Madhya Pradesh High Court
Daya Ram And Anr. vs State Of M.P. And Ors. on 16 January, 2003
Equivalent citations: 2003(4)MPHT435
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The questions of law involved being similar and the writ petitions being inter linked and inter connected were heard analogously and are hereby disposed of by this common order. As the pleadings are complete in W.P. No. 4072/2002, for the sake of clarity and convenience, the facts stated therein are adumbrated.
2. Before we proceed to state the facts we may profitably refer to a paragraph from the decision rendered in the case of R.S. Joshi, Sales Tax Officer, Gujarat and Ors. v. Ajit Mills Ltd. and another, (1997) 4 SCC 98, wherein Krishna Iyer, J., in his inimitable style expressed thus :--
"2. A prefactory caveat.-- When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal - in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois viz., 'that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies'. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognized by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution."
3. We have referred to the aforesaid paragraph for the sanguine and sacrosanct reason that in the present batch of writ petitions vires of certain amendments of Madhya Pradesh Land Revenue Code, 1959 (for brevity 'the Code') and certain executive circulars issued in pursuance of the aforesaid amendment have been assailed on the bedrock of certain constitutional provisions as well as Judge made law and we are disposed to think that the seemly cogitation is to be done in the backdrop of the caveat. The modus vivendi which requires a purposive and constructive ratiocination while engaged in viceration of the provision also warrants that a policy decision, a facet of the Legislature or at times a spectrum of the executive though may draw strength and stimulus in all its variation from the greatest instrument, i.e., the Constitution in a given case and in a particular fact situation if the provisions trespass the quintessential characteristic of Organic Law or Judge made law should not be allowed to stand.
4. The score of facts which need to be stated in brief are that the Code was brought into existence by Act No. 20 of 1959 to achieve the designed object that is to say a uniform legislation on the subject, namely, regarding land revenue, agricultural tenures and other matters relating thereto in force in the different regions of the State. It may be stated here that the State of Madhya Pradesh was brought into being by M.P. Reorganisation Act, 1956 and with the aforesaid object the present statute was enacted by the Legislature. It is putforth in the writ petition that it is a complete Code in itself and it envisages how the land belonging to the State Government is to be dealt with and how the other rights of the private land owners are to be protected. We may hasten to add that there are numerous provisions dealing with various aspects with which we are not presently concerned. We will be adverting to the relevant provisions at the appropriate stage while dealing with the validity of the provisions which are called in question in the present writ petitions. It is averred that the Legislature has brought forth an amendment on 16-8-2000 and a part of Section 237 has been amended and thereafter vide amendment dated 27-9-2001 by M.P. Land Revenue Code (Amendment) Act, 2001 a further amendment has been incorporated in Sub-section (3). By virtue of the amendment the power has been conferred with the Collector to divert the land from the land set apart under Section 237 (1) (b) and further the terms "on the basis of the resolution by the Gram Sabha to this effect" have been deleted.
5. Assailing the aforesaid amendment it is urged in the petition that the reduction of area from 5% to 2% is likely to affect the cultivators as they would face enormous difficulty in grazing their cattle. There is prohibition for cultivators to graze their cattle and under these circumstances the substitution of 5% to 2% is absolutely unwarranted and, in fact, runs counter to the conception of public interest which is the basic and essential feature of public good in a welfare state. It is putforth that the reduction affects the lives of the cattle whose growth is imperative for the advancement of the rural populace in India as it is basically an agrarian and agronomic society and if the concept of egalitarian orientation is given the priority, such substitution which tan-tamounts to reduction, from all domains runs counter to the Preamble of the Constitution being in dissonance with the Central and inherent principles and thereby invites the wrath of Rule of Law and deserves to be declared ultra vires. It is contended that no amendment has been brought forth in Section 234 of the Code and in the absence of the amendment in that regard, the amendment inserted in Section 237 (3) by itself would not empower the Collector to exercise power for diverting the land as that would still run counter to Section 234 ostracizing the idea of harmonious construction. Various Forms under Section 234, namely, Form A, Form B and Form C, have been referred to substantiate the plea and build an edifice that if the State Legislature desired to design a beneficial scheme for the downtrodden it was incumbent on the part of it to first amend Section 234 and then amend Section 237 and as that has not been done such amendment can not withstand scrutiny. Challenging the second facet of amendment which has come into existence in the year 2001 whereby the words "on the basis of a resolution by the Gram Sabha to this effect" have been deleted, it is setforth that the same is contrary to the constitutional frame work inasmuch as