Andhra HC (Pre-Telangana)
Lao-Cum-Revenue Divisional Officer, ... vs Mekala Pandu And Ors. on 9 March, 2004
Equivalent citations: AIR2004AP250, 2004(2)ALD451, 2004(2)ALT546, AIR 2004 ANDHRA PRADESH 250, (2004) 3 CIVLJ 903, (2004) 3 ANDHLD 314, (2004) 2 ANDHWR 84, (2004) 3 CTC 19 (AP), (2004) 2 LACC 69, (2004) 16 INDLD 607, (2004) 2 ANDHLD 451, (2004) 2 ANDH LT 546, (2005) 2 LANDLR 423
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, G. Rohini, K.C. Bhanu
JUDGMENT B. Sudershan Reddy, J.
1. The common question of law that arises for consideration in these matters is:
"Whether the claimants are entitled to payment of compensation under the provisions of the Land Acquisition Act, 1894 (for short 'the Act') when the assigned lands are resumed by the Government for a public purpose ?"
2. A Full Bench of this Court is State of A.P. v. P. Peda Chinnayya, (FB), held:
"Where the Government resorts to the provisions of the Act for acquisition of the patta lands without resorting to the terms of the grant for resumption, it is liable to pay compensation under the Act, but such compensation will be only the market value of the interest of the owner or the assignee of the land, subject to the clog. In such cases of acquisition, the claimant would also be entitled to consequential reliefs, such as those of solatium and interest etc., under the Act. In a case where the patta lands are resumed by the Government, the assignees cannot claim compensation under the Act, but can claim compensation equal to the market value of their interest in the land, subject to the clog. In such cases, no solatium may be payable but interest may be claimed on the amount of compensation from the date of dispossession and till the date of payment of compensation. In a case where the assignees are dispossessed from their patta lands without resuming the lands in terms of the grant and/or initiation of proceedings under the Act, the Government may be directed to initiate proceedings under the Act and to pay compensation under the Act as indicated."
3. The same issue once again came up for consideration before another Full Bench of this Court on a reference made by a Division Bench and the Full Bench in its turn considered it appropriate to refer the matter to a Larger Bench by order dated 20-9-2001, the relevant portion of which reads thus:
"......Furthermore, we are prima facie of the opinion that part of the law laid down by the judgment of the Full Bench that the plaintiffs would be entitled to the market value together with interest may not be correct, particularly, in view of the fact that the right of assignees of the Government land is subordinate to the State. The lands assigned under such patta are resumable. In that view of the matter, they may not be treated to be owners of the lands so as to claim entire compensation calculated at the market value for acquisition thereof under the Land Acquisition Act."
4. That is how the matter once again came up for consideration before a Larger Bench in State of A.P. v. Bondapalli Sanyasi, (LB), wherein it is held:
"..... .the Full Bench committed error insofar as it held that where patta lands are resumed by the Government, the assignee would be entitled to compensation which would be equal to the market value of their interest in the land subject to the clog. Quantum of damages has to be ascertained having regard to the fact situation of each case. The right of the State to resume land is conditional only to the extent referred to in D-Form patta. Once such conditions are fulfilled, which have been done in the instant case, no grant of compensation would be payable towards resumption of land. Compensation may, however, be payable if lands have not been resumed by following due process of law. The act of the State in such cases would be tortuous in nature."
5. The views of the Larger Bench are summarized in the following manner:
"Where the assigned land is taken possession of by the State in accordance with the terms of the grant or patta the right of the assignee to any compensation will have to be determined in accordance with the conditions in patta itself and where the State does not resort to the covenant of the grant and resorts to the Land Acquisition Act the assignee shall be entitled to compensation in terms of the Land Acquisition Act not as an owner but as an interested person for the interest he held in the property."
6. Dr. Motilal B. Naik, J., sitting with Ms. G. Rohini, J., while dealing with W.A. No. 170 of 2002, in which more or less similar issue had arisen for consideration, opined thus:
"Though the assignees are entitled to get benefits on the basis of the ratio laid down by the Full Bench of this Court in the decision State of A.P. v. P. Peda Chinnayya, (FB) (supra), in view of the later decision of the Larger Bench of this Court cited in State of A.P, v. Bondapally Sanyasi, (LB) (supra), such benefit is denied to them in spite of the fact that the Larger Bench in the decision State of A.P. v. Bondapally Sanyasi (supra) has not examined the correctness of the view of the Full Bench decision State of A.P. v. P. Peda Chinnayya (supra) in correct perspective having regard to the facts and circumstances of each case and in the light of the implications arising out of various G.Os. issued by the Government from time to time on the question of payment of compensation to the assignees on resumption of lands by the Government.
It is in this background, we are of the considered view, the decision of the Larger Bench in the decision cited in State of A.P. v. Bondapally Sanyasi (supra), requires reconsideration in the light of the State's obligation arising out of Chapter-V of the Constitution of India and in the light of the G.Os. issued by the Government from time to time meeting the contingency of payment of compensation in case of resumption of assigned lands. We, therefore, direct the Registry to place the matter before the Hon'ble the Chief Justice for referring this issue relating to payment of compensation to the assignees of Government lands in the light of the Larger Bench decision and Full Bench decision cited State of A.P. v. Bondapally Sanyasi and State of A.P. v. P. Peda Chinnayya (supra) respectively to a Larger Bench for its decision, at an early date so that the controversy in this regard could be put to rest."
7. The matter was accordingly placed before a Larger Bench consisting of five Judges after obtaining the orders from the Honourable the Chief Justice. When the matter was taken up for hearing by the Larger Bench, objections were raised by the learned Government Pleader inter alia contending that the Division Bench is bound by the Larger Bench judgment in Bondapalli Sanyasi (supra) and, therefore, it was not correct to make a reference to a Bench of five Judges.
8. The larger Bench of five Judges having regard to the fact that the subject-matter that arises for consideration is of a very great public importance required the matter to be placed before the Chief Justice to constitute a Larger Bench of seven Judges to resolve the issue in public interest. That is how the matter is placed before this Larger Bench.
9. Before we proceed further to consider the question that had fallen for consideration, we are required to make it clear that the learned Advocate-General appearing on behalf of the State did not raise any objection whatsoever about the reference made at the instance of the Division Bench, which doubted the correctness of the judgment of the Larger Bench of five Judges. The learned Advocate-General submitted that the Honourable the Chief Justice has prerogative to constitute a larger Bench and, therefore, it would be unnecessary to go into that question.
10. The learned Advocate-General submitted that the issue relating to payment of compensation to the assignees of Government lands is required to be considered in proper perspective by duly taking into consideration that alienation of Government lands even in favour of weaker sections of the society is not in derogation of ownership of the Government in the land. The acquisition of land by the State is invariably for a public purpose. Where the State possesses interest in the land acquired, a notification takes effect in regard to the remainder of the interest held by private parties. The compensation will be payable for the interest held by the private parties ignoring the interest held by the Government, which is already vested in the Government. The acquisition relates to the quantum of interest of the D-Form pattedar. In such cases, quantum of interest is required to be determined with reference to the conditions of the grant itself. In cases of enforcement of terms of the grant and if the grant itself is cancelled for violation of the terms of the grant no compensation is payable to the grantee irrespective of the length of the period during which the assignee remained in possession of the land. Where no action has been taken to cancel the grant prior to acquisition and taking possession of the land, the grantee's right will have to be computed taking into account the vulnerability of the grant to cancellation if there be any violation of the terms of the grant. Where compensation is required to be determined under the provisions of the Land Acquisition Act, 1894 logically all the reliefs available under the said Act would be available, though such reliefs may have to be computed with reference to the limited interest of the grantee.
