s Office
Ahmedabad
18-7-67
..... ..... .....
ORDER
It is hereby ordered that under mentioned twenty-two
members of Waghari Harijan Ganotia Samuha Kheti Mandali
(unlimited) Santhal, have been granted lands for
cultivation, out of the Government BHATHA-LANDS, for the
period of ten years each member not to have more than four
acres of land, on the conditions hereinafter mentioned.
..... ... .....
Names of members of the Waghari Harijan Ganotia Samuha
Kheti Mandali (unlimited)
..... ...... .....
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TERMS
1. These lands are granted on the condition that
Waghari Harijan Ganotia Samuha Kheti Mandali
(unlimited) must get itself registered within
one year.
2. Either the individual or a co-operative
society shall not be granted BET-BHATHA LANDS
at more than one place.
1189
3. Within the period of fifteen days from the
date of the harvest of the crop from BET
BHATHA lands shall be paid up. Rules
regarding suspension or remission of land
revenue shall not be applicable to the
realization of this rent.
4. The land shall be cultivated personally by
the grantee, unless under exceptional
circumstances. The decision of the Collector
regarding the existence of such exceptional
circumstances shall be final on this
condition. Lease shall be terminated, without
granting any compensation.
5. Rent shall be fixed and payable according to
sections 6 and 7 of Government Resolution
Revenue Department No. L.B.B. 3964-101585-G
dated 28-12-1966.
6. All conditions mentioned in PATTA shall be
complied with.
7. The Collector shall be authorised to revoke
the lease deed before the expiration of the
period of the lease.
8. Unless lease deeds are executed, the
occupation of the land shall be treated as
unauthorised one.
Besides conditions mentioned above, all conditions
mentioned in Government Resolution Revenue Department No.
L.B.B. 3964-101585-G dated 28-12-1966 shall be applicable to
this grant.
This grant shall be valid for the period of ten years
from the year 1967-68. This grant expires on 31-5-1977.
Lease deed to be executed and kept in record.
Sd/- Niranjan Singh,
Collector,
Ahmedabad."
Aggrieved by the above grant, the petitioners in
Special Civil Application No. 1079 of 1967 which was one of
the writ petitions out of which these appeals arise
questioned the validity of the Government Resolution dated
December 28, 1966 and the order of the Collector granting
the lease dated July 18, 1967 in favour of the said twenty-
two persons. In the other four petitions also, the said
Resolution and certain grants made by the Collector were
questioned. The petitioners in all the petitions alleged
that some of them were in possession of portions of the
lands which had been disposed of by the order of the
Collector by virtue of the eksal tenures created in their
favour under auctions held in or about the year 1964 and
they could not be dispossessed without following the
procedure prescribed by
1190
section 79-A read with section 202 of the Bombay Land
Revenue Code, 1879 (hereinafter referred to as ’the Code’).
One of them alleged that he was a permanent tenant of a
portion of the land. They contended that the Government
Resolution dated December 28, 1966 and the grants made by
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the Collector on the basis of the said Resolution were
liable to be struck down on the ground that they were
violative of Article 14 of the Constitution. Their main
grievance was that they had been arbitrarily deprived of an
opportunity to offer bids at public auctions and to acquire
lease-hold rights. They prayed for the issue of a writ in
the nature of mandamus directing the State Government and
the Revenue authorities not to dispossess them on the basis
of the impugned Resolution of the Government and the orders
of the Collector. The State Government and the other
respondents in the writ petitions resisted the petitions.
After hearing the parties, the High Court quashed the
Government Resolution and the grants made by the Collector
holding that they were ultra vires the scheme of the Code
and were also violative of Article 14 of the Constitution.
The State Government was directed not to take into
consideration the Government circular issued pursuant to the
impugned Resolution while considering the question of
renewal of leases or disposal of bhatha lands in question
and not to dispossess the writ petitioners except in due
course of law. The State Government has questioned the order
made by the High Court in these appeals.
