Jharkhand High Court
Felix Tamba vs State Of Jharkhand & Ors on 25 October, 2008
Equivalent citations: AIR 2009 JHARKHAND 1, 2009 (1) ALL LJ NOC 199, (2008) 71 ALLINDCAS 961 (JHA), 2008 (71) ALLINDCAS 961, 2009 (1) ALJ (NOC) 199 (JHAR.) = AIR 2009 JHARKHAND 1, 2008 (3) AIR JHAR R 1011
Author: M. Y. Eqbal
Bench: M. Y. Eqbal
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
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W.P. (PIL) No. 2313 of 2008
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Felix Tamba ... ... ... ... ... ... Petitioner
Versus
The State of Jharkhand and others ... ... ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE M. Y. EQBAL
THE HON'BLE MR.JUSTICE D.K.SINHA
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For the Petitioner: M/s. Manoj Tandon, S.S.Kr.,N.K.Singh
For the Respondents: M/s. P.K. Prasad, (A.G.), Dr. J.P. Gupta, G.Kr.
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Reserved on: 16.10.2008 Pronounced on: 25th October, 2008
M.Y. Eqbal, J. This application by way of public interest litigation has been filed
by a member of Schedule Tribe for quashing the circular of the Govt. of
Jharkhand as contained in letter No.7/Bhumi/Bandhak-Ranchi-
08/07/2623Ra. dated 30.7.2007 issued under the signature of respondent no.2, Secretary, Revenue and Land Reforms Department, Government of Jharkhand, Ranchi whereby it has been notified that no person who is a member of Schedule Tribe community can obtain loan for construction of his house and for the purpose of education by mortgaging his land.
2. In the writ petition, it is alleged that the authorities of the Government are acting totally against the interest of the Schedule Tribe community in general by issuing such notification/circular restraining all the Banks in the entire State of Jharkhand from sanctioning loan to the members of Schedule Tribe community against the mortgage of their land for the purpose of construction of house and/or for the purpose of education.
3. Petitioner's case is that such notification has been issued on the basis of opinion given by Mr. S.B. Gadodia, learned Advocate General, Jharkhand in the light of the decision of Single Bench of this Court in the case of "Mandu Prakhand Sahakari Grih Nirman Sahyog Samiti Ltd & Anr.Vs.State of Biharr"(2004)1 JCR-402. Petitioner's further case is that as a result of the impugned circular of the Government, no person belonging to Tribal Community is entitled to take loan from any bank for educational purposes or for construction of his house against mortgage of his land.
2 W.P. (PIL) No. 2313 of 20084. No counter affidavit has been filed by the respondent-State. However, Mr. Gadodia, learned Advocate General, as he then was at the first hearing, submitted that the impugned notification/circular was issued on the basis of opinion given by him. Learned Advocate General submitted that he has already given fresh opinion suggesting the Government for withdrawal of the impugned circular and the Government has decided to withdraw the aforesaid circular. By order dated 18.9.2008, at the request of the petitioner many Banks were impleaded as party -respondents. One of them, namely, Bank of India filed counter affidavit wherein it is stated that in the light of the provisions of the Chota Nagpur Tenancy Act as well as the impugned circular issued by the Government of Jharkhand, respondents-Banks have been strictly following the same and are not allowing any loan to the members of the Schedule Tribe against mortgage of their lands except providing housing loan to the staff belonging to the tribal community.
5. At the outset, I would like to quote the impugned circular dated 30.7.2007 which is as under: -
">kj[kaM ljdkj jktLo ,oa Hkwfe lq/kkj foHkkx i=kad&Hkwfe ca/kd&jkWaph&08/2007 2623/jk0 is"z kd] fo".kq dqekj] lfpoA lsok esa] lHkh mik;qDr] >kj[kaM A fo"k;%& x`g fuekZ.k ds ,ot esa Hkwfe ca/kd j[kusa ds laca/k esa A izlax%& mik;qDr] jkWaph dk i+=kad & 1647 fnukad & 16.1.07 egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd vuqlwfpr tutkfr ds ljdkjh lsodksa ,oa xSj ljdkjh vuqlwfpr tutkfr ds lnL;ksa dks x`g fuekZ.k ds ,ot esa Hkwfe ca/kd j[kusa dk ekeyk mDr izlax ds dze esa fopkjk/khu Fkk ftl ij fof/k foHkkx ds ijke'kZ ds dze esa fo)ku egkf/koDrk dh Li"V jk; fuEufyf[kr gS% & "I have gone through the notings as well as papers available in the file. I may indicate that identical issue was raised in the case of Mandhu Prakhand Sahkarn Grih Nirman Sahyog Samiti Ltd. Vrs.State pf Bihar and Ors, judgment of which is reported in 2004(1) JCR 402(Jhr.) In the said judgment, various provisions of C.N.T.Act have been take into consideration including sections 46,47 and 49 of the said Act. After considering various aspects of the matter, it has been held that a member of the schedule tribes cannot take loan either for education and/or construction of house either by-mortgaging his raiyati land and/or by transferring his such land in favour of any Bank, Co- operative societies etc."3 W.P. (PIL) No. 2313 of 2008
2. mDr fof/k lEer eUrO; ds vkyksd esa foHkkxh; i=kad 1802/jk0 fnukada&01.06.05 dks bl lhek rd la'kksaf/kr fd;k tkrk gS fd vuqlwfpr tutkfr ds lnL; Hkwfe ca/kd j[k dj x`g fuekZ.k/f'k{kk gsrq cSad ls _.k izkIr ugha dj ldrsa gSaA
3. ;g vkns'k rRdkfyd izHkko ls izHkkoh gksxk A fo'oklHkktu] g0@& (fo".kq dqekj) lfpo"
6. From reading of the aforesaid circular, it is manifestly clear that the circular has been issued on the basis of decision of the learned Single Judge referred therein. In the said decision, the fact of the case was that petitioner No.2 in the years 1966 and 1967 by three registered sale deeds purchased the land from recorded raiyats belonging to the members of Scheduled Castes. In abundant precaution, application was filed before the Deputy Commissioner, Hazaribagh under Section 46(1)(c) for permission to sell about 3.13 acres in favour of the Society. The Society, in turn, sold and transferred the land in favour of its members of other communities by executing 35 registered sale deeds upon which most of them have constructed their residential buildings. Subsequently, the Deputy Commissioner recalled the order granting permission to transfer the land. Petitioners-Society challenged the said order in the High Court on the ground that the Deputy Commissioner had no power to review the order. The High Court disposed of the writ petition by directing the respondents to take appropriate steps in accordance with law for setting aside the order. The matter again came to the High Court. The learned Single Judge while deciding the writ petition discussed Section 46(1)(c) and Section 47(bb) and held that since the petitioners-Society was set up for providing residential lands to its members, transfer made in favour of the Society is against the restrictions contained in the aforementioned provisions of the Act.