11. The sum and substance of the submission of the learned Advocate-General was that the assignee who is deprived of his property should only be compensated to the extent of the value of his right and interest in such property. The fact that the assignee's right in the land is limited cannot be ignored and compensation in excess of his rights cannot be granted.
12. The learned Advocate-General further submitted that in case of resumption of the land by the Government for a public purpose under the terms of the grant, no compensation is liable to be paid except in accordance with the terms of the grant itself. A writ of mandamus does not lie compelling the State to acquire its own land and pay compensation to the assignee.
13. Sri Challa Sitaramaiah, learned amicus curiae submitted that the entire issue relating to assignment of the land by the Government to the landless poor farmers and weaker sections of the society is required to be considered in a broader perspective. The assignment is not a gratis but is a constitutional obligation imposed upon the State. It is in the nature of public assistance. The assignees are constitutional claimants. While interpreting the provisions relating to grant of assignment of land by the Government to the vulnerable sections of the society, this Court has to bear in mind the constitutional commands enshrined in Part-IV of the Constitution of India. It was urged that the restraint imposed on alienation of the assigned land is not in derogation of ownership and title, but the same is as a protective measure. That whenever the State acquires such land, the condition of non-transferability pales into insignificance and disappears and such condition cannot be considered as a clog. Whenever such land is either resumed or acquired by the State even for a public purpose, the assignees are entitled to payment of compensation equivalent to the market value of the land. 'No compensation clause' incorporated, as one of the conditions of grant of patta/assignment, is unconstitutional. The recipient of a welfare measure and public assistance cannot be deprived of his livelihood. The provisions including the Government Grants Act, 1895 must be read subject to Article 21 of the Constitution of India.
14. Sarvasri P. Sri Raghu Ram and M. Laxman, adopted the submissions made by the learned amicus curiae.
Legal environment relating to assignment of Government land to the landless poor persons:
15. The State Government in discharge of its constitutional obligations launched special programmes from time to time for assignment of Government waste lands to landless poor persons and weaker sections of the society. The policy for assignment of Government waste lands is evident from various Board Standing Orders and the rules framed under the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli so far as the Telangana Area is concerned. The rules regarding assignment of lands and the conditions incorporated in D-Form pattas as well as other forms of pattas not only prohibit alienation of such lands but also provide for its resumption as well as re-grant to eligible persons. The Board Standing Orders as well as the rules provide for assignment of lands to landless poor and weaker sections of the society, both for the purpose of providing house sites and agricultural lands.
16. A landless poor person is one who owns riot more than one acre of wet or five acres of dry land and is also poor. The lands at the disposal of the Government shall be assigned only to landless poor persons who directly engage themselves in cultivation. The maximum extent of land which may be assigned to a single individual shall be limited to one acre wet or five acres dry, subject to the proviso that in computing the area lands owned by the assignee shall be taken into account, so that the lands assigned to him together with what is already owned by him does not exceed the total extent of one acre of wet or five acres of dry land. (i) The assignment of lands shall be free of market value; (ii) lands assigned shall be heritable but not alienable; (iii) lands assigned shall be brought under cultivation within three years; (iv) no land tax shall be collected for the first three years except for the extent if any, which has already been brought under cultivation. Water rate shall, however, be charged if the lands are irrigated with Government water; and (v) cultivation should be by the assignee or the members of his family or with hired labour under the supervision of himself or a member of his family.
17. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, which provides for the imposition of a ceiling on agricultural holdings and taking over of the surplus land, further provides that the surplus lands taken over are to be allotted for use as house-sites for agricultural labourers and village artisans or transferred to the weaker sections of the people dependent on agriculture, one-half of the lands being set apart as far as practicable for the Scheduled Castes and the Scheduled Tribes. In respect of the surrendered land in the occupation of a protected tenant in the Telangana Area, the right of purchase of such protected tenant is saved subject to certain conditions.
18. Section 14 of the said Act mandates that the lands vested in the Government under this Act shall be allotted for use as house-sites for agricultural labourers, village artisans or other poor persons owning no houses or house-sites, or transferred to the weaker-sections of the people dependent on agriculture for agriculture or for purposes ancillary thereto, in such manner as may be prescribed. Any transfer of the land shall be subject to: (i) the condition that the land shall not be alienated by the transferee by way of sale, gift, mortgage, lease or in any manner whatsoever otherwise than by way of mortgage in favour of the Government, a bank or a Co-operative Society, including a land mortgage bank; and (ii) such other conditions as may be prescribed. Any alienation effected or other act done in respect of any land in violation of the conditions specified shall be null and void and the Revenue Divisional Officer shall resume the land after giving an opportunity to the persons effected of making a representation in that behalf. The Act itself has been brought into existence for giving effect to the policy of the State towards securing the principles specified in Article 39 of the Constitution of India.
19. The Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 is another piece of legislation, which is protective in its nature, with a view to prevent transfers and alienations of assigned lands. The Act further provides for restoration of such lands to the assignees. Section 3 of the Act declares that notwithstanding to the contrary in any other law for the time being in force no land assigned to a landless poor person for the purpose of cultivation or as a house-site shall be transferred and shall be deemed never to have been transferred; and accordingly no right or title in such assigned land shall vest in any person acquiring the land by such transfer, however, such transfer of assigned land, if any, in favour of another landless poor person in good faith for a valuable consideration is saved. The competent authority is assigned with the duty to take possession of the assigned land after evicting the purchaser in possession and restore the assigned land to the original assignee or his legal heir, or where it is not reasonably practicable to do so to resume the same to Government for assignment to landless poor persons in accordance with the rules.
20. The orders of granting house-sites in villages under Board Standing Order 21 inter alia contain the following condition:
"If without the previous approval of the Revenue Divisional Officer, in writing the land is alienated by way of sale, gift, mortgage or lease of any kind within a period of ten years from the date of the grant, or ceases to be owned by the original grantee or his legal heirs owing to sale by process of law or otherwise for a like period, the grant will be resumed by the Government, who will be entitled to re-enter and take possession of the site without compensation either for any improvements made to it or for any buildings constructed on it. This prohibition does not, however, apply to the hypothecation of the site together with any buildings erected on it to Government under the Land Improvements and Agricultural Loans Act or to a Cooperative Society. The power of resuming the grant and ordering the re-entry referred to above will vest in the Revenue Divisional Officer."
21. The patta certificate issued under the Louni Rules contained in G.O. Ms. No. 1406, dated 26-7-1958 inter alia contains the following conditions of assignment:
1. The lands shall be heritable but not assignable.
2. The lands shall be brought under direct cultivation within three years from the date of the order.
3-11......