Before going into the question relating to the validity
of the impugned Resolution and the grants made by the
Collector, it is necessary to deal with the question whether
any of the writ petitioners were in possession of the lands
in question. The allegation made by them in this regard was
denied by the State Government. In the course of the counter
affidavits filed before the High Court, it was pleaded on
behalf of the State Government that none of the writ
petitioners was in possession of any portion of the lands in
question on the date of the petition that some of them who
continued to remain in possession of certain portions of the
land after the expiry of the eksal leases were dispossessed
in accordance with law and that the land had been handed
over to the grantees as per kabza receipts. Dealing with the
question of possession, the High Court observed in the
course of its order as follows:-
"The petitioners claim in these petitions that
they were cultivating these lands as tenants, except
the petitioner in Sp. C.A. No. 1079/1967 who claims to
be a permanent tenant. The case of the petitioners was
that at the relevant time they had been given Eksali
(of one year) leases on the
1191
expiry of which their right of renewal was completely
taken away by the aforesaid circular. The circular had
completely fettered the discretion of the competent
authorities under the Bombay Land Revenue Code, 1879,
hereinafter referred to as ’the Code’ and had created
an absolute rule excluding the petitioners so much so
that they could not even now give a bid at any public
auction for these lands. Even though in Sp. C.A. No.
1079/67 the case of the petitioner was of a lease in
perpetuity the State had controverted this allegation
and no such grant was produced. The case of the State
was that the petitioner was in illegal possession after
the Eksali lease in 1964. Therefore, even that case
also stands on the same footing. In view of the said
disputed questions of facts which cannot be resolved by
us, the petitioner, therefore, challenged the impugned
circular on the grounds (1) that it is ultra vires the
Code, especially as it creates an absolute rule
excluding the petitioners who would have been entitled
under the provisions of the Land Revenue Code to get
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these leases by bidding at the public auction as per
the relevant rules. The impugned order in this
connection violates the policy of the Code which is to
augment the Government revenue and which does not
contain any policy of excluding any person from the
disposal of these unalienated Government lands, (2) the
petitioners, further challenge the impugned order on
the ground that it is discriminatory and violates
Article 14 and the inequality is writ large on the face
of the entire order especially the so called
reservations in favour of Harijans, adivasis and
backward class people are so excessive that all the 100
per cent lands would get reserved for them under this
policy of priority and the petitioners would be
completely excluded."
There is no reference to the question of possession of
the land by the respondents in any other part of the
judgment of the High Court. From the portion of the judgment
extracted above, it is seen that the High Court did not
record any firm finding on the question of possession of any
part of the land by any of the writ petitioners. It,
therefore, follows that the direction issued by the High
Court to the State Government and the Revenue authorities
not to dispossess the writ petitioners except in due course
of law becomes unsustainable. What remains to be considered
in these appeals is whether the impugned Resolution and the
orders of the Collector are valid or not.
1192
There is no dispute that the writ petitioners were not
eligible under the impugned Resolution for any grant being
made in preference to the grantees in these cases and if the
impugned Resolution is valid, the grants made by the
Collector become unassailable. It is on account of the above
position the writ petitioner challenged the validity of the
Resolution passed by the Government on December 28, 1966.
The High Court quashed the said Resolution on two grounds:
(1) that the act of the State Government in passing the
Resolution amounted to a fraud on the statute as the power
of the State under the Code which was a taxation measure had
been utilized for a collateral purpose of achieving a
welfare scheme and (2) that the Resolution was violative of
Article 14 of the Constitution as there was no rational
nexus between the object to be achieved by the Code viz
realization of land revenue and the classification of
persons eligible for the grant of lease-hold rights in
respect of bhatha lands into several groups. On the first
ground, the High Court observed as follows:-
"The Code in terms directs the statutory
authority, the Collector to make disposal exercising
his judicial discretion, of course, subject to the
statutory rules or even subject to the orders of the
Government which have statutory force. The whole
purpose and object of the Land Revenue Code is never to
exclude any citizen, and such exclusion by way of an
absolute rules leaving no discretion even to the
statutory authority would be completely beyond the
scope of a regulatory measure. This would be
prescribing the end and not prescribing means to an
end. The end has been laid down by the Legislature in
this case and it is one of augmenting the land revenue,
and for the purpose of revenue administration under
this Code, if any disposal is made, the disposal would
be ordinarily to augment land revenue. It may be that
in exceptional cases, the authority may give remission
as in famine years or on other grounds which are
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specified under the scheme of the Code or the Rules.