7. On reading of the decision of the learned Single Judge vis-à-vis the aforesaid notification, prima facie we are of the view that learned Single Judge has not held that a raiyat belonging to a member of Scheduled Caste or Scheduled Tribe cannot mortgage their raiyati lands in favour of the banks or financial institutions and secure loan for education purposes or for construction of their houses.
8. Be that as it may, the impugned circular whether violates the rights of the members of the Scheduled Tribes, the question needs to be decided 4 W.P. (PIL) No. 2313 of 2008 despite the fact that the then learned Advocate General submitted that he had given a fresh opinion for withdrawal of the circular.
9. Because of change of Government, Mr. P.K. Prasad, learned Senior Advocat has been appointed as Advocate General, we have also heard him. Mr. P.K. Prasad, the present Advocate General, very fairly submitted that Section 46(1)(c) does not restrict mortgage of the land belonging to Scheduled Tribes with the banks for securing loan for the purpose of education and construction of house.
10. I would first like to refer the relevant portion of Section 46 of the Chotanagpur Tenancy Act which reads as under: -
"46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof -
(a) by mortage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent :
Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgages be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that -
(a) an occupancy-Raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-Raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate.
(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and 5 W.P. (PIL) No. 2313 of 2008
(d) any occupancy-Raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person.
(2) A transfer by a Raiyat of his right in his holding or any portion thereof under sub-section (1) shall be binding on the landlords.
(3) No transfer in contravention of sub-section (1) shall be registered or shall be in any way recognized as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction."
(4) ... ... ... ...
(5) ... ... ... ...
(6) ... ... ... ...
11. The words "or if the mortgagee be a registered society, as defined in the Co-operative Societies Act, 1912, for any period not exceeding fifteen years" in the proviso to sub-section (1), and the sub-section (6) were inserted by the Chota Nagpur Tenancy (Amendment) Act, 1920. In the report of the Select Committee on the Bill it was stated--
"Experience has shown that the present limit of seven years for a bhugut bundha mortgage of a holding is too short to enable the raiyat to pay off to a registered co-operative society the principal and interest of a loan made to him by the society on such a mortgage, and at the same time to maintain himself from the produce of the holding of which he is retained in possession under the mortgagee, and we have accordingly extended the maximum period in such a case from seven to fifteen years.
There is evidence that efforts, not wholly unsuccessful, at any rate in the more advanced areas, have been made to evade the most salutary prohibition under Section 46 (1) against transfer by a raiyat of his right in his holding or part thereof, the usual method being by surrender by the raiyat to the landlord, on terms agreed upon, of the land which it is desired to transfer. The right of free transfer was restricted from considerations of public policy and of the advantage to the raiyat, and the result was not contemplated that a part of the tenant's property would thereby be transferred to the landlord who omniun consensu had no manner of claim to it. Opinions are not unanimous but among non-officials at least the prevalent view is in favour of relaxing the prohibition against transfer of holdings, and we have come to the conclusion that some degree of relaxation of a very conservative character is expedient. The difficulties are, however, very great, and in our view the position can best be met by the cautious provisions which we have introduced in the new sub-section (6). Conditions in Chota Nagpur, though everywhere comparatively backward, present considerable variation. For instance, whereas the utmost relaxation of the prohibition of transfer which could be contemplated in the case of Hos, Mundas and their congeners, or of Oraons or Bhuiyas might well be transferred, or even restricted transfer, between members of the tribe, the restriction which, after full inquiry under the safeguards provided, the Local Government will ascertain to be necessary in the case of non-agricultural castes or the more advanced agricultural castes or communities, may well be considerably less and may well vary from caste to caste or even in respect of the same caste in different areas. Accordingly, power is conferred on the Local Government, which has access to the best information and may be relied upon to 6 W.P. (PIL) No. 2313 of 2008 proceed with caution and with due regard to local and tribal conditions, to declare by rules that specified forms of transfer may be made by special raiyats subject to specified restrictions, and it is laid down that sub sections (1), (3) and (4) will not apply to such transfers. It is, however still essential to maintain intact the statutory bar to transfer by an aboriginal to a non-aboriginal, and it is necessary to provide, as has been done in clause (b) of the sub-section, a speedy method of modifying rules or portions thereof, from which have emanated results contrary to expectation or otherwise disquieting, and of coming to the rescue where experience shows the original safeguards or restrictions to be inadequate."