12. In the event of the land being required for any other public purpose, the land will be resumed and no compensation shall be paid to the assignee (The decision of the Government or the other authority empowered by them in this behalf shall be final on the question, whether the purpose for which the land is to be resumed is a public purpose or not).
13. In the event of resumption of the land assigned market value of the purchase money or such share of it as is proportionate, to the area resumed will be repaid.
14. The Government will not however, be liable to pay compensation for any improvement which may have been effected on the land before such resumption.
15-19.......
22. The Government having examined the question relating to payment of compensation in respect of the Government lands assigned on D-form pattas may come under submergence of any projects i.e., major, medium and minor irrigation and Power Projects, issued instructions from time to time. The sum and substance of the instructions issued is that the assignees are entitled to be paid only the market value of the land, as the resumption of assigned lands for public purpose is not in the nature of compulsory acquisition. It is further clarified that the assignees are entitled only to compensation of the variable improvements made on the assigned lands. They are not entitled to market value as fixed by Courts in respect of similar patta lands and the amount payable thereof is to be treated as ex-gratia.
23. It is in the light of the conditions of patta and the instructions issued by the Government from time to time and various provisions in law putting restriction on right to alienate the assigned land, the learned Advocate General contended that the acquisition only relates to the quantum of interest of the D-Form pattedar and the quantum of interest is to be determined with reference to the Conditions of the grant. Even where the compensation is determinable under the Land Acquisition Act, 1894 the same will be computed with reference to the limited interest of the grantee. The condition of non-transferability is relevant for the purpose of estimating the quantum of right of the grantee, which he is being deprived of by the procedure of the land acquisition.
Directive Principles of State Policy and concept of Distributive Justice: Whether recipients are constitutional claimants?
24. In order to consider these submissions, it becomes just and necessary to address ourselves to the main question, what is the purpose and object of the assignment of land by the Government to the weaker sections of the society?
25. We have noticed the relevant provisions of the Board Standing Orders and the Rules framed under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli called "Land Assignment/Revised Assignment Policy"; the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 while dealing with the nature and scope of the Government's power to grant assignment and conditions thereof imposing restriction on alienation of assigned lands and the State converting the patta into ryotwari tenure (land for cultivation).
26. The land reforms legislations have been enacted by the State in discharge of its obligation under Article 39(b) and (c) of the Constitution of India, which inter alia commands the State that it shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
27. Likewise, Article 41 of the Constitution of India commands the State that it shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of underserved want.
28. The assignment policy itself is the result of unending struggle over allocation of collective resources. It was the egalitarian promise of a welfare State sought to do away with the vestiges of feudalism and unequal social order. Allocation of collective resources to the weaker sections of the society is an aspect of distributive justice. Social justice is the signature tune of the Indian Constitution. The struggle for freedom has been not only political but also economic and social.
29. Chandrachud, C.J., in Minerva Mills Ltd. v. Union of India, , highlighted the significance of the perception that Parts III and IV together constitute the core commitment to social revolution and they, together, are the conscience of the Constitution. "Granville Austin's observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV........ This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution........It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.......It is not possible to fit fundamental rights and directive principles in two distinct and strictly defined categories, but it may be stated broadly that fundamental rights represent civil and political rights while directive principles embody social and economic rights. Both are clearly part of the broad spectrum of human rights....... The only distinguishing feature, to my mind, between fundamental rights and directive principles is that whereas the former are enforceable in a Court of law, the latter, are not. And the reason for this is obvious."
30. The learned Chief Justice approvingly referred to the view expressed by the Planning Commission that merely because the directive principles are non-justiciable, it does not follow that they are in any way subservient or inferior to the fundamental rights. It is further observed, "the directive principles therefore, impose an obligation on the State to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, so that individual liberty will become a cherished value and the dignity of the individual a living reality, not only for a few privileged persons but for the entire people of the country." It is further observed, "the directive principles are not excluded from the cognizance of the Court, as under the Irish Constitution; they are merely made non-enforceable by a Court of law.........."
31. In State of Karnataka v. Ranganatha Reddy, , Krishna Iyer, J., observed that each word used in Article 39(b) and (c) of the Constitution of India has a strategic role and the whole article a social mission. It is further observed:
"A directive to the State with a deliberate design to dismantle feudal and capitalist citadels of property must be interpreted in that spirit and hostility to such a purpose.......Two conclusions strike us as quintessential. Part IV, especially Article 39(b) and (c), is a futuristic mandate to the State with a message of transformation of the economic and social order. Firstly, such change calls for collaborative effort from all the legal institutions of the system: the Legislature, the judiciary and the administrative machinery. Secondly and consequentially, loyalty to the high purpose of the Constitution, viz., social and economic justice in the context of material want and utter inequalities on a massive scale, compels the Court to ascribe expansive meaning to the pregnant words used with hopeful foresight, not to circumscribe their connotation into contradiction of the objectives inspiring the provision. To be Pharisaic towards the Constitution through ritualistic construction is to weaken the social-spiritual thrust of the founding fathers' dynamic faith."
In Pathumma v. State of Kerala, , the Supreme Court observed:
"Article 39(b) contains a direction to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Indisputably, the object of the Act is to eradicate rural indebtedness and thereby to secure the common good of people living in abject poverty."
John Rawls in his 'A Theory of Justice' says:
"......the aim of the branches of Government is to establish a democratic regime in which land and capital are widely though not presumably equally held. Society is not so divided that one fairly small sector controls the preponderance of productive resources. When this is achieved and distributive shares satisfy the principles of justice........"
32. In Goldberg v. Kelly, 25 L ED (2) 287, an interesting question had fallen for consideration in the Supreme Court of the United States. Residents of New York City who were receiving financial aid under state or federally assisted welfare programs instituted actions in the District Court alleging that state and city welfare officials had terminated, or were about to terminate, such aid without prior notice and hearing in violation of due process. After the commencement of such actions, the welfare authorities adopted procedures whereby the recipient, after informal discussion, was given at least 7 days' notice of proposed termination of payments, of his right to have the proposed termination reviewed by a higher official, and of his right to submit a written statement for purposes of such review, and whereby the recipient, after an adverse decision by the reviewing official and termination of payments, could obtain a post termination hearing before an independent hearing officer, at which hearing one could appear personally, offer oral evidence etc. The constitutional adequacy of such procedure was put in issue. The District Court held that only a pre-termination evidentiary hearing would satisfy due process. On appeal, the Supreme Court of the United States affirmed. In an opinion by Brennan, J., while considering the nature of the right to receive public assistance, observed:
"From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." (Emphasis is of ours).
33. While adverting to the contention that pre-termination evidentiary hearings are outweighed by countervailing governmental interests in conserving fiscal and administrative resources, the Court observed, "these governmental interests are not overriding in the welfare context."
34. The task of distribution branch is to preserve an approximate justice in distributive shares by means of taxation and the necessary adjustments in the rights of property. It imposes and sets restrictions on the property rights with a view to gradually and continually to correct the distribution of wealth and to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity.