by 73rd Amendment to the Constitution Chapter IX-A was introduced which has conferred autonomy on the Panchayats and certain powers have been conferred on the Gram Sabhas and on the face of the constitutional scheme the Gram Sabha having been bestowed the power the same can not be annihilated or scuttled by deletion of the said provision which basically deal with the land, the prime property with which the Gram Sabha is concerned. It is also contended in the petition that when the concept of Gram Sabha or the will of the public at large of the Gram Sabhas have kept alive under Section 234 of the Code the deletion of said terms under Section 237 (3) does not save the provision inasmuch as an anomaly creeps in and by no stretch of imagination it can be saved from frown of compatibility. It is also highlighted that the cattle are in the main stay of sustenance of poor citizens of the State and they have no other area to allow their cattle to graze. Emphasis has also been laid on the nature of manure that is made available from cow dung. Pyramiding the said point, it is contended that use of inorganic manure is hazardous to human health and thereby offends Article 21 of the Constitution. Quite apart from the aforesaid there is also challenge on the bedrock of arbitrariness as the Legislature has not exercised the power keeping the data in view and visualizing the fact that the inhabitants of the rural area mostly depend on cattle. To elaborate the submission on this score is that the inhabitants of the villages should have been afforded an opportunity before passing of the legislation so that such a situation which is devastating in nature, according to the petitioner, would not have arisen. Apart from the assail to the aforesaid provisions of the statute there is also assail to the circular dated 2-3-2002 (Annexure P-4). It is apropos to state here that the said circular is the latest in the field which has come into existence and there are other various circulars which have been issued prior to that. But it has been clearly stated before us at the Bar that this circular is a comprehensive composition of all the previous circulars and if this circular is declared ultra vires, the infrastructure which has crystallized into the superstructure would collapse and, therefore, other circulars need not be adverted to. Questioning the constitutional pregnability of this circular it is contended that the same has been issued in violation of the provisions of the Act inasmuch as the concept of 'maximum' has been used whereas the statute uses the word 'minimum'. It is also putforth that in sub-para 2 of Paragraph 3 a provision has been enshrined stipulating that all land shall be considered which become available as a result of Government instructions. It is also urged that when there is a particular, specific and precise mode provided for diversion, conferral of powers by the executive instructions is illegal and indefensible. It is also contended that Paragraph 5 which deals with action of item and Nau'iyat change by the competent Revenue Officer authorising the officer concerned exchange of 'charnoi' land is totally unsustainable as it runs counter to the provisions of the enactment.
6. The last plank of attack to the circular is that paragraph two which deals with the procedure for allotment of land though in a way exposits the categories of preference yet as an actual fact vicariously engulfs the concept of 100% reservation of the land for the Scheduled Castes and Scheduled Tribes which is not permissible for the simon pure reason that the State can not take recourse to intricate methods and pave the path of subterfuge to introduce something which is unpresentable and penetrable. To elucidate; the categories have been so patterned and the preferences have been so designed that it becomes graphically clear that in the semblance and facade of preference total reservation has been made in favour of Scheduled Castes and Scheduled Tribes to the exclusion of all other categories.
7. A return has been filed by the answering respondents contending, inter alia, that the present batch of writ petitions is a motivated one inasmuch as the petitioners in almost all the cases are in occupation of pasture land though they themselves believe in reservation for pasture land for the villagers. It is further putforth that the State Legislature has the legislative competence to legislate in the field and in the absence of legislative incompetence what remains to be tested is whether by such amendment social justice has been achieved or same has been totally given a go-bye by such reduction. It is urged in the return that Section 237 of the Code authorizes the Collector to set apart the unoccupied land for Nistar purpose and Sub-section (3) of Section 237 carves out an exception by which the Collector has been authorised to divert the unoccupied land set apart for Nistar purpose. Earlier the said power was not available to the Collector but consequent upon the amendment this has been conferred on him to subserve a larger public interest. It is also highlighted that the petitioners have a selfish interest as they are unauthorized occupants and their solitary interest is to retain and project their possession and, therefore, challenge at their behest has to be thrown overboard. It is also setforth that the amendment under Section 237 seeks to achieve the constitutional goal and hence, no fault can be found with the aforesaid amendment. Quite apart from the above, justification has been given for sustenance of the circular on the bedrock of Article 14 that the classification as envisaged in the Circular does not warrant any interference as that effectuates the policy framed in the interest of collective.