12. From reading of the provisions of Section 46 of the Act, although sub-section (1) of Section 46 restricts transfer by a raiyat of his holding by way of mortgage, lease, sale and gift, but the proviso to sub-section (1) is an exception which provides that a raiyat may enter into a bhugut bundha of his holding or any portion thereof for any period not exceeding seven years. It further provides that if a mortgagee is a Society, then such period shall be extended to fifteen years. Under the bhugut bundha mortgage, the raiyat is allowed to cultivate the land himself as the agent of the mortgagee and to appropriate the surplus produce, after payment of annual instalment. The object behind the restriction put in the Section is that the raiyat may not come under the clutch of private money lenders. In our view, therefore, a raiyat belonging to a member of Scheduled Caste or Scheduled Tribe may enter into a bhugut bundha mortage of his holding with the Society registered under the Bihar and Orissa Cooperative Societies Act or with the nationalized banks.
13. Section 46(1)(c) was inserted by Chotanagpur Tenancy (Amendment) Act, 1975. The aim and object behind inserting the aforesaid proviso is to safeguard the interest of agricultural community by transferring their raiyati lands by way of sale, lease, gift and unconditional mortgage. In our view, therefore, if the raiyat mortgages his raiyati interest in the manner provided under the proviso of sub-section (1) of Section 46 i.e. mortgage for a period not exceeding fifteen years, w here the mortgagee is a bank, then it will not violate the provisions of Section 46(1)(c) of the Act.
14. Section 47 put a restriction on sale of raiyat's right under order of the Court, which reads as under: -
47. Restriction on sale of raiyat's right under order of Court.--
No decree or order shall be passed by any Court for the sale of the right of 'raiyat' in his holding or any portion thereof nor shall any such right be sold in execution of any decree or order :
Provided as follows : -7 W.P. (PIL) No. 2313 of 2008
(a) any holding or portion of holding may be sold, in execution of a decree of a competent Court, to recover an arrear of rent which has accrued in respect of the holding ;
(b) any holding or portion of a holding may be sold, under the procedure provided by the Bihar and Orissa Public Demands Recovery Act, 1914 (B. & O. Act 4 of 1914] for the recovery of a loan granted under the Land Improvement Loans Act, 1883 (19 of 1883), or the Agriculturist Loans Act, 1884 (12 of 1884) or otherwise by the State Government ;
(bb) any holding or portion of a holding, belonging to any occupancy-raiyat may be sold, under the procedure provided by the Bihar and Orissa Public Demands Recovery Act, 1914 (Bihar and Orissa Act IV of 1914), for the recovery of loan granted by a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or by the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (5 of 1970) or by a company or a corporation owned or in by which not less than fifty-
one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government and partly by the Central Government and which has been set up with a view to provide agricultural credit to cultivators so, however, that if such holding or portion thereof belongs to a member of the Scheduled Tribes or Scheduled Castes, it shall not be sold to any person who is not a member of the Scheduled Tribes, or, as the case may be, of the Scheduled Castes."
(c) Nothing in this Section shall affect the right to execute a decree for sale of a holding passed, or the terms of conditions of any contract registered before the first day of January, 1903.
Explanation I. - Where a holding is held under joint landlords, and a decree has been passed for the share of the rent due to one or more, but not all, of them, proviso (a) does not authorize the sale of the holding or any portion of the holding in execution of such decree.
Explanation II. - Proviso (c) does not render valid any document which is other illegal or invalid, or authorize a court to take judicial cognizance of any such document."
15. From reading of the aforesaid provision, it is manifestly clear that this Section put a bar in the sale of a right of raiyat in his holding in execution of any decree or order. This Section is corollary to Section 46 which put a restriction in the transfer of right of a raiyat in his holding subject to certain exception.
16. Section 47(1)(bb) was inserted by Chotanagpur Tenancy (Amendment) Act, 1976. On careful reading of the aforesaid provisions, it appears that such restriction of sale has been relaxed in cases where a right of a occupancy raiyat in his holding is sold for the recovery of loan granted by the Society or bank, but such sale in execution of the order 8 W.P. (PIL) No. 2313 of 2008 shall not be made in favour of any person who is not a member of scheduled tribe or scheduled caste as the case may be. Again the object of this newly inserted provision is that in no case, the right of a raiyat who is a member of scheduled caste or scheduled tribe in his holding may go in the hands of the persons who are not the members of scheduled caste or scheduled tribe. In any case, therefore, the raiyat interest of a member of scheduled caste or scheduled tribe in case of a sale in execution of mortgage decree, the holding shall remain in the hands of the members of scheduled caste or scheduled tribe.