35. It is an economic arrangement based on social choice devised with a view to advance the good of the body politic as a whole by invoking some discernable criterion for the just division of social advantages.
36. The policy of the State Government as is evident from the provisions of the statutes referred to hereinabove and various Governmental Orders issued from time to time relating to the assignment of Government lands in favour of weaker and vulnerable sections of the society is obviously to empower them and to secure the larger interest of the community. They are designed to bring about the social and economic revolution that remained to be fulfilled.
37. The policy to assign the Government land is to prevent perpetuation of injustice and feudal order and to prevent concentration of material resources of the community in the hands of chosen few. The assignment of the Government land to the weaker sections of the society is in furtherance of the constitutional obligation imposed upon the State to secure the citizens an adequate means of livelihood. More than 50 per cent of the populatry in India lives in villages and below poverty line. The average agricultural holding of a farmer is hardly enough to sustain himself and his large family. The landless labourers who constitute the bulk of village population are deeply mired in poverty. The State in discharge of its obligation to take positive action for creating socio-economic conditions in which there will be an egalitarian social order with social and economic justice to all, tailored its policies and accordingly provided public assistance to the weaker and vulnerable sections of the society by assigning the lands for cultivation purpose as well as for house sites to have a roof over the head. It is not a charity, but means to provide general welfare to secure the Blessings of Liberty to one and all. The cornerstone of the land reforms policy is the acceptance of the principle that land must belong to the tiller and exploitation of all sorts must be eliminated.
38. The assignment of lands in favour of vulnerable sections of the society was made for the purpose of securing to such sections of the society a life of basic human dignity and in compliance with the directive principles of the State policy. It must follow as a necessary corollary that the assignees acquire the status of constitutional claimants.
About the ownership of the assigned land: What is ownership?
39. The next question that may fall for consideration is whether the ownership rests in the assignee?
40. This question is inevitably linked and intertwined with the restriction on the right to alienate the assigned land by the assignee.
41. The essence of the ownership of a thing is that aid which organized society will, through the Courts as its agents, give one individual, to the exclusion of all others, to take or keep possession of it........but ownership is not a privilege conferred by Government but a right which the Government is organized to protect.
42. Blackstone defines "title to land" as the means whereby the owner of lands has the just possession of his property, and further states that there are several stages or degrees requisite to form a complete title to land, which are actual possession, right of possession, and right of property. (See: Corpus Juris Secundum, Volume LXXIII)
43. Salmond says ownership "denotes the relation between a person and any right that is vested in him." A definition of ownership in law will not be easy. In an interesting article "Some Reflections on Ownership in English Law", by J. W. Cecil Turner, published in the Canadian Bar Review it is observed that the words 'owner', 'ownership', are not strictly terms of art: they are merely descriptive words. Ownership, as stated, is a relation between persons; it is a social institution. As the history of law shows it is a convention of society at any given moment that the privileges termed ownership shall be granted to certain persons and that they shall be protected by law in their enjoyment of them. This convention will not necessarily be the same in all countries at the same time, because their social systems may be different; therefore the relations between its members in respect of property, which each society enforces, will vary accordingly.
44. In Jodha Mal v. Commissioner of Income Tax, , the Supreme Court while considering the question as to who is the owner referred to in Section 9(1) of the Income-tax Act, 1922 observed that Section 9 brings to tax the income from property and not the interest of a person in the property. "A property cannot be owned by two persons, each one having independent and exclusive right over it... ...the word "owner" has different meanings in different contexts. Under certain circumstances a lessee may be considered as the owner of the property leased to him...... The meaning that we give to the word "owner" in Section 9 must not be such as to make that provision capable of being made an instrument of oppression."
45. In Nawab Sir Mir Osman Ali Khan v. Commissioner of Wealth Tax, 1986 (Supp.) SCC 700, the Supreme Court referred to Salmond's - definition of 'ownership': (a) the owner will have a right to possess the thing which he owns; (b) the owner normally has the right to use and enjoy the thing owned: the right to manage it, i.e., the right to decide how it shall be used; and the right to the income from it; (c) the owner has the right to consume, destroy or alienate the thing; (d) ownership has the characteristic of being indeterminate in duration; and (e) ownership has a residuary character. Legal ownership is that which has its origin in the rules of the common law, while equitable ownership is that which proceeds from rules of equity different from the common law. The Courts of common law in England refused to recognise equitable ownership and denied the equitable owner as an owner at all.
46. The question that may inevitably arise is whether the restriction on the right to alienate the assigned land in any manner operates as a clog and makes the assignee less than a full owner ?
47. We have already noticed that the rights in land granted under patta are heritable. That assignee is entitled to be in perpetual possession and enjoyment of the assigned land and such rights devolve upon the legal descendents of the assignee. The possession of the land forever continues to be with the assignee and after his death with his legal heirs. The restriction on the right to alienate obviously has been imposed with the hope that the family of assignee will improve the land and enjoy the benefits arising therefrom. The restriction is imposed in the nature of protection in order to secure the perpetual enjoyment of the land for the benefit of the family of the assignee. The restriction has been imposed in order to prevent alienation of the lands assigned in favour of well to do persons. The legislature having considered that a protective legislation is necessary so as to prescribe the punishment to persons who have purchased such lands made suitable provisions in various enactments referred to hereinabove against the transfers and alienations of assigned lands.
48. The object of the legislation is not to deprive the assignees their right, title and interest in the land. The provisions and the conditions in the pattas were not incorporated to deprive the legitimate ownership rights of the assignees. On the other hand, such provisions were enacted to protect the ownership of the assignees. The legislation is for the benefit of weaker sections of the society, who by themselves are not in a position to hold their property to themselves in the absence of protection. Such alienations by the assignees are not only declared to be null and void, but a further provision also has been incorporated to restore the assigned land to the original assignee or to his legal heir provided that such restoration shall not be more than once.
49. In Manchegowda v. State of Karnataka, , the Supreme Court observed that the legislature no doubt is perfectly competent to provide that such transactions will be null and void and not merely voidable. "Even under the Contract Act any contract which is opposed to public policy is rendered void. The State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country.......the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society........The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction." (Emphasis is of ours).
50. In Lingappa Pochanna Appelwar v. State of Maharashtra, , the Supreme Court while considering the constitutional validity of the provisions of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, a law relating to transfers and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes and restoration of possession thereto to the Scheduled Castes and Scheduled Tribes, observed:
"The present legislation is a typical illustration of the concept of distributive justice, as modern jurisprudence knows it.......Our Constitution permits and even directs the State to administer what may be termed 'distributive justice'. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society....... Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property....... It is axiomatic that a contract is liable to be set aside due to inequality of bargaining power, if someone without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate when his bargaining power is grievously impaired by reason of his own need or circumstances, or by his own ignorance or infirmity, coupled with undue influence or pressures brought to bear on him by or for the benefit of the other." (Emphasis is added).
51. The Supreme Court in the said judgment summarized the scope of the legislation and held that it is "intended and meant as an instrument for alleviating oppression, redressing bargaining imbalance, cancelling unfair advantages, and generally overseeing and ensuring probity and fair dealing. It seeks to reopen transactions between parties having unequal bargaining power resulting in transfer of title from one to another due to force of circumstances and also seeks to restitute the parties to their original position."