8. Rejoinder affidavits in certain cases have been filed. They need not be dealt in as there is reiteration of facts apart adumbration of the historical backdrop of the Code.
9. We have heard Mr. Imtiaz Husain, Mr. Alok Aradhe, Mr. Vipin Yadav, Mr. R.S. Khare and Mr. Narendra Sharma for the petitioners and Mr. V.K. Tankha, learned Advocate General for the State alongwith Mr. Hemant Shrivastava.
10. Mr. Imtiaz Husain, learned Counsel for the petitioners, has submitted that while reducing the land in question State Legislature has not kept in view the requirement of cattle in the state which is of prime requirement in the prevalent society. He has submitted that the emphasis on the grazing land of the cattle has been laid down by the Apex Court in the case of Hasmattullah v. State of Madhya Pradesh and Ors., AIR 1996 SC 2076. He has also commended us to the decision rendered in the case of Amar Singh v. Raghuvir Singh and Ors., 1980 RN 6 to bolster his submission that the conferment of right has to take place as envisaged under Section 234 of the Code and any other mode is unacceptable.
11. Mr. Alok Aradhe, learned Counsel for the petitioners in some of the writ petitions has submitted that conjoint reading of Section 233 to Section 239 would clearly go to show that the State Legislature while not amending the other provisions could not have ventured to amend Section 237 (3) of the Code and could not have promulgated the circular in question. It is canvassed by him that by such amendment collective interest has been given a coarse burial and the rights which are to be kept pristine under the Code have been guillotined. Learned Counsel for the petitioner has further submitted that Articles 40 and 243G have given immense emphasis on the Gram Sabhas and hence, the deletion of words by way of amendment in the year 2001 runs counter to the constitutional mandate thereby making it vulnerable in law. Commenting to the circular it has been proponed by Mr. Aradhe that in the statement of object and reason there is mention of Scheduled Castes and Scheduled Tribes though the said words do not find mention in the Act but by executive measure steps have been taken to distribute the available charnoi' land amongst Scheduled Castes and Scheduled Tribes which on realistic analysis covers the entire land. Further proponement of Mr. Aradhe is that this reservation is contrary to the basic concept of reservation. The learned Counsel has placed reliance on the decisions rendered in the cases of M.R. Balaji and Ors. v. State of Mysore and others, AIR 1963 SC 649 and Indira Sawhney v. Union of India and others, AIR 1993 SC 477. The learned Counsel has also referred to the decision rendered in the case of Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., (1999) 7 SCC 120.
12. Mr. Vipin Yadav, learned Counsel for some of the petitioners has seriously criticized 100% reservation and also putforth that policy decision of the State runs counter to the enactment. To buttress his submission he has placed reliance on the decision rendered in the case of Balaji (supra).