17. In the case of "Somra Uraon & Anr.Vs..Mostt.Somari Urain & Ors"(1964)BLJR-227, a question came for consideration before a Division Bench of the Patna High Court is as to whether the decree holder are entitled to have a receiver appointed for the agricultural land belonging to Schedule Tribe in the district of Ranchi by way of equitable execution. Considering Section 46 of the Act the Division Bench (V.Ramaswami,C.J. and N.L. Untwalia, J) observed :
"It is manifest that the language employed by the Legislature in Sec.46 of the Chota Nagpur Tenancy Act is different and there is no absolute bar or interdiction on the alienation of holdings in Chota Nagpur under the provisions of the Chota Nagpur Tenancy Act. Sec.46 of the Chota Nagpur Tenancy Act entitles a raiyat to transfer his holding of any portion thereof b y mortgage or lease for a period not exceeding five years. Under the proviso to this Section a raiyat is also entitled to enter into a bhugut bandha mortgage of his holding of any portion thereof for a period not exceeding seven years, or if the mortgagee be a society registered under the Bihar and Orissa Co-operative Societies Act for any period not exceeding fifteen years. It is manifest that the Chota Nagpur Tenanxcy Act enables a raiyat to make a temporary alienation of land by way of mortgage or lease for a limited period mentioned in the statue. In view of this marked distinction in the language of the Chota Nagpur Tenancy Act the Santhal Parganas Regulation it is obvious that the principle laid down by the Full Bench in Surendra Prasad Singh. Vs. Tekait Singh cannot govern the present case. For the same reasons the principle of law laid down by the Supreme Court in Union of India Vs. Srimati Hira Devi and another will not govern the present case. It was pointed out by the Supreme Court in that case that the prohibition against assignment or attachment of provident fund in the Provident Funds Act was based on the grounds of public policy, and the interdiction imposed by the statute was absolute and, therefore, the judgment debtor cannot be permitted to get the provident fund indirectly by means of appointment of a Receiver. In our opinion the present case is governed by the principle laid down by the Full Bench of the Lahore High Court in Sardarni Datar Kaur Vs Ram Rattan and others. It was held by the Full Bench in that case that the Civil Court in execution of a decree can order a temporary alienation of the land of a judgment-debtor who is a member of an agricultural tribe, because Sec.16 of the Punjab Alienation of Land Act prohibited only a sale and not a temporary alienation of such land.
For these reasons we hold that the Civil Court gas properly appointed a Receiver in the present case by way of equitable 9 W.P. (PIL) No. 2313 of 2008 execution of a decree; but in view of Sec.46 of the Chota Nagpur Tenancy Act the Civil Court cannot appoint a Receiver for a period exceeding seven years which is the period beyond which the raiyat is unable to enter into a mortgage by virtue of that Section."
18. In the case of Ramdayal Sahu Vs Hari Shankar Lal Sahu & Ors [(1967) BLJR 78], a Full Bench of the Patna High Court considered the following the question of law :
(1) Whether the restrictive provision in clause © of the second proviso to Sec.46(1) of the Chota nagpur Tenancy Act to the effect that a transfer of his occupancy holding by a raiyat of a class other than schedule tribes, Scheculed castes or backward classes can be made only to a resident within the local limits of the district in which the holding is situate is valid and legal in view of Art.19(1)(f) of the Constitution ?
(2) If Sec. 46(1)( c) is struck down as invalid to the above extent whether Sec.47 can stand as valid in general terms relating also to the occupancy raiyati interest of persons who are other than members of scheduled Tribes, scheduled castes or backward classes ?
The Full Bench after discussing in details the provisions of Section 46 and 47 of the Act answered as under: -
"Question no.1- Section 46(1) ( c) of the Act in so far as it restricts the sale of a raiyati holding belonging to a person of a class other than scheduled tribes, scheduled castes and backward classes to the resident within the district in which the holding is situate must be held to be invalid as also of the purchaser under Art.19(1)(f) of the Constitution.
Question no.2- This question also must be answered against the respondents and it must be held that Sec.47 of the Act, in so far as it puts a general restriction upon the power of a Court to put to auction sale in execution of a decree even the agricultural land of persons belonging to classes other than the scheduled Tribes, scheduled castes and backward classes, is invalid as this law has now become incompatible, in the form it stands, with Art.19(1)(f) of the Constitution and must be declared to be ultra vires to the extent indicated above.
19. In the case of "Sasthi Pado Sekhar and Anr.Vs.Anandi Chaudhary and Ors"(1967) AIR Patna-25, a Division Bench of the Patna High Court while hearing the appeal considered a question raised at the Bar. It was urged that after commencement of the Constitution of India the provisions of S.46 of the Chota Nagpur Tenancy Act, 1908 , hereinafter referred to as 'the Act' or, in any event proviso ( c) to sub-Section (1) of S.46 of the Act was ultra vires provisions of the Constitution in so far as it was inconsistent with the fundamental right to property enshrined in Art.19 (1)(f) of the Constitution and the restriction on the right of transfer imposed under the said proviso not being in the interests of the general 10 W.P. (PIL) No. 2313 of 2008 public was not saved by Art.19(5) of the Constitution and was thus liable to be struck down, and, therefore, even if it were assumed that the plaintiff was not a resident of any place within the local limits of the district of Hazaribagh on the date when Ex.1 was executed in his favour, yet the sale deed conferred good title on him and his suit should have been decreed.