52. This is exactly the purpose and intendment sought to be achieved by the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9 of 1977). The various conditions imposed in the patta prohibiting transfers and alienations of assigned lands by the landless poor persons are required to be understood and appreciated in that background. The main object is to declare such alienations void and restore the assigned lands to the assignees. Neither the statutory provisions nor the conditions imposed restricting the alienations were intended to restrict the ownership rights of the assignees. Such restriction, in our considered opinion, cannot be construed as a clog on the right, title and interest of the assignee in the assigned land.
53. In R. Chandevarappa v. State of Karnataka, , the Supreme Court while considering the provisions of the Scheduled Castes and Scheduled Tribes Prohibition of Transfer of Certain Lands Act, 1978 observed:
"The prohibition from alienation is to effectuate the constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and 46 read with the preamble of the Constitution."
54. The Court further observed that the State having implemented the policy of economic empowerment to do economic justice assigned lands to them to see that they remain in possession and enjoy the property from generation to generation,
55. The general freedom of contract, which everyone may possess, may not be available to the assignee and a restraint is put on such freedom in the interest of the assignee himself. It is based on sound public policy founded on the current needs of the community. After all, public policy does not remain static in any given society. It may vary from generation to generation and even in the same generation. The restriction was never intended to curtail the ownership rights of assignee in the assigned land since what has been assigned and given to the assignee is not a gratis or charity.
56. However, the learned Advocate General placed strong reliance upon the decisions of the Supreme Court in Special Land Acquisition and Rehabilitation Officer v. M.S. Seshagiri Rao, , Union of India v. A. Ajit Singh, and Sharda Devi v. State of Bihar, , in support of his submission that such restriction operates as a clog and the State always retains interest in the land acquired and a notification takes effect in regard to the remainder of the interest held by the assignees. The compensation will be payable for the interest held by the assignees excluding the interest held by the Government.
57. In M.S. Seshagiri Rao (supra) certain lands were granted by the Government with a condition that in the event of the Government requiring the land for any reason whatsoever, the grantee shall surrender the land to the Government without claiming any compensation. The Government without exercising that power reserved by the terms of the grant adopted the procedure prescribed by the Land Acquisition Act. The Supreme Court held that the Government has to pay compensation for acquisition of the land under the provisions of the Act. In assessing the compensation payable to the grantees, existence of the condition, which severely restricted their right, could not be ignored. The grantees were entitled to compensation for the land of which the ownership was vested in them. "The measure of that compensation is the market value of the land at the date of the notification, and the measure of that market value is what a willing purchaser may at the date of the notification under Section 4 pay for the right to the land subject to the option vested in the Government." The Supreme Court further observed:
"When the land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land. Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest subject to the clog..... .There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restricted interest."
58. In A. Ajit Singh (supra), the undisputed facts were that on January 25, 1949, the Union of India granted a lease of the Government land for 30 years with a right to further renewal from time to time, up to a maximum period of 99 years in favour of one A. Ajit Singh. Since the said land was required for acquisition, notice was issued on July 23, 1960 terminating the tenancy. That termination order was set aside by the Additional District Judge who held that the lease still subsisted and, therefore, the tenant could not be evicted. Notification under Section 4(1) of the Land Acquisition Act, 1894 was published acquiring the land for planned development of the City of Delhi. The Land Acquisition Officer gave his award on June 6, 1967 determining the compensation. The question was as to what proportion the landlord and tenant were entitled to vis-a-vis the compensation. The Supreme Court granted 60% of compensation to the tenant and 40% to the landlord and held that in such cases the Courts are expected to take into consideration the relevant factors, viz., the duration of the lease, the nature of the right to enjoyment of the leasehold interest and the improvements the tenant made on the land etc. In that context, the Supreme Court observed:
"It is equally settled law that if the Government is the owner of the land, before initiating the acquisition, it is entitled to terminate the lease and take possession of the lands in terms of the lease. Necessarily, in the above case tenant cannot have any right to compensation as he is bound by the terms of the lease. In a case where the Government in spite of the covenant contained in the sale deed, chooses to acquire the land, necessarily the tenancy right of a tenant is required to be assessed and the compensation has to be awarded suitably."
59. It was a clear case where the ownership of the land always vested in the Union of India. It was a case of lease and obviously what could have been acquired was only the subsisting leasehold interest.
60. In Sharda Devi (supra), the Supreme Court while construing the scope and amplitude of interplay between Sections 18 and 30 of the Land Acquisition Act, 1894 observed:
"The State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act...... If it was a Government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it."
61. In Special Land Acquisition Officer, Hosanagar v. K.S.R. Rao, , certain lands were acquired which originally belonged to the Government, but had been granted to various individuals subject to the condition that if it becomes necessary for Government to take possession of the lands for any public purpose, then no compensation would be paid to them. Despite that condition, the Government notified those lands for acquisition under Section 4 of the Land Acquisition Act. The Land Acquisition Officer valued the compensation, but he declined to make an award in respect of the same in view of the condition attached to the original grant. The matter was referred to the Additional District Judge under Section 18 of the Act and the learned District Judge came to the conclusion that the persons in occupation are entitled to get compensation determined by the Land Acquisition Officer. The matter went up in revision to the High Court of Mysore and the same was dismissed. The Supreme Court upheld the view taken by the High Court and held that the view taken by the Land Acquisition Officer that the grantees are not entitled to any compensation in respect of the lands acquired cannot be sustained in view of the decision in M.S. Seshagiri Rao (supra).
62. In none of these decisions, the question as to the nature and scope of clause imposing restriction on alienation of the assigned lands came up for consideration. The issue had never been considered from the perspective and point of view canvassed before us. The question whether the weaker sections of the society to whom the lands were assigned as socio-economic measure were constitutional claimants did not arise for consideration. The question whether such restriction would operate as a clog at all had not been considered. Therefore, the said decisions cannot be applied to a case of assignment of land to landless poor persons in D-Form pattas.
63. It bears no repetition that the Court is duty bound to give effect and ensure constitutional protection in favour of weaker sections of the society based on socio-economic and political criterion. The judiciary is required to weigh the various competing interests in each case and enforce one or the other, as is needed for keeping proper balance in society. The idea of law as an instrument of social engineering i.e., balancing the conflicting interests in society by fulfilling maximum of wants with minimum of frictions, is popularly associated with Dean Roscoe Pound.
64. 'Interest', according to Dr. Pound is, "a demand or desire which human beings either individually or in groups seek to satisfy, of which, therefore, the ordering of human relation in civilized society must take account."
65. For the purpose of understanding the law of today', writes Roscoe Pound:
"I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants - the claims and demands involved in the existence of civilized society - by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods or existence - in short, a continually more efficacious social engineering." (See: Interpretation of Legal History, Page 156.)