13. Mr. V.K. Tankha, learned Advocate General, sounding a contra note, submitted that when the population of the State has grown quite high it has become ineluctable on the part of the welfare state to save the branch of homo sapiens by setting apart 'charnoi' land by substituting 5 per cent by 2 per cent and hence, the legislation can not be flawed on that score. It is canvassed by him that the collective good has been kept in view. Learned Advocate General further canvassed that the 'charnoi' land was actually in occupation of some powerful persons in an unauthorized manner and to check the said malady such a legislation was essential. It is urged by Mr. Tankha that the reduction of land has taken place from time to time and in any case the State Government has introduced the concept of stall feeding and also funded some amount for establishing/starting 'Goshalas' and, therefore, the cattle are really not driven to the streets. Commenting on the criticism with regard to the deletion of words in respect of Gram Sabha it is submitted by him that by such obliteration the State Legislature has not offended any of the provision of the Constitution. Part IX-A of the Constitution nowhere lays/postulates that Gram Sabha will be given this kind of power. On the contrary, the powers are to be conferred by the State Legislature and when the State Legislature had conferred such power and the same is withdrawn when it was noticed that Gram Sabhas are creating impediments in expanding the welfare scheme of acquisition of land for the needy and downtrodden in accordance with law, it thought it necessary to abridge the power. Supporting the circular it is submitted by Mr. Tankha that the circular nowhere uses the term 'maximum' and even if it is construed to be 'maximum' it should be read down to mean minimum of 2%. As far as conversion of other land which finds place in certain paragraphs of the circular which deal for land allotment Mr. Tankha after obtaining necessary instructions from the competent authority of the State contended that there is no intention to convert the land which has been kept apart or demarcated under Section 237 (2) of the Code but to convert such other unoccupied land for which no exercise under the enactment is necessary and thus there is no contravention of any provision. Supporting the factum of preference the submission of Mr. Tankha is manifold. It is contended by him that Article 46 of the Constitution enables the State Government to make laws for weaker sections of the society and, therefore, the circular is in consonance with the Constitutional requirement. It is also submitted by him that when the State Government endeavoured to reach to the weakest of the weaker and poorest of the poorer by making provision for allotment the concept of reservation which has been pyramided by the Counsel for the petitioner has no legs to stand upon. It is further propounded by him that in the case of The Comptroller and Auditor General v. K.S. Jagannathan, AIR 1987 SC 537 in Paragraphs 30 and 31 the Apex Court has expressed the distress and agony of the Scheduled Castes and Scheduled Tribes for centuries and, therefore, the State Government was justified in issuing such circular by which they can reach these people who have remained poor being landless for several centuries. The learned Counsel has submitted that the concept of prioritization and proportionality are the facets of Article 14 of the Constitution and when by the circular preferential categories have been fixed, it can not by any stretch of imagination be concluded that there is 100% reservation. On the contrary, submitted the learned Advocate General that the fixation of prioritization is the need of hour. Learned Counsel has referred to various other enactments to show that the prioritization does not create any concavity-in the constitutional frame work in all cases but sometimes subserves the basic essence of the Organic Law. He has commended us to the decisions rendered in the cases of State of Gujarat and Anr. v. Vaghela Dayabhai Chaturbhai and others, (1980) 3 SCC 318, State of Tamil Nadu and Ors. v. L. Abu Kavur Bhai and Ors., (1984) 1 SCC 515, Lingappa Polchanna Appelwar v. State of Maharashtra and Anr., (1985) 1 SCC 479, H.S. Srinivasa Raghavachar and Ors. v. State of Karnataka and Ors., (1987) 2 SCC 692, R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309 and Indira Sawhney v. Union of India and Ors., AIR 1993 SC 477 in support of justification of the circular.
14. Now we shall deal with the contentions in seriatim. The primal attack on amendment is that when no amendment has been effected in Section 234 of the Code, any other amendment does not remove the pallisade enabling or authorising the Collector to divert the land. To appreciate the scheme of the Code it is apposite to refer to Section 233. Section 233 occurs in Chapter XVIII which deals with rights in 'abadi' and unoccupied land and its produce. Section 234 deals with preparation of 'Nistar Patrak'. Section 235 deals with matter to be provided for in 'Nistar Patrak', Section 236 stipulates provision in 'Nistar Patrak' for certain matters. Section 237 authorizes the Collector to set apart land for exercise of Nistar rights. For better appreciation we think it relevant to reproduce the aforesaid provisions :--
"233. Record of unoccupied land.-- A record of unoccupied land shall, in accordance with rules made in this behalf be prepared and maintained for every village showing separately--(a) unoccupied land set apart for exercise of Nistar rights under Section 237;
234. Preparation of Nistar Patrak.-- (1) The Sub Divisional Officer shall, consistently with the provisions of this Code and the rules made thereunder, prepare a Nistar Patrak embodying a scheme of management of all unoccupied land in a village and all matters incidental thereto and more particularly matters specified in Section 235.
(2) A draft of the Nistar Patrak shall be published in the village and after ascertaining the wishes of the residents of the village in the prescribed manner, it shall be finalised by the Sub Divisional Officer.
(3) On a request being made by the Gram Sabha, or where there is no Gram Sabha, on the application of not less than one-fourth of the adult residents of a village, or on his own motion the Sub Divisional Officer may, at any time, modify any entry in the Nistar Patrak after such enquiry as he deems fit.