Answering the question, their Lordship observed :
"9. Before examining the reasonableness or otherwise of the restriction imposed on the right of transfer under proviso (c) to sub-Section (1) of Section 46 of the Act ,it may be pointed out that the expression "interests of the general public" in Cl.(5) of Art. 19 is very wide, and the State is always competent to impose restrictions under Cl.(5) on grounds of social and economic policy. The right to freedom of citizens to acquire, hold and dispose of properties may thus be circumscribed on such grounds as well. It may further be clarified that the mere fact that the impugned provision does not directly affect the citizens of other States of the Republic of India or even on the other divisions of the State of Bihar itself does not , in any opinion, necessarily imply that the restrictions imposed thereunder are not in the interests of the general public. Legislation affecting a particular class or a particular area would, quite obviously, directly affect the members of that particular class or the inhabitants of that particular area only , but if the object of the legislation was the protection and safeguarding of the interest of a particular class or of persons residing in a particular area, or , the object was the removal of some serious abuse or grievance or discontent of that particular class or particular area, it must be held that such a legislation indirectly affects the public in general. It can hardly be disputed that a legislation for securing one or another of the objects referred to in Clauses (b) and (c ) of Article 39 of the Constitution must be held to be a legislation in the interests of the general public.
(9A) Now, one of the objects behind the impugned provision and the restriction contend therein appears to be to shut out and aliminate absentee or outside owners of agricultural lands situate in Chota Nagpur. Such persons, not being residents of the district within the local limits of which the holding concerned was situate, are extremely unlikely to take the optimum interest necessary for the agricultural development of those lands. Once, however, they become residents of the district or of contiguous police stations, it may be presumed that they have thrown in their lot with the other permanent agricultural tenants of the area concerned and will be as much interested in the development or Conservation of those lands as the other residents. This is quite clearly in the interests of the general public. Further, it is common knowledge that the rich mineral resources of Chota Nagpur, particularly its Mica and Coal deposits, have attracted a large number of persons with ample resources from different parts of India with the primary object of exploiting those minerals. Such persons are generally equipped with greater resources than the indigenous population; and in order to protect the comparatively weaker Section, namely, the indigenous population, from the stronger, namely, the persons who have come in Chota Nagpur with large resources, a restriction of the type laid down in the impugned proviso serves, in my opinion, to a large extent to prevent the latter Section of the people from grabbing the agricultural lands of the area by taking advantage of the comparative poverty of the indigenous Section and thus in the 11 W.P. (PIL) No. 2313 of 2008 result reducing the agricultural occupancy raiyats into a mass of landless labourers. From this point of view as well, the restriction imposed and challenged in the present case must be held to be in the interest of the general public.
After all, it cannot be denied that the Constitution, after recognizing the rights as to property in sub-clauses (f) and (g) of Article 19 thereof, proceeds to make it perfectly clear that these rights are not absolute and cannot be treated as ends in themselves. The Constitution itself envisages those rights being co- related certain inevitable obligations imposed on all the citizens of India in the interest of achieving socio-economic justice, and , if a certain legislative provision, as indicated above, seeks to promote and safeguard the interests of the agricultural community, comparatively weaker than the numerous persons surrounding them or living with them temporarily, as effectively as it may, by preventing the former from loosing their agricultural lands to the latter and thus becoming landless labourers, it must be held that the provisions is in the interests of the general public. I am, accordingly, satisfied that the impugned proviso, namely, proviso(
c) to sub-sections (1) of Section 46 of the Act is not ultra vires the Constitution and is fully saved under Article 19(5) of the Constitution."
20. In the case of Lakhia Singh Patra & Others Vs Jotilal Aditya Deo and others [(AIR) 1968 Patna 160], a Division Bench of the Patna High Court while discussing the object and purpose of enactment of Section 46 of the Chota Nagpur Tenancy Act , held as under :
"10. Several decisions were cited in support of the respective contentions. In Barie Santhal.Vs. Fakir Santhal, AIR 1924 Pat 793 (2) Bucknill, J. held that it was open to a tenant under the Chota Nagpur Tenancy Act to surrender his holding for a pecuniary consideration to the landlord and, inasmuch as a surrender is not a transfer within the meaning of section 46, even where a third party had paid consideration to a tenant as a result of which the tenant had agreed with the landlord to surrender his holding while the landlord had agreed to re--settle the property with the person who had given the consideration to the outgoing tenant, this circuitous arrangement could not in law be regarded as definitely illegal. This decision was considered by Kanhaiya Singh J. in Golap Gaddi v. Rampariksha, AIR 1958 Pat. 553 , and his Lordship took a different view. It was held by his Lordship that a surrender under section 72 of the Act was lawful and that, after having accepted the surrender, the landlord is perfectly at liberty to re-settle the holding with some other person or take the land into cultivation himself. But his Lordship further observed that in the case where both the surrender and the subsequent settlement of the land amount to one transaction, the main object of which was to by-pass the statutory provisions of section 46, the transaction becomes intrinsically Invalid, although considered separately the surrender and the settlement may have the appearance of legality.