66. The judicial creativity is an instrument of making continual adjustment in society. "The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised." (See: Pound, "Administrative Application of Legal Standards")
67. "The whole of the judicial function", says Gmelin, "has been shifted. The will of the State, expressed in decision and judgment is to bring about a just determination by means of the subjective sense of justice inherent in the Judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a positive statute prevents it, and in weighing conflicting interests that is better founded in reason and more worthy of protection should be helped to achieve victory". It would require judicial consciousness not only to law but to other subjects like economics, sociology and philosophy. (See: Sociological Method, translated, 9 Modern Legal Philosophy Series, 131)
68. The Court is under constitutional duty to uphold every measure that translates into living law that preambular promise of social justice reiterated in Article 38 of the Constitution of India. "Judges are not monks or scientists, but participants in living stream of our national life. They must ensure that for a common man our State should mean a welfare State and not a farewell State - farewell to the poor, their prosperity and liberty. (See: Howard Bail; Judicial Craftsmanship or Fiat (1978)).
69. Where two judicial choices are available, the one in conformity with social philosophy of Part IV has preference. We are clear in our preference.
70. In the result we hold that the restriction on the right to alienate the assigned land in no manner operates as a clog depriving the assignee's right, title and interest in the land. The assignee's right in the land is the same as that of a full owner. The restriction has been imposed to protect the ownership rights of the assignee.
71. For the aforesaid reasons, we find it difficult to accept the submissions made by the learned Advocate General. Unconstitutional Conditions:
72. Whether the clause of 'no compensation' in the patta is an unconstitutional clause? Whether the doctrine of 'unconstitutional condition' comes into play ?
73. The question that falls for consideration is whether the assignees are entitled to payment of any compensation at all where the assigned land is taken possession of by the State in accordance with the terms of the grant or conditions of patta? Whether their right to compensation will have to be determined in accordance with the conditions in patta itself?
74. The conditions of assignment inter alia provide; (a) in the event of the land being required for any other public purpose, the land will be resumed and no compensation shall be paid to the assignee; (b) in the event of resumption of the land assigned market value of the purchase money or such share of it as is proportionate to the area resumed will be repaid; and (c) the Government will not however, be liable to pay compensation for any improvement which may have been effected on the land before such resumption.
75. The Government vide G.O. Ms. No. 180, dated 9-2-1984 issued orders to the effect that the Government lands which have been assigned on D-Form pattas to landless poor persons and which are coming under submergence of any major and medium projects shall be resumed by the Government and the assignees of such lands shall be paid compensation at the market value fixed for similar patta lands in the village for which draft notification under Section 4(1) of the Land Acquisition Act, 1894 was first published and thereafter payment of compensation shall entitle the occupants to the cash grants payable to the displaced persons.
76. The policy was once again revised in G.O. Ms. No. 43, dated 23-1-1988 and the Government accordingly ordered: (a) that where lands which have been assigned either under any instruction of Government or under land ceiling laws are being resumed by the Government for public purpose the question of paying compensation will arise only if the assignee had entered into the land and made improvements to the same at considerable cost and effort. If there are such considerable improvements of the land made by the assignees, the compensation should be commensurate with the improvements made; (b) in case where the Government lands were assigned under ceiling laws on concessional market value, such concessional value paid by the assignees be refunded when such lands were resumed; and (c) the same policy shall apply when the lands were resumed for the purpose of providing house sites etc., to the weaker sections.
77. The Government in G.O. Ms. No. 1307 dated 23-12-1993 further revised its policy and accordingly issued instructions directing the payment of lump sum of ex-gratia equivalent to the market value to the assignees whose lands are resumed for the projects and other public purposes and equivalent to value of other private orchards and structures, wells etc., subject to the following conditions:
(a) That the amount is to be treated as ex-gratia.
(b) That the assignees would not be entitled for making references under Section 18 and Section 28-A of Land Acquisition Act to the Courts.
(c) An amount equivalent to 15% for the lands resumed prior to 30-4-1982 and 30% after that date, on the market value payable under Section 23(1) of Land Acquisition Act may be considered for being included in the total ex-gratia payable to the assignees as solatium.
(d) That the assignees will not be entitled for interest or additional market value under the Land Acquisition Act.
(e) That the above conditions shall be made applicable to all the assigned lands resumed on or after 9-2-1984 (i.e. the date of issue of G.O. Ms. No. 180, Revenue, dated 9-2-1984, in supersession of G.O. Ms. No. 43, Revenue (S) Department, dated 23-1-1988).
78. A cumulative reading of the terms and conditions of patta and various instructions issued by the Government from time to time referred to hereinabove makes it abundantly clear that in case of resumption of assigned lands for projects and other public purposes, the compensation payable is to be treated as ex-gratia. The applicability of the provisions of the Land Acquisition Act, 1894 is expressly excluded. It means whenever the assigned lands are taken possession of by the State for a public purpose in accordance with the terms of the grant or patta the compensation payable to the assignee is required to be determined in accordance with the conditions in patta itself.
79. The question that falls for consideration is whether the terms of grant or patta enabling the State to resume the assigned lands for a public purpose without paying compensation equivalent to the market value of the land to the assignees are valid in law? Whether such restrictive conditions or covenants suffer from any constitutional infirmity?
80. The State while directing no compensation be paid equivalent to the market value of the assigned lands never took into consideration and had any regard to the length of time the land held by the grantee or assignee, the social objectives for which the assignment had been made by the State in discharge of its constitutional obligation of providing public assistance to the weaker sections of the society, the improvements or developments upon the land made by the assignees on any legitimate expectation of continuance of the assignment, heritable nature of the right under the grant, etc.
81. The question is whether the 'no compensation clause' imposed in the grant of assignment, in effect, requires the assignee to relinquish some constitutional right? Whether the conditions imposed at the time of assignment are "unconstitutional conditions"?
82. The assignees are constitutional claimants. The constitutional claim cannot be subjected to governmental restrictions or sanctions except pursuant to the constitutionally valid rule or law. There is no legislation enacted by the State compelling it to assign the lands to the weaker sections of the society. The State obviously assigned and granted pattas as a measure of providing public assistance to the weaker sections of the society. The proposition is that as a general rule the State may grant privilege upon such conditions as it sees fit to impose; but the power of the State in that regard is not unlimited, and one of the limitations that it may not impose conditions which require the relinquishment of constitutional rights. That whenever State is required to make laws, regulations or policies, it must do so consistently with the directive principles with a view to securing social and economic freedom so essential for establishment of an egalitarian society. The directive principles of State policy reflect the hopes and aspirations of people of this great country. The fact that they are not enforceable by any Court in no manner reduces their importance. They are nevertheless fundamental in the governance of the country and the State is under obligation to apply them in making laws and framing its policies particularly concerning the weaker sections of the society.
83. Dr. Ambedkar characterised the Directive Principles of State Policy enshrined in Part IV of the Constitution of India as "Instruments of Instructions". He said "whoever captures power will not be free to do what he likes with it. In exercise of it, he will have to respect these "Instruments of Instructions", which are called Directive Principles. He cannot ignore them."
84. The Directive Principles fix the socio-economic goals, which the State must strive to attain. By incorporating unconstitutional clause of 'no compensation' the State kept the damocles sword suspended over the head of the assignee forever. The State cannot act as a private giver.