The end which is envisaged to be achieved by the Code
is one of getting revenue augmented which is the
obvious end of any taxation measure. The end which the
impugned regulation seeks to achieve is totally a
different end."
From a reading of the above observations of the High
Court, it becomes obvious that the High Court felt that the
Resolution which had been passed with a view to showing
preference to members belonging to Scheduled Castes,
Scheduled Tribes and backward classes, landless persons who
belonged to the weaker sections of
1193
society and members of co-operative farming societies did
not subserve the object of the Code i.e. realization of
maximum revenue. The High Court also felt that there was no
scope for the passing of any order or resolution in the
nature of a welfare measure while administering the
provisions of the code. In order to examine the correctness
of the above view of the High Court, it is necessary to
refer to some of the relevant provisions of the Code. The
Preamble of the Code provides that it had been passed as it
was found expedient to consolidate and amend the law
relating to Revenue officers and to the assessment and
recovery of Land Revenue and to other matters connected with
the Land Revenue Administration. Chapters II and III of the
Code deal with constitution powers officers provision
relating to the security to be furnished by certain Revenue
officers and the liability of principals and sureties.
Chapter V of the Code is entitled ’Of Lands and Land
Revenue’ and contains sections 37 to 59. Section 37 of the
Code declares that ’all public roads, loans and paths, the
bridges, ditches, dikes, and fences, on, or beside, the
same, the bed of the sea and of harbours and creeks below
high watermark, and of rivers, streams, nallas, lakes, and
tanks, and all canals, and water-courses, and all standing
and flowing water, and all lands wherever situated, which
are not the property of individuals, or of aggregates of
persons legally capable of holding property, and except in
so far as any right of such persons may be established, in
or over the same, and except as may be otherwise provided in
any law for the time being in force are and are hereby
declared to be, with all rights, in or over the same, or
appertaining thereto, the property of the Government and it
shall be lawful for the Collector subject to the order of
the State Government, to dispose of them in such manner as
he may deem fit, or as may be authorised by general rules
sanctioned by the Government concerned, subject always to
the rights of way, and all other rights of the public or of
individual legally subsisting.’ The aforesaid section 37 of
the Code vests the rights in all properties referred to
therein the State Government and provides that it is lawful
for the Collector subject to the orders of the State
Government to dispose of them in such manner as he may deem
fit or as may be authorised by the general rules sanctioned
by the Government. The State Government is thus constituted
the proprietor of the several items referred to therein.
While the Collector has been given the power of disposal of
the land belonging to the Government, he can do so only in
accordance with the other provisions of the Code and the
Rules made thereunder and subject to any order or resolution
passed by the State Government. The power of the State
Government to make orders under section 37(1) of the Code is
not in the
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nature of appellate or revisional powers which are dealt
with separately under sections 203 and 211 of the Code but
is in the nature of an administrative power enabling the
State Government to regulate the power of the Collector.
Section 38 of the Code authorises the survey officers whilst
survey operations are proceeding under Chapter VIII of the
Code and at any other time the Collector to set apart lands
which belonged to the State Government and not in the lawful
occupation of any person or aggregate of persons, in
unalienated villages or unalienated portions of villages,
for free pasturage for the village cattle, for forest
reserves, or for any other public or municipal purpose; and
lands assigned specially for any such purpose shall not be
otherwise used without the sanction of the Collector.
Section 39 of the Code restricts the right of grazzing on
free pasturage-lands to the cattle of the village or
villages to which such lands belong or have been assigned.