In this connection, his Lordship relied on the decision of the Judicial Committee in Moti Chand v. Ikram Ullah Khan, AIR 1916 P.C. 59. In that case, the defendants had sold certain zamindari to the plaintiffs and in the sale deed the defendants contracted to relinquish their sir and khudkasht lands and give possession thereof to the plaintiffs or in default the defendants would be liable to damages. In pursuance of the agreement contained in the sale deed, the defendants executed a deed of 12 W.P. (PIL) No. 2313 of 2008 relinquishment in favour of the plaintiffs of their claim and right in all their sir lands in the mauzas conveyed. They, however, refused to file the deed of relinquishment in the Revenue Court and refused to quit possession of the sir lands of which they continued in possession as x-proprietary tenants. Hence, a suit for damages and breach of the contract was brought. The main question before their Lordship of the Judicial Committee was whether the agreement to relinquish and surrender their sir lands was lawful. Sub section (1) of section 10 of U. P. Act II of 1901 provided that, on transfer of the proprietary rights by sale, the ex-proprietor shall become a tenant with a right of occupancy in his sir lands and in the land which he had cultivated continuously for twelve years at the date of the transfer and shall be entitled to hold the same at a rent determined in the manner laid down therein. By sub-section (4) of section 10, such a tenant was called an "ex--proprietary tenant. Section 20 of the Act prohibited transfer of the interest of an ex- proprietary tenant in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom as co-sharers in the tenancy such right originally arose or who have become by succession co-sharers therein. Section 83 of the said Act conferred upon the tenant a right to surrender his holding to the landlord at the end of an agricultural year. Sub section (3) of section 83 provided that nothing in that section shall affect any arrangement by which a tenant and his landlord might agree to the surrender of the whole or any portion of the holding. On these facts their Lordships of the Privy Council observed inter alia:
'The policy of the Act is not to be defeated by any ingenious device, arrangements or agreements between a vendor and a vendee for the relinquishment by the vendor of his 'sir land or land which he has cultivated continuously for twelve years at the date of the transfer for a reduction of purchase money on the vendors failing of refusing to relinquish such land. All such devices, arrangements and agreements, are in contravention of the policy of the Act and are contrary to law and are illegal and void, and cannot be enforced by the vendee in any civil court or in any court of revenue". Kanhaiya Singh, J observed therefore that the policy of the Legislature in enacting section 46 of the Chota Nagpur Tenancy Act was, more or less, the same, namely to secure to the tenants inhabiting the area to which the Act applied their rights in their occupancy holding and to protect them from the avaricious money-lenders: and with due respect we agree with him."
21. From the discussions made herein above, we have no hesitation in holding that a raiyat belonging to a member of scheduled caste or scheduled tribe can mortgage his raiyati right in his holding by way of mortgage for a limited period as prescribed under the proviso to Section 46(1) of the Act for securing loan from the nationalized banks for the purpose of constructing their houses in order to live with dignity.
22. In the aforesaid premises, the impugned circular issued by the respondents putting an absolute bar thereby depriving the members of scheduled caste and scheduled tribe taking loan from the nationalized banks for the purpose of constructing their living house is wholly arbitrary and unjustified.
13 W.P. (PIL) No. 2313 of 200823. This Court shall take judicial notice of the fact that because of absolute restriction of alienation of land by the occupancy raiyat of the aforementioned community under the aforementioned provisions, the members of that community who have their land in the developed town and city in the State of Jharkhand are still residing in small huts and kutcha houses standing on the riayati lands because of financial constrain. If the peoples of these communities are not allowed to lead a dignified life in a proper constructed house by taking financial assistance from the banks against creating mortgage for a limited period, they shall be deprived of their right to enjoy their property.
24. Robson in his book 'Welfare State and Welfare Society' has stated at p.11:
"The ideas underlying the welfare State are derived from many different sources. From the French Revolution came notions of liberty, equality and fraternity. From the utilitarian philosophy of Bentham and his disciples came the idea of the greatest number. From Bismarck and Beveridge came the concepts of social insurance and social security. From the Fabian Socialists came the principles of the public ownership of basic industries and essential services. From Tawney came a renewed emphasis on equality and rejection of avarice as the mainspring of social activity. From Webbs came proposals for abolishing the causes of poverty and cleaning up the base of society."
Robson stated at p. 192:
"The basic aims of the welfare State are the attainment of a substantial degree of social, economic and political equalities and to achieve self-expression in his work as a citizen, leisure and social justice." According to George Watson, quoted by Robson, "welfare State implies a redistribution of incomes for the achievement of basic standard of living for all." M.P. Hall in his The Social Services of Modern England, 1952 Edn., has stated at p. 303 that:
"The distinguishing characteristic of the welfare State is that the assumption by the community, acting through the State, of the responsibility for providing the means whereby all its members can reach minimum standard of health, economic security and civilised living and can share according to their capacity in its social and cultural heritage."