85. In Ahmedabad St. Xavier's College Society v. State of Gujarat, , Mathew, J., expounded the doctrine of 'unconstitutional condition':
"The doctrine of "unconstitutional condition" means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that 'the petitioner has no right to be a policeman' but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right "to talk politics". The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution."
86. After referring to the decision in Frost and Frost Trucking Co., v. Railroad Comm., of the Supreme Court of United, States (271 US 583), the learned Judge observed:
"....though the State may have privileges within its control which it may withhold, it cannot use a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power."
87. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp. (1) SCC 596, the Supreme Court observed:
"Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic consideration. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.......Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them dignity of their person by providing to them a near decent means of livelihood."
It is further held:
"Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person........Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through properly." (Emphasis is supplied).
88. The purpose of assignment of land either under the Board Standing Orders or under the land reforms legislations to the weaker sections of the society by the State is obviously in pursuance of its policy to empower the weaker sections of the society. Having assigned the land, the State cannot deprive him of the welfare benefit or public assistance. Deprivation of assignee's right to enjoy the property assigned to him may affect his dignity and security. It may adversely affect the equality of status and dignity.
89. It is said that the institution called property guards the troubled boundary between individual man and the State. Even if the assignment granted is considered to be Government largess it should not be able to impose any condition on largess that would be invalid if imposed on something other than a "gratuity". The most clearly defined problem posed by Government largess is the way it can be used to apply pressure against the exercise of constitutional rights. A first principle should be that Government must have no power to "buy up" rights guaranteed by the Constitution. The forms of largess, which are closely linked to status, must be deemed to be held as of right. These interests should be "Vested". If revocation is necessary, not by reason of the fault of the individual holder, but by reason of overriding demands of public policy, perhaps payment of just compensation would be appropriate. The individual should not bear the entire loss for a remedy primarily intended to benefit the community. The benefits granted are based upon a recognition that misfortune and deprivation are often caused by forces far beyond the control of the individual, such as technological change, variations in demand for goods, depressions, or wars. The aim of these benefits is to preserve the self-sufficiency of the individual, to rehabilitate him where necessary, and to allow him to be a valuable member of a family and a community; in theory they represent part of the individual's rightful share in the commonwealth. Only by making such benefits into rights can the welfare state achieve its goal of providing a secure minimum basis for individual well-being and dignity in a society where each man cannot be wholly the master of his own destiny, The New Property - Charles A. Reich, Vol. 73, The Yale Law Journal, Page 733.
90. There is an interesting article in Harvard Law Review - Volume 73 -page 1595:
"Conditioning the extension of a governmental benefit or "privilege" upon the surrender of constitutional rights has long appealed to Congress and the state legislatures as a means of regulating private conduct. This appeal is principally attributable to the superficially compelling logic of the arguments upon which the validity of such conditions is supposed to rest. It is contended that if the Government may withhold the benefit in the first instance, without giving a reason, it may withhold or revoke the benefit even though its reason for doing so may be the individual's refusal to surrender his constitutional rights. This argument is often phrased in syllogistic terms: if the Legislature may withhold a particular benefit, it may grant it in a limited form since the greater power of withholding absolutely must necessarily include the lesser power of granting with restrictions. As a corollary to this argument, the contention is made that the recipient of the benefit is not deprived of a right since he may retain it simply by rejecting the proffered benefit.
Were this logic accepted in all cases, dangerous consequences would follow. The rapid rise in the number of Government regulatory and welfare programs, coupled with the multiplication of Government contracts resulting from expanded budgets, has greatly increased the total benefits extended, thus affording the Government countless new opportunities to bargain for the surrender of constitutional rights. The potential erosion of fundamental liberties through the use of this bargaining technique has prompted the development of the doctrine of "unconstitutional conditions".
Since the Government is under no obligation to grant a benefit, failure to grant may appear to be a positive power to withhold. The arbitrary character of this apparent power seems to justify the withholding or revocation of benefits where the individual fails to comply with conditions requiring the surrender of constitutional rights. But withholding is really a non-exercise of power, and the absence of a requirement that there be constitutional justification for inaction offers no logical support for the positive assertion of an authority to extend benefits and impose conditions which limit the rights of the recipient. In the latter case, the state is asserting its spending power which is limited by the due process clause of the fourteenth amendment. The cases limiting state spending power draw a dichotomy between spending for public and for private uses; however, they seem to imply a broader limitation, namely that the fourteenth amendment limits spending to purposes related to the general welfare. Despite the wide discretion this term suggests, it is at least arguable that state spending power cannot be exercised to "buy up" rights guaranteed by the Constitution. Since federal spending power is explicitly restricted to general welfare purposes, this limitation is even more likely to apply to the national Government. Its application to either governmental entity would require the invalidation of conditions unrelated to the achievement of the benefit's objective, since in such cases the spending power is being exercised to encourage, through subsidies, the non-assertion of constitutional rights, as well as to finance a "welfare" program. Although the individual deprived of the benefit does not have standing to assert this misuse of the spending power in his capacity as taxpayer, he should have it as a beneficiary, since in that capacity he has suffered as immediate and measurable injury; it is evident that, but for the assertion of the right, he would have received the benefit."
91. 'No compensation' clause which virtually enables the State to withdraw the privilege granted without payment of just compensation is an "unconstitutional condition" imposed by the State adversely affects the life, liberty, equality and dignity guaranteed by the Constitution. The assignment of lands to the exploited and vulnerable sections of the society is neither a formality nor a gratis. The privilege granted is with a view to ensure and protect the rights of the exploited sections of the people to live with human dignity free from exploitation. The privilege or largess once granted acquires the status of vested interest. The policy to assign the Government land by the State was obviously designed to protect the socio-economic status of a vulnerable citizenry; its deprivation would be universally perceived as a misfortune.
Right to Life:
92. Section 2(d) of the Protection of Human Rights Act, 1993 (Act 10 of 1994) defines "human rights" that the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.
93. Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood.
94. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
95. Chandrachud, C.J., in Olga Tellis v. Bombay Municipal Corporation, , observed:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21." (Emphasis is supplied).
96. The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
97. In Delhi Transport Corporation v. D. T. C. Mazdoor Congress, , the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority.....Income is the foundation of many fundamental rights.....Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
98. The function of human rights is to protect the individual from the leviathan of the State. A welfare State provides a wide range of benefits to the citizens as of right, but at the same time it enhances the power of administration, since the benefits provided are inevitably administered by Government departments or their agents. A welfare State will continue to grow leading to a more just distribution of the resources resulting in greater Governmental regulation. These developments may add further dimension to the relationship between the individuals and the State. There will be more and more assertions claiming entitlements to basic social benefits from the State in addition to civil and political rights.
99. The deprivation of the assignee's right to payment of just compensation equivalent to the market value of the assigned land may amount to deprivation of right to livelihood. The denial of constitutional claim to receive just compensation after depriving the assignee of his land is impermissible except pursuant to a constitutionally valid rule or law.