Section 44 of the Code recognizes the existence of certain
privileges of villagers or of certain classes of persons to
cut fire-wood or timber for domestic or other purposes even
in the case of villages or lands in which the rights of the
Government to the trees have been reserved under section 40
of the Code. Section 48 of the Code sets out the manner of
assessment and alteration of assessment of any land. It
provides that the land revenue leviable on any land shall be
assessed with reference to the use of the land-(a) for the
purpose of agriculture, (b) for the purpose of building and
(c) for a purpose other than agriculture or building. Sub-
section (3) of section 48 of the Code empowers the Collector
or a survey officer, subject to any rules made in this
behalf, to prohibit the use for certain purposes of any land
liable to the payment of land revenue and to summarily evict
any holder who uses or attempts to use the same for any such
prohibited purpose. Chapter VIII lays down the procedure to
be followed in the course of survey and settlement
proceedings thus ensuring that there is an equitable
classification of lands for purposes of levy of just
assessment in the light of the relevant economic factors.
The principles underlying the said procedure prohibit the
levy of oppressive or excessive revenue. There is no scope
for levy of extortionate revenue which may be termed as
rackrent.
Chapter VI of the Code deals with the provisions
relating to the grant, use and relinquishment of land.
Section 62 of the Code which lays down the conditions
subject to which unoccupied land may be granted provides
that the Collector may, subject to such rules as may from
time to time be made by the State Government, require the
payment of a price for unalienated land or to sell the same
by auction or to annex such conditions as he may deem fit.
Rule 37 of the
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Bombay Land Revenue Rules, 1921 (hereinafter referred to as
’the Rules’) which are promulgated by the State Government
in exercise of its powers under sections 213 and 214 of the
Code provides that any unoccupied survey number not assigned
for any special purpose may, at the Collector’s discretion,
be granted for agricultural purposes to such person as the
Collector’s deems fit, either upon payment of a price fixed
by the Collector, or without charge, or may be put up to
public auction. When land is granted under section 62 read
with Rule 37, the grantee acquires a heritable and
transferable occupancy right over the land granted, subject
to the lawful conditions imposed under the grant. The
proviso to section 68 of the Code, however, provides that
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notwithstanding any provision in the Code, it shall not be
unlawful for the Collector at any time to grant permission
to any person to occupy any unalienated unoccupied land for
such period and on such conditions as he may, subject to
rules made by the State Government in that behalf prescribe
and in any such case the occupancy shall be held only for
the period and subject to the conditions so prescribed. Rule
32 of the Rules provides that land may be given free of
price and free of revenue, whether in perpetuity or for a
term, for any of the purposes specified in column 1 referred
to in the table given below that rule viz. for sites for the
construction at the cost of a municipality, a panchayat or
other local bodies of schools or colleges etc., for sites
used or to be used in connection with any scheme under the
Community Development Programme, for sites used or to be
used as market yards under the management of market
committees established under the Gujarat Agricultural
Produce Markets Act, 1963 etc. Rule 35 of the Rules empowers
the Collector to exempt from payment of land revenue without
any limit lands used for sites of hospitals, dispensaries,
schools etc. Under Rule 41 of the Rules, land situated in
the bed of a river and not included in a survey number can,
save as otherwise provided in sections 46 and 64, ordinarily
be leased annually by auction to the highest bidder for the
term of one year or such further period as the Collector may
think fit and the accepted bid should be deemed to be the
land revenue chargeable on such land. The language of this
rule also enables the State Government to dispose of such
lands in any other equitable way. This Rule, however, does
not apply to a land which is situated in the bed of a river
and which is included in a survey number. Rule 42 of the
Rules empowers the Collector to dispose of unoccupied land
required or suitable for building sites or other non-
agricultural purpose either by public auction or in his
discretion by private arrangement either upon payment of a
price fixed by him, or without charge, as he deems fit.
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These and the other provisions of the Code and the
Rules made thereunder show that it is open to the Collector
to dispose of unoccupied lands belonging to the Government
either for cultivation or for any other purpose in favour of
individuals or aggregate of individuals either free of
charge or at an upset price to be fixed by him or by public
auction. A historical review of the several Government
orders passed under the Code shows that lands belonging to
Government had been set apart free of charge for several
public purposes such as free pasturage, burial grounds,
roads, religious institutions, village sites, cattle stands,
dhobies’ ghats, potters’ grounds, threshing floors etc. Land
revenue was remitted when there were drought conditions.