25. The Universal Declaration of Human Rights, 1948, assures in Article 1 that: "All human beings are born free and equal in dignity and rights." Article 3 assures that: "Everyone has the right to life, liberty and security of person." Article 17 declares that: "Everyone has the right to own property alone as well as in association with others." Article 22 envisages that: "Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort ... and 14 W.P. (PIL) No. 2313 of 2008 resources of each State ... of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." Article 25 assures that: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." Similarly are the social, civil, economic and cultural rights given in European Convention.
26. The Declaration on the Right to Development to which India is a signatory recognising that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom. Article 1 assures that "The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized." Article 2 assures right to active participation and benefit of his right to development. Article 3 enjoins the State as its duty to formulate proper national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom. Article 3(1) states that it is a primary responsibility of the State to create conditions favourable to the realisation of the right to development. In particular, Article 4(1) directs the State as its duty to take steps individually and collectively for providing facilities for full realisation of right to development. Article 8(1) enjoins that the State should undertake necessary measures for the realisation of the right to development. Article 10 says that steps should be taken to ensure the full exercise and progressive enhancement of the right to development, including the formulation, adoption and implementation of policy, legislative and other measures for legislative and executive measures.
27. Illiot Dodds in his book 'Liberty and Welfare' 1957 Edn. at p. 17 stated that "welfare is actually a form of liberty inasmuch as it liberates men from social conditions which narrow their choices and brighten their 15 W.P. (PIL) No. 2313 of 2008 self development". Article 46 of the Constitution mandates the State "to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation." Dr B.R. Ambedkar, while winding up the debates on the Draft Constitution, stated on the floor of the Constituent Assembly that the real reason and justification for inclusion of the directive principles in the Constitution is that the party in power, in disregard of its political ideologies, will not sway away by its ideological influence but "should have due regard to the ideal of economic democracy which is the foundation and the aspiration of the Constitution".
28. Article 21 of the Constitution assures right to life. To make right to life meaningful and effective, this Court put up expansive interpretation and brought within its ambit right to education, health, speedy trial, equal wages for equal work as fundamental rights. Articles 14, 15 and 16 prohibit discrimination and accord equality. The Preamble to the Constitution as a socialist republic visualises to remove economic inequalities and to provide facilities and opportunities for decent standard of living and to protect the economic interest of the weaker segments of the society, in particular, Scheduled Castes i.e. Dalits and the Scheduled Tribes i.e. Tribes and to protect them from "all forms of exploitations". Many a day have come and gone after 26-1-1950 but no leaf is turned in the lives of the poor and the gap between the rich and the poor is gradually widening on the brink of being unbridgeable.
29. 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 16 W.P. (PIL) No. 2313 of 2008 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 the 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.
30. Having regard to the discussions made herein above, we have no hesitation in holding that the provision of Section 46 does not restrict or prohibits the members of scheduled caste and scheduled tribe from getting financial assistance from the banks for the purpose of construction of their residential houses by creating mortgage of their raiyati holding sought to be used for residential purposes so that they may avail their right to standard, meaningful and effective living.
31. The second and the last question that falls for consideration is as to whether the impugned circular restricting the members of scheduled caste and scheduled tribe from mortgaging their lands with the bank for securing education loan is justified?
32. In this regard the Ministry of Tribal Affairs was constituted in October, 1999 with the objective of providing more focused attention on the integrated socio-economic development of the most under privileged Sections of the scheduled tribes. The Ministry of Tribal Affairs undertakes activities that flow from the subjects allocated under the Government of India (Allocation of Business) Rules, 1961. These include (1) social security and social insurance to the scheduled tribes (2) tribal welfare planning, project formulation, research, training etc.(3) promotion and development of voluntary efforts on tribal welfare for scheduled tribes, including scholarship to students belonging to such tribes.
33. The National Scheduled Tribes Finance and Development Corporation has been set up in April, 2001 as a Government Company 17 W.P. (PIL) No. 2313 of 2008 under Section 25 of the Companies Act, 1956, a fully Government of India owned undertaking under Ministry of Tribal Affairs for the purpose of providing financial assistance for the economic development of Scheduled Tries. The objectives of the Corporation, inter alia are identification of economic activities of importance to the Scheduled Tribes so as to generate employment and raise their level of income, up gradation of skills and processes used by the Scheduled Tribes for providing job training, providing financial support for undertaking procurement and marketing of minor forests produce etc. These benefits are available to the members of scheduled tribes whose income should not exceed double the poverty line i.e Rs.39500/- per annum for the rural areas and Rs.54500/- for the urban areas.
34. The Ministry of Tribal Affairs, which is nodal Ministry for the overall policy, planning and coordination of programmes for the development of scheduled tribes. Various Central Sector and Centrally Sponsored Schemes have been undertaken which includes educational development in order to improve their educational status. For example Post Matric Scholarship is a sponsored scheme to promote higher education among scheduled tribes, establishing hostels for scheduled tribes boys and girls, scheme of Ashram schools which aims at extending educational facilities, scheme of vocational training, grant-in-aid to voluntarily organizations.
35. Following the recommendations of Saikia Committee, the government has introduced 83rd Constitutional Amendment Bill in Parliament in 1997 to make right to education from 6-14 years a fundamental right. The Supreme Court in its judgment in Unnikrishnan's case (1993) has already held that citizens of India have a fundamental right to education upto 14 years of age. "-- Undeniably this right remains largely unimplemented. There is a debate going on across the states, whether the proposed constitutional amendments is necessary.