100. The contention is that if the Government may withhold the benefit in the first instance itself without giving a reason, it may withhold or revoke the benefit even though its reason for doing so may be the individual's refusal to surrender his constitutional rights. This argument is often phrased in syllogistic terms: if the State may withhold a particular benefit, it may grant it in a limited form since the greater power of withholding absolutely must necessarily include the lesser power of granting with restrictions. The contention often advanced is that the recipient of the benefit is not deprived of a right since he may retain all his rights simply by rejecting the proffered benefit. This contention is fraught with dangerous consequences. The number of 'social choices' programmes resulting from expanded social welfare activities, has greatly increased the total benefits extended, thus affording the Government countless new opportunities to bargain for the surrender of constitutional rights. The potential erosion of fundamental liberties through the use of this bargaining technique has prompted the development of the doctrine of "unconstitutional conditions". Reasonable conditions may be imposed in order to see that the interest in ensuring that the benefit or facility extended to the individual is maintained for the purposes intended, in order to protect the effectiveness of the benefit itself.
101. The recipients of public assistance are not estopped from setting up their fundamental rights as a defence as against "no compensation clause". It is very well settled and needs no restatement at our hands that there can be no estoppel against the Constitution.
In Olga Tellis (supra), the Supreme Court observed:
"The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid an all-powerful State could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits."
102. Therefore, notwithstanding the fact that the recipients had accepted the assignment subject to 'no compensation clause' and that they will not object to the resumption of the assigned lands for a "public purpose, they are entitled to assert that any such action on the part of the authorities will be in violation of their guaranteed fundamental rights. How far the argument regarding the existence and scope of the right claimed by the recipients is well-founded is another matter. But, the argument has to be examined despite the concession.
103. In the matter of distribution of material resources of the community to the vulnerable sections of the society by the State in furtherance of its constitutional obligations no argument can be heard from the State contending that the recipient of the benefit may either accept with the restrictions or not to accept the benefit at all. The whole idea of distributive justice is to empower the weaker sections of the society and to provide them their share of cake in the material resources of the community of which they were deprived from times immemorial for no fault of theirs. Having resolved to extend the benefits as a welfare measure, no unconstitutional condition can be imposed depriving the recipients of the benefits of their legitimate right to get compensation in case of taking over of the benefit even for a valid public purpose. The recipients cannot be at the mercy of the State forever.
104. Justice K.K. Mathew, in his Democracy, Equality and Freedom has observed mat property is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind. The learned Judge stated:
"In a society with a mixed economy, who can be sure that freedom in relation to property might not be regarded as an aspect of individual freedom? People without property have a tendency to become slaves. They become the property of others as they have no property themselves. They will come to say: 'Make us slaves, but feed us.' Liberty, independence, self-respect, have their roots in property. To denigrate the institution of property is to shut one's eyes to the stark reality evidenced by the innate instinct and the steady object of pursuit of the vast majority of people. Protection of property interest may quite fairly be deemed in appropriate circumstances an aspect of freedom.
There is no surer way to give men the courage to be free than to insure them a competence upon which they can rely. This is why the Constitution-makers wanted that the ownership of the material resources of the community should be so distributed as to subserve the common good. People become a society based upon relationship and status."
105. In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, 1995 Supp (2) SCC 549, the Supreme Court observed:
"Economic empowerment to the poor, Dalits and Tribes, is an integral constitutional scheme of socio-economic democracy and a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, Dalits and Tribes. The State has evolved, by its legislative and executive action, the policy to allot lands to the Dalits and Tribes and other weaker sections for their economic empowerment. The Government evolved two-pronged economic policies to render economic justice to the poor. The Planning Commission evolved policies like DRDL for economic empowerment of the weaker sections of the society; the Dalits and Tribes in particular. There should be short-term policy for immediate sustenance and long-term policy for stable and permanent economic empowerment. All the State Governments also evolved assignment of its lands or the lands acquired under the ceiling laws to them. Appropriate legislative enactments are brought on statute books to prevent alienation of the assigned lands or the property had under the planned schemes, and imposed prohibition thereunder of alienation, declaring any conveyance in contravention thereof as void or illegal and inoperative not to bind the State or the assignee. In case the assignee was disqualified or not available, on resumption of such land, the authorities are enjoined to resume the property and assign to an heir or others eligible among the Dalits and Tribes or weaker sections in terms of the policy. The prohibition is to effectuate that constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and 46 read with the Preamble to the Constitution. Even in respect of private sales of the lands belonging to tribes, statutes prohibit alienation without prior sanction of the competent authority."
106. Be it noted, the land by way of assignment is let for purposes of agriculture or for purposes ancillary thereto, for personal occupation and cultivation by the agricultural labourers and others belonging to weaker sections of the society. It may be lawful for the State to acquire any portion of such land as is within the ceiling limit but not without providing for compensation at a rate which shall not be less than the market value thereof. The acquisition of such land even for a public purpose without payment of compensation shall be in the teeth of Article 31-A of the Constitution of India.
107. The masses have suffered socio-economic injustice too long and been separated by the, poverty curtain too strong that if peaceful transformation of the nation into an egalitarian society were not achieved, chaos, upsurge may destroy the peaceful progress and orderly development of the society.
108. In the result, we hold that 'no compensation' clause, restricting the right of the assignees to claim full compensation in respect of the land resumed equivalent to the market value of the land, is unconstitutional. The 'no compensation clause' infringes the fundamental rights guaranteed by Articles 14 and 31-A of the Constitution. We are conscious that Article 21 essentially deals with personal liberty. But in cases where deprivation of property would lead to deprivation of life or liberty or livelihood, Article 21 springs into action and any such deprivation without just payment of compensation amounts to infringement of the right guaranteed thereunder. The doctrine of 'unconstitutional conditions' applies in all its force.
109. In the circumstances, we hold that the assignees of the Government lands are entitled to payment of compensation equivalent to the full market value of the land and other benefits on par with full owners of the land even in cases where the assigned lands are taken possession of by the State in accordance with the terms of grant or patta, though such resumption is for a public purpose. We further hold that even in cases where the State does not invoke the covenant of the grant or patta to resume the land for such public purpose and resorts to acquisition of the land under the provisions of the Land Acquisition Act, 1894, the assignees shall be entitled to compensation as owners of the land and for all other consequential benefits under the provisions of the Land Acquisition Act, 1894. No condition incorporated in patta/deed of assignment shall operate as a clog putting any restriction on the right of the assignee to claim full compensation as owner of the land.
110. In such view of ours, the view taken by this Court in Bondapalli Sanyasi (supra) that whenever the land is taken possession of by the State invoking the terms of the grant, the right of an assignee to any compensation may have to be determined in accordance with the conditions in patta itself is unsustainable. With due respect, we are unable to agree with the view taken in this regard. We are also unable to agree with the view taken that the assignee shall be entitled to compensation in terms of the Land Acquisition Act not as owner but as an interested person for the interest he held in the property.
111. We accordingly overrule the Larger Bench judgment in Bondapalli Sanyasi (supra).
112. The reference is accordingly answered.
113. The Court graciously acknowledges the invaluable assistance rendered by Sri Challa Sitaramaiah, learned Senior Counsel, who readily agreed to assist the Court at its request as amicus curiae.
114. The matters shall be listed before the appropriate Bench for their disposal in accordance with law.