235. Matters to be provided for in Nistar Patrak.--The matters which shall be provided for in the Nistar Patrak shall be as follows, namely:--
(a) terms and conditions on which grazing of cattle in the village will be permitted;
(b) the terms and conditions on which and the extent to which any resident may obtain--
(i) wood, timber, fuel or any other forest produce; (ii) mooram, kankar, sand, earth, clay, stones or any other minor mineral; (c) instructions regulating generally the grazing of cattle and the removal of the articles mentioned in paragraph (b); (d) any other matter required to be recorded in the Nistar Patrak by or under this Code. 236. Provision in Nistar Patrak for certain matters.-- In
preparing the Nistar Patrak as provided in Section 235, the Collector shall, as far as possible, make provision for-
(a) free grazing of the cattle used for agriculture; (b) removal free of charge by the residents of the village for their bona fide domestic consumption of--(i) forest produce; (ii) minor minerals; (c) the concessions to be granted to the village craftsmen for the removal of the articles specified in clause (b) for the purpose of their craft. 237. Collector to set apart land for exercise of Nistar rights.-
(1) Subject to the rules made under this Code, the Collector may set apart unoccupied land for the following purposes, namely:--
(a) for timber of fuel reserve;
(b) for pasture, grass bir or fodder reserve;
(c) for burial ground and cremation ground;
(d) for gaothan;
(e) for encamping ground;
(f) for threshing floor;
(g) for bazar;
(h) for skinning ground;
(l) for manure pits;
(j) for public purposes such as schools, play grounds, parks, roads, lanes, drains and the like; and
(k) for any other purposes which may be prescribed for the exercise of right of Nistar.
(2) Lands set apart specially for any purpose mentioned in Sub-section (1), shall not otherwise be diverted without the sanction of the Collector.
(3) Subject to the rules made under this Code, the Collector may divert such unoccupied land, which is set apart for the purposes mentioned in clause (b) of Sub-section (1) subject to secure minimum two per cent of the agriculture land of that village for the said purposes into abadi or for agricultural purposes."
We may hasten to add that we shall refer to other provisions of the Act at a later point of time wherever it is needed to deal with the submissions raised at the Bar.
15. Mr. Imtiaz Husain, learned Counsel has submitted that when Section 234 (3) has not been amended, the amendment in Section 237 (3) can not be implemented. To build up his submission he has placed reliance on the decision rendered in the case of Amar Singh (supra). In the said case a Division Bench of this Court in Paragraphs 7 and 8 held as under :--
"7. We then come to Section 237 where the Collector was given power subject to rules made under the Code to set apart unoccupied land for certain purposes mentioned in Sub-section (1). These include for pasture, grass, bir or fodder reserve. This power of the Collector is an over-riding power to achieve that the unoccupied land is set apart for purposes mentioned under Sub-section (1). It would be clear from Sub-section (2) that once the lands are set apart specially for any purpose mentioned in Sub-section (1) they shall not otherwise be diverted without the sanction of the Collector. The Collector has thus the sanctioning power after the lands were set apart for a particular purpose under Sub-section (1). Sub-section (2) of Section 237 reads as under:--
"237, (2) Land set apart specially for any purpose mentioned in Sub-section (1) shall not otherwise be diverted without the sanction of the Collector."
In the context the diversion contemplated by this sub- section relates to purposes mentioned in Sub-section (1) inter-se and not diversion into cultivation use. The scheme of Section 237 deals with setting apart unoccupied land lor non-agricultural purposes and the diversion is with reference to such purpose only.
8. Section 172 deals with diversion of Bhumiswami land into non-agricultural purposes. Section 59 speaks of land revenue according to the purpose for which the land is used. If the land is to be diverted from agricultural to some non-agricultural use, the section provides that it would be assessed to land revenue according to the rules on the principles contained in Chapter VII or VIII, as the case may be, of the Code."