36. The national level organization viz the National Scheduled Tribes Finance and Development Corporation (NSTFDC) continued to function as a catalytic agent for financing, facilitating and mobilizing funds for promoting economic developmental activities of STs. A National workshop of State Governments and the State Channelising Agencies (SCAs) of NSTFDC was held on 17.12.2007. In the workshop, various issues relating to the difficulties faced by the SCAs in implementing the schemes of NSTFDC including improvement in delivery mechanism were 18 W.P. (PIL) No. 2313 of 2008 discussed. NSTFDC has sanctioned projects/schemes during the year with a contribution of Rs.73.12 crore (as on 30.11.2007).
37. It is well settled now that imparting of education is a sovereign function of the State. Article 21-A of the Constitution envisages that children of age group of 6 to 14 have a fundament right of education. Clause 3 of the Article 15 of the Constitution envisages special protection and affirmative action for women and children. In the case of State of Bihar and others Vs. Project Uchcha Vidya, Sikshak Sangh & Others [(2006) 2 SCC 545], the Supreme Court observed: -
39. The State framed the Scheme in question having the constitutional goal in mind. Imparting education is the primary duty of the State. Although establishment of High Schools may not be a constitutional function in the sense that citizens of India above 14 years might not have any fundamental right in relation thereto but education as a part of human development, indisputably is a human right. The framers while providing for the equality clause under the constitutional scheme had in their mind that women and children require special treatment and only in that view of the matter, protective discrimination and affirmative action were contemplated in terms of clause (3) of Article 15 of the Constitution.
38. Similarly, in the case of Election Commission of India Vs. St. Mary's School and Others {(2008) 2 SCC 390], the Supreme Court observed: -
"30. The Human Rights Conventions have imposed a duty on the contracting States to set up institutions of higher education which would lead to the conclusion that the citizens thereof should be afforded an effective right of access to them. In a democratic society, a right to education is indispensable in the interpretation of right to development as a human right. Thus, right to development is also considered to be a basic human right.
39. In the leading case of on reservation policy, the Supreme Court in the case of Ashok Kumar thakur Vs. Union of India and others [(2008) 6 SCC 1], observed that ultimate object of reservation is to bring those who are disadvantaged to a level where they no longer continue to be disadvantaged. The ultimate objective is to bring people to a particular level so that there can be equality of opportunity.
40. With reference to 'education', the Supreme Court noticed the Parliament's statement of Objects and Reasons for Article 21-A and observed as under: -
489. Article 21-A's reference to "education" must mean something.
This conclusion is bolstered by Parliament's Statement of Objects and Reasons for Article 21-A:
"The Constitution of India in a directive principle contained in Article 45, has made a provision for free and compulsory 19 W.P. (PIL) No. 2313 of 2008 education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfil this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfil this goal, it is felt that an explicit provision should be made in the part relating to fundamental rights of the Constitution.
2. With a view to making right to free and compulsory education a fundamental right, the Constitution (Eighty-third Amendment) Bill, 1997 was introduced in the Parliament to insert a new article, namely, Article 21-A conferring on all children in the age group of 6 to 14 years the right to free and compulsory education. The said Bill was scrutinised by the Parliament Standing Committee on Human Resource Development and the subject was also dealt with in its 165th Report by the Law Commission of India.
3. After taking into consideration the report of the Law Commission of India and the recommendations of the Standing Committee of the Parliament, the proposed amendments in Part III, Part IV and Part IV-A of the Constitution are being made which are as follows:
* * *
4. The Bill seeks to achieve the above objects."
490. The article seeks to usher in "the ultimate goal of providing universal and quality education". (emphasis supplied) Implied within "education" is the idea that it will be quality in nature. Current performance indicates that much improvement needs to be made before we qualify "education" with "quality". Of course, for children who are out of school, even the best education would be irrelevant. It goes without saying that all children aged six to fourteen must attend school and education must be quality in nature. Only upon accomplishing both of these goals, can we say that we have achieved total compliance with Article 21-A.
41. Besides the above, persons having sufficient means have been availing education loan under the schemes floated by the nationalized banks and other financial institutions. Those banks and financial institutions are giving education loan to the candidates for their higher studies in different institutions in India and abroad by taking collateral security of land and the personal guarantee of parents. In our opinion, those persons belonging to the members of scheduled caste or scheduled tribe are also entitled to such financial assistance for higher education. If any restriction is put like the impugned circular restraining the members of scheduled caste and scheduled tribe from availing education loan from the banks, that will amount to depriving them from their legal right to bring them and their children at the level of others who, by reason of higher education, have developed their standard of living. Such restriction, therefore, shall be wholly unreasonable and unjustified.
20 W.P. (PIL) No. 2313 of 200842. Having regard to the discussions made herein above, we hold that the impugned circular does contravene the provisions of Section 46 of the Chotanagpur Tenancy Act and the same is wholly unjustified and without jurisdiction. This writ application is accordingly allowed.
(M. Y. Eqbal, J) (D.K.Sinha,J.) Pandey/A.F.R.