Forfeited holdings were often given back to defaulters who
had not paid land revenue once again on payment of arrears
out of compassion. Tagavi loans were given by Government to
occupants to improve lands. Some of the Government orders
relating to grants of lands to private individuals may be
stated here by way of illustration. An order passed by the
Government of Bombay in the year 1931 authorised grant of
lands to kolis and other wild tribes in jungle tracts
without payment of any occupancy price. Another order passed
in 1924 directed that grants of waste lands to members
belonging depressed classes should be liberally made. An
order of the year 1925 for grants of lands to co-operative
societies free of charge. Liberal grants of lands were made
to military pensioners at concessional rates. All these
orders were passed during the British rule by the State
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Government in exercise of its powers under the Code. The
dominant purpose of the Code, therefore, appears to be
public welfare, even though land revenue which was
recoverable under the Code constituted an important source
of revenue of the State Government.
After India became independent, land reforms measures
had to be introduced by the States in India to prevent
concentration of land in a few hands and to impose ceiling
on the extent of land that could be held by an individual or
a family, to take possession of land from individuals or
families which was in excess of the ceiling so imposed and
to distribute such excess land amongst persons belonging to
Scheduled Castes, Scheduled Tribes and other weaker sections
of society. All these laws were made in order to implement
the Directive Principles of State Policy contained in
Articles 38, 39 and 46 of the Constitution by strengthening
agrarian economy. Never before was there a greater need as
during the post-Constitution period for administering land
revenue laws in an equitable manner so that the economic
interests of the weaker sections of the society and in
particular of members belonging to the Scheduled Castes and
Scheduled Tribes are protected
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and promoted. It has to be mentioned here that there is no
provision in the Code or the Rules made thereunder which
prohibits disposal of occupancy rights or lease-hold rights
in respect of unoccupied lands in any manner other than
public auction. When it is felt that it is necessary to
acquire excessive lands in the hands of private individuals
for distribution amongst the landless and other deserving
persons, it is equally necessary to observe the same rule
while distributing the land which belongs to the State
Government. In view of the foregoing, we are of the view
that the conclusion reached by the High Court that the basic
scheme of the Code was the realization of land revenue by
disposing of unoccupied lands by public auction alone
appears to be baseless. We, therefore, find it difficult to
agree that the impugned Resolution which provides for the
disposal of bhatha lands amongst bonafide agriculturists,
harijans, adivasis and backward class people and other
persons mentioned therein without resorting to public
auction but by having recourse to the procedure set out in
it is contrary to the letter and the spirit of the code.
We, therefore, set aside the finding of the High Court on
the above question.
We shall now proceed to examine the question whether
the impugned Resolution is violative of Article 14 of the
Constitution. The grievance of the writ petitioners was that
they were denied the opportunity to acquire the lease-hold
rights at the public auction as a consequence of the policy
of disposal of bhatha lands contained in the Resolution. The
finding of the High Court on the above question appears to
have been influenced by its view on the object with which
the Code was enacted and this becomes obvious from the
following observation of the High Court:-
"As we have already pointed out, the object sought
to be achieved is completely a collateral object and
the criteria which are adopted for the alleged
classification viz. the membership of the co-operative
society and the persons being Harijans, Adivasis or
backward class people have no rational nexus whatever
to the object of augmenting land revenue, which would
be the implicit object underlying the entire Code,
including this statutory power of disposal of the said
lands for the benefit of the public. The Code never
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contemplated any exclusion of persons when such
statutory power was sought to be exercised by the State
by any statutory order. Therefore, this statutory order
clearly violates Article 14 of the Constitution and
even on that ground it must be struck down."