16. Submission of Mr, Husain is that the whole gamut of procedure is to be taken recourse to. The aforesaid submission of Mr. Husain, in our considered view, is sans substance inasmuch as Section 234 (3) deals with preparation of Nistar Patrak and Section 237 authorizes the Collector to set apart the land for exercise of Nistar. Section 234 (3) deals with a separate sphere where steps are to be taken for diversion of certain land inter-se. In fact, that is the view of this Court expressed in the case of Amar Singh (supra). That apart, the said decision was delivered before Section 237 (3) was amended. Section 237 now authorizes the Collector to divert such unoccupied land which is set apart for the purposes mentioned in clause (b) of Sub-section (1) subject to secure minimum two per cent of the agricultural land of that village for the said purposes in to abadi or for agricultural purposes. When such powers exclusively have been conferred on the Collector by way of express provision the same is not contrary to Section 234 (3) inasmuch as Section 237 operates in a different spectrum and there is no justification or warrant to inescapably conjoin or attach them. Hence, we are unimpressed by the aforesaid submission and have no hesitation in repelling the same.
17. The next facet of argument is that the reduction to 2% is arbitrary as the State Legislature has not kept in view the need of the cattle and the public need. In this context the learned Counsel for the petitioner has commended us to the decision rendered in the case of Hasmatullah (supra) Indira Sawhney (supra) and referred us to certain passages. In the aforesaid cases the Apex Court took note of certain conditions and addressed to the same. It is well settled in law that the decision does not get the status of precedent because a conclusion can be drawn by the process of inferential analysis in that regard. We are fortified by the decision rendered in the case of Ambica Quarry Works etc. v. State of Gujarat and others, AIR 1987 SC 1073, wherein it has been held as under:--
"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
Thus, the stand putforth by the learned Counsel for the petitioner is devoid of merit. As far as contention with regard to reduction is concerned it is canvassed that there has to be some purpose and in the absence of the same, it is impermissible. In our considered view, the aforesaid proponement is not acceptable. The State has given reasons that in view of large scale of poor population and to reach the poorest of the poor and landless persons it had become necessary to reduce the land and divert the land. It is also perceptible that the land has been occupied by the persons and is not being used for pasture purpose. If a particular land having been set apart is not occupied for the purpose for which the statute has conferred the privilege, in our view, it can be reduced and diverted to meet better and proper requirement. We are conscious that cattle are to be fed but simultaneously the need of a man can not be marginalised. The competing equities, if we understand correctly, is one with regard to betterment of cattle and other one is in relation to the factum of sustenance and subsistence of human being. No person should be treated as unperson. The question is whether a human being being landless would lead a life of poverty and misery and the cattle be allowed to graze on paper because it is alleged, the lands are in occupation of some persons who believe in the theory that might is right ? That apart, the Legislature has fixed the minimum and if required in a given circumstances enhance the same. Thus, in our considered view, the reduction if studied from this angle and judged from this spectrum can not be found fault with. With the passage of time the concept of changes and the law has to be resilient and pave the path of progress leaving the course of stagnation and staticness. Quite apart from the above, when the land goes to the landless it is a collective public purpose to achieve socio-economic goal in a wholesome manner. To perceive otherwise, is to miss the refraction. The hypostasis of the purpose of the provision can not be looked at with a mercurial stance. Accordingly, we are impelled to negative the aforesaid contention.
18. The next aspect which is required to be dealt with is the deletion of words relating to 'Gram Sabha' by 2001 amendment. It is contended by the learned Counsel for the petitioners that the deletion defeats the purpose of Gram Sabha. This has been assailed in the backdrop of Article 243 occurring in Chapter IX-A. Mr. Alok Aradhe has specifically drawn our attention to Article 243G which reads as under :--
"243-G. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to-
(a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
19. Submission of Mr. Aradhe is that by deletion of terms from the aforesaid provisions, Article 243G is transgressed. We have scanned and X-rayed the aforesaid constitutional provision. By the said provision power has been conferred on the State Legislature to endow Panchayats with power and authority. In this context it is apposite to refer to Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. In the aforesaid Act the definition of "Gram Sabha" has been given. Section 7 of the aforesaid Act provides for the powers and functions and annual meeting of the Gram Sabhas. We have carefully perused the aforesaid provision. The said provision stipulates many a power which are to be given to the Gram Sabhas by general or special orders by the State Government but such powers have also been enumerated from Section 7-A onward but on a careful scrutiny and studied appreciation we do not find any role of the Gram Sabha qua M.P. Land Revenue Code. Mr. Alok Aradhe has not been able to show anything in this regard from the aforesaid provision. Mr. Alok Aradhe has also referred to Article 40 of the Constitution. It reads as under :--
"40. Organisation of Village Panchayats.-- The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government."
