STATE OF GUJARAT & ANR. v. VAGHELA DAYABHAI CHATURBHAI & ORS

Citation: [1980] 2 S.C.R. 1182

Court: Supreme Court of India

Bench: P.N. SHINGAL, E.S. VENKATARAMIAH

Case summary

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 Jhe petitioners who would have...

Judgment text

A STATE OF GUJARAT & ANR. y, VAGHELA DAYABHAI CHATURBHAI & ORS. March 5, 1980 [P. N. SHINGHAL AND E. S. VENKATARAMIAH, JJ. ] B Constitution of India 1950; Bombay Land Revenue Code 1879 & Bombay Land Rerenue Rules 1921-Allotment and grant of cultivation rights Ol'tr 'Bluuha lands'-State Governnient Resolution providing for preference to ltari. jans, adivasis and backward class people-Constitutional guarantee of equality ,. ;II under Article 14--Whether violated. , c JVords & Phrases-'Bhatha lands'-Meaning of The expression "bhatha land" means land which forms part of the bed of a river on \Vhich vegetables, rn'elon, 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 ]ow. The cultivation of such land is possible only till the next rainy season a,; the land gets submerged under the river water. The occupancy rights.

D over such land cannot ordinarily be granted on a permanent basis as in the case of cultivabl'e 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 a1,1ction and the successful bidders were treated as l'essors of the lands for short periods. In the year~ 1951 the State Government ordered that E the leasehold rights over 'bhatha lands' should be disposed of by selection, the crder of priority being (1) bona fide agriculturists who h2. d cultivated the land personally for five years or more, (2) adjacent land holders who had insufficient land for maintenance of their families, (3) coop'erative farming societies and (4) priority holders under the Waste Land Rules.

This order was however cancelled and superseded by the Governm·ent Reso~ lution dated September 19, 1962 which provid'ed that on the expiry of the then _ -1 F existing leases, not held by cooperative farming societies, bhatha land should be disposed of on the basis of five years' lease by public auction. Exp~rience showed that only the moneyed people were able to purchas'e the leasehold rights at the public auction and persons belonging to Scheduled Castes and Scheduled Tribes and the oth'er wea. ker sections of society were not even able to participate in such auctions. Consequently, in the year 1964 leasehold rights over bhatha lands were disposed of on ekasal basis by public auctions. G The question relating to the· disposal of leasehold rights ov'er bbatha lands was discussed' &t the meeting of the District-Collectors held in 1965-1966 and in pursuance to the suggestions made at the meeting and after considering all rde~ ,.

ant matters the State Government by a Resolution dated 28th December, 19667 directed that the 'existing procedure for dispos. al of bhatha lands by aucticn be disoontinued with effect from fanuary 1, 1967 and the disposal of such lands H were ordered to be in the following priority : ( 1) bona fide agriculturists ef the village who were holding land less than 5 acr'es, preference being given to harijans, adivasi and backward class people (2) holders of the land adjoining the GUJARAT V. V. D. CHATURBHA! 1183 bhatha la. nd holding less than 16 acres and having genuine need of additional land for maintenance of their families; (3) cooperative farming societies of harija:.. s, adivasi and backward classes people, (4) coopera. tive farming societies consisting of la. ndless 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 resp'ect of bhatba l·ands for a period of 10 years. The respondents questioned the validity of the Government Resolution dated December 28, 1966 and the Order of th:e 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 th'ey 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 dispo81iC['ised without following the procedure prescribed by section 79(A) reOO with section 202 of the Bombay Land Revenue Code, 1879.

Tirey also contended that the Government Resolution dated December 28, 1966 and the grants made by the CoJlector on the basis of the said Resolution w'ere liable to be struck down en 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 a'Cquire Ieas'chold 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 d. afe 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 I: as per the Kabza receipts.

The Resolution dated December 28, 1966, was · pas,,ed in order to grant lease in respect of bhatha lands in flavour of the landless persons or persons having small extent of lands or persons belonging to Sche ility 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 water- D mark, and of rivers, streams, nallas, lakes, and tanks, and 8ll 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 E the same, and except as may be otherwi~e 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 b.

e 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 F 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 ! awful 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 G 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 H passed by the State Government. The power of the State Government to make r•ders under section 37(I) of the Code is not in tbe pature of appellate or revisional powers which are dealt with separately under sections 203 and 211 of the Code but is iu the nature of an admiuistrative power enabliug the State Govergment to regulate the power of the Collector.

Section 38 of the Code authorises the survey officers whilst survey operations are proctl_eding 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 iu the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages, for free pasturage for the village c,i_ttle, for forest reserves, or for any other pu{Jlic 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 certaiu classes of persol1s 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 assess,d 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 rnaqe 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 pro- F hibited 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 extortfonate G revenue which may be termed as rackrent. Chapter VI of the Code deals with tl;ie provisions relating to the grant, use and reliuquishment of land. Section 62 of the Code which Jays down the conditions subject to which unoccupied land may be granted provides th_at the Collector may, subject to such ~Jes as may from time to time be made by the State Government, reqmre the payment of a price for uilalienated land or to sell the same by auction or to annex such conditions as he may deem fit. Rule 37 of the GUJARAT v. •V. D. CHATURBHAI (Venkataramiah, J.

) 1195 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 deems B 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 occpancy 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 notwithstanding any provision c in the Code, it shall not be unlawful f9r 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 cas~ the occupancy shall be held only for the period and subject to the condition~ so prescribed. Rule 32 of the Rules pro- D vides 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 Develop· ment 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 ! J. nd 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 Co_! lector 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 snch 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 discretian by private arrangement either upon payment of a price fixed by him, or without charge, as he deems fit. A 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 cnltivation 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 GoverllII1ent orders passed B 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 ! J. Ot paid land • revenue once again on payment of arrears out of compassion. Tagavi loans were given by Govefl! illent 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 D laods 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 depr~sed 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 E were passed during the British rule by the State 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 Govemmenl , 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 Sche- G duled Castes, Scheuled 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 H land revenue laws in an equitable manner so that the ecnnomic interests of the weaker sections of the society and in particular ·of members belonging to the Scheduled Castes and Scheduled Tribes are protected GUJARAT v. V. D. CHATURBHAI (Venkataramiah, !. ) 1197 aud promoted. It has to, be mentioned here that there is no provision in the Code or the Rules made thereunder which prohibits disposal -0f 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 Conrt that the basic scheme of the Code was the realization of land revenue by disposing of unoccupied lands by public anction 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 elass people and other persons mentioned therein without resorting to public auction but by having recourse to the procednre set out in it is contrary to the letter a'nd 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 Con3titution.

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 C-Ode never 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 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 I 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 co=on good and the operation of the economic system does not result in the concentration of wealth and means of production to the co=on 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 opportnnities 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 ecbnomically 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 ) GUJARAT v. V. D. CHATURBHAI (Venkataramiah, !.

) 1199 Resolution is discriminatory have not furnished any information about A 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 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 B 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 c 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 D 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. E 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 G 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. R 22-138 SCI/80