For the purpose of determining the question whether the
impugned Resolution is violative of Article 14 of the
Constitution or not, it is
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necessary to examine whether the classification adopted by
the State Government is based upon some intelligible
differentia which distinguishes individuals and co-operative
societies in whose favour grants of lease-hold rights in
bhatha lands are required to be made by the Collector from
others and whether the said classification bears any
reasonable relation to the object underlying the Code. The
High Court has proceeded on the basis that the
classification made by the Resolution does not have any
rational relation to the object of the Code which according
to it was realization of revenue and nothing more than that.
We have explained earlier that the object of the Code is to
make provision for an equitable distribution of available
land amongst persons who are in need of it. As mentioned
earlier, the State Government is under an obligation to
ensure that the ownership and the control of material
resources of the community are so distributed as best to
subserve the common good and the operation of the economic
system does not result in the concentration of wealth and
means of production to the common detriment. In India which
is predominantly an agricultural country, land forms the
most important means of production. It is well known that
unemployment among the masses is on the increase because
employment opportunities are not increasing at the same rate
at which the population is increasing. Consequently we find
in India to day a large number of landless persons and
persons with uneconomic holdings in villages who are either
unemployed or under-employed. It is also equally well-known
that persons belonging to Scheduled Castes and Scheduled
Tribes form the bulk of such landless persons or owners of
uneconomic holdings who are in need of special care. It is
also the settled policy of the State Governments to
encourage co-operative movement, which is embarked upon with
a view to preventing exploitation of economically weaker
sections of society by others. The State Government in the
instant case appears to have passed the impugned Resolution
in order to grant leases in respect of bhatha lands in
favour of landless persons or persons having very small
extents of land or persons belonging to Scheduled Castes,
Scheduled Tribes and backward classes and members of co-
operative societies at a reasonable rent without being put
to the necessity of offering bids at a public auction where
it is well known that only moneyed persons can become
successful bidders. The impugned Resolution lays down the
procedure to be followed in the disposal of lease-hold
rights in respect of bhatha lands. It does not relate to all
unoccupied lands available in the State of Gujarat. The
total extent of bhatha lands available in the State of
Gujarat when compared with other available unoccupied lands
may be a very small extent. The writ petitioners on whom the
burden of proving that the impugned
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Resolution is discriminatory have not furnished any
information about the extent of Bhatha lands available for
disposal. Clauses (1) and (2) of the Resolution provide that
the existing leases held by cooperative societies should be
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renewed on their expiry only in favour of the members of
such co-operative societies subject to certain conditions
for a further period of ten years on payment of revised rent
which should be fixed on the basis of the factors referred
to therein. Clause (3) of the Resolution provides that
leases of bhatha lands granted in favour of individuals
should not be renewed on their expiry but they should be
disposed of in favour of bonafide agriculturists who belong
to the weaker sections of society and co-operative farming
societies on the basis of priority set out in clause (5)
thereof. The rent payable by them should again be determined
in accordance with the instructions given in the Resolution.
The Resolution is designed to bring about distribution of
agricultural lands as best to subserve the common good thus
eliminating concentration of wealth and means of production
to the common detriment. It helps persons, who are in need
of lands for their bare maintenance and who have otherwise
no chance of getting them, to acquire lands at a low rate of
rent.
The classification made in the impugned Resolution of
persons or co-operative societies who are eligible to secure
grants of lease hold rights, according to us, bears a
reasonable relation to the object with which the Code is
enacted. It cannot be characterised as arbitrary. We do not
find that there is any infirmity in the above
classification. The Resolution aims at bringing about social
and economic justice and assists people who are not strong
enough to secure lease-hold rights of a public auction for
purposes of cultivation. The leases to be granted are not
for any unlimited period. At the end of the period
prescribed in the leases, it will be open to the Collector
to dispose them of afresh. In the above circumstances, we
hold that the High Court was in error in holding that the
Resolution was violative of Article 14 of the Constitution.
For the foregoing reasons, we allow these appeals, set
aside the common judgment and order passed by the High Court
and dismiss the writ petitions. We feel that in the
circumstances of the case, the State Government should pay
the costs of respondent No. 1 in Civil Appeal No. 284 of
1970. We order accordingly. The other parties shall bear
their own costs.
N.V.K. Appeals allowed.
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