19-A. Submission of Mr. Aradhe is that the Constitution commands that there should be organization of village panchayats and conferral of such powers to enable them to function as units of self Government and the present amendment is a retrogressive step. There is no doubt that it is a mandate to the State but it also postulates that State shall endow such powers. Keeping in view both the articles if we permit ourselves to say so, the Panchayat Raj Adhiniyam and other enactments have been made. The power was initially conferred on the 'Gram Sabhas' but when the State Legislature found that it has not been properly exercised and a remora was created, it has withdrawn the same in accordance with law. As the authority who had conferred power has reviewed the same, we do not see any reason to hold that it violates the constitutional command and hence, we do not find any merit in the aforesaid submission.
20. We shall presently proceed to deal with the validity of the circular. The circular has been attacked on three grounds. Two aspects have been conceded to by Mr. V.K. Tankha. It is accepted by him that the State Government would never go below 2% and if necessary reserve and set apart more than 2%. As far as this aspect is concerned we say that it would never come down below 2% and if required for any particular village the Collector may reserve or set apart more than 2%. The second aspect is with regard to conferral of power to distribute other land. Learned Advocate General submitted that the circular which has been issued in pursuance of the amendment really does not entrench upon the land specified under Section 237 (3) and in view of the same the challenge to this facet of circular need not be adverted to. In view of the aforesaid circular, we hereby clarify that no land specified and set apart under Section 237 (1) of the Code shall be tampered with for, the purpose of meeting the exigencies specified in the circular.
21. The next aspect pertains to priority clause. It has been attacked on many a score. The concept of priority or preference has its connotation. The Circular dated 2-3-2002 defines landless persons. We may state at the outset that circular which has been brought on record is in Hindi. Mr. Tankha has submitted an English translation of the same. Learned Counsel for the petitioners do not dispute the said translation and hence, we proceed to quote from the translated version. The definition of landless person in the aforesaid circulars reads as under :--
"The amended definition of the "landless persons" :
The State Government has amended the existing definition of landless person which is defined in clause (e) of Para 1 of at serial No. 3 of the Revenue Book Circular. As per the amended definition, there shall be two categories (class) of the landless persons, as under:--
Landless person : Category -I: Landless person Category -I, means such actual cultivator or agricultural laborer residing in the State for at least 12 years and who individually or jointly with any member of his family does not own any land.
Explanation :-- For the purpose of this para the family of the landless person includes, his/her spouse (wife or husbandman) unmarried daughters/father/mother/real and step brothers.
Landless person : Category - II: Landless person Category - II means such actual cultivator or agricultural laborer residing in the State for not less than 12 years and who has-
(1) No land; or (2) Has one hectare or less of hilly or stoney land which is unirrigated; or (3) Any other 1/2 hectare or less unirrigated land; or (4) With the members of his family jointly holds less than the prescribed area as per the situation obtaining (2 or 3 above); or (5) Hold jointly less than the prescribed area with a person other than the members of his family with his personal share in the situation obtaining above in (2) and (3). Explanation 1:-- For the purpose of landless Category - II one hectare irrigated land shall be equivalent to 2 hectares of unirrigated land.
Explanation 2 :-- The family of the person means wife or husband minor children and such parents who are dependent shall be included.
Explanation 3:-- If any person having jointly possessed in a land with his family members and any other person, who is not his family member, whether such person has a family or not, then the share of such other person would be considered as a separate person.
Explanation 4 :-- More than one person of the family shall become entitled to allotment if the surplus land is available after allotment to the persons contained in Category - I and the agricultural land is available.
Explanation 5 :-- The adult members both daughter and son shall be treated as separate family for the purpose of allotment of land."
Paragraph 2 of the said circular deals with procedure for allotment of land.
The same reads as under:--
"2. Amended Procedure for land allotment.-- After amending the definition of landless person land available after the reduction of area of charnoi land shall be allotted according to the following procedure:--
(i) Firstly, the Schedule Caste and Schedule Tribe landless persons described in Category -I of the same village shall be allotted.
(ii) When land has been allotted to all the landless SC/ST of the Category - I of the available land after change of classification of charnoi land is still available, the remaining land in the village shall be allotted to such member of SC and ST as defined in Category - II.
(iii) After allotment of land to landless persons of Categories I & II of SC & ST then it will be if allotted to members of Schedule Caste and Schedule Tribes of Category -I of the adjacent villages.
(iv) If in any village the landless Schedule Caste and Schedule Tribe defined in Category -I are available and land for allotment to them is also available then each such landless person shall be allotted a minimum of 1 hectare or a maximum of 2 hectares of unirrigated land. If the available land is less, the allotment shall be done in such a manner that no person receives less than 1/2 hectare of land irrigated land shall be one hectare.
(v) Generally the landless persons of one village should not be allotted the excess land of another far-flung village where there is no common boundary between the villages. In case land is still available after following the prescribed procedure and under special circumstances allotment orders shall be issued by the S.D.O. Revenue after obtaining approval by the Collector.
(vi) The land situate upto 2 and 5 km. within the outer limits of the Municipality and Municipal Corporation respectively may be allotted for agriculture purpose to the member of SC/ST for a period of one year by the Collector on lease strictly according to the prescribed procedure and criteria. Such temporary annual lease may be given only to such person who is the original allottee of such land. Provided such land is not required for any Govt. purpose. In case the land is required to be acquired for Govt. purpose, the person concerned shall be allotted land a near by place where the land is available."
21. Mr. Aradhe and Mr. Vipin Yadav, learned Counsel appearing for the petitioners, have submitted that the concept of priority which has been indicated in Paragraph 2, in fact, amounts to 100 per cent reservation. Mr. Tankha has contended that it is not reservation but allotment. We do not want to delve into that subtle and over-refined aspect but would dwell upon the facet whether and how the same is treated for the purpose of distribution qua landless persons. Mr. Tankha has submitted a statistical information in the State of Madhya Pradesh to highlight that the superstructure built by the learned counsel for the petitioners with regard to 100% allotment is a Sysiphian endeavour inasmuch as the real area which is distributed amongst the SC & ST is really nominal and does not offend any provision of law. It is proponed by him that a maze is created without appreciating the manner and method of allotment. The data given by the learned Advocate General is worth reproducing. Hence, we reproduce the same :
Statistical Information of Madhya Pradesh In Lac Hectares 1. Geographical Area 308 2. Reserved Forest 54
3. Protected Forest 19.55 4. Area as per village papers 234
5. Forest 12.58
6. Area under Non-agriculture use 18.35
7. Barren & unculturable land 13.65
8. Permanent pastures and other graz-
ing lands 16.57
9. Land under Misc. Tree Crops (not 0.15
included in area sown)
22. It is putforth by Mr, Tankha that if the entire area of the State is taken into consideration the parcel of land which has been demarcated to be allocated to the SC & ST on priority/preference basis can not be found fault with as it comes about 1%. It is propounded by him that certain words in the circular "it should be allotted only to the SC & ST persons" have been loosely used and instructions have been issued to delete the said phraseology. Be that as it may, the question that really arises at this juncture is whether such deletion would save the circular. We have carefully seen the priority/preference clause. In our considered view such priority though finds place in many a case but in the present one, as we perceive, no land would ever be granted to the Category -I who belong to classes other than the SC and ST. Mr. Tankha has commended us to the decision rendered in the case of V.D. Chaturbhai (supra) wherein the Apex Court held that the landless persons with uneconomic holdings in villages belong to SC & ST are in need of special care. It is his submission that distributive justice has to be allowed free play in an egalitarian society and placed into service certain other decisions which we have referred to above. Learned Counsel while building up the argument on the concept of distributive justice in juxtaposition with Article 46 has referred us to the decision rendered in the case of Charansingh and others (supra) wherein a two Judge Bench of the Apex Court in Paragraph 10 held as under :--
"10. It is now settled policy of the Government as enjoined under Article 46 of the Constitution and the Directive Principles, particularly Articles 38 and 39(b) and the Preamble of the Constitution that economic and social justice requires to be done to the weaker sections of the society, in particular to the Scheduled Castes and Scheduled Tribes and to prevent them from social injustice and prevention of all forms of exploitation. In the light of that constitutional objective of economic empowerment, the Government have rightly taken the policy to assign the lease either to a Co-operative Society composed of the Scheduled Castes or individual members of the Scheduled Tribes, as the case may be, in accordance with their policy then in vogue at the rate of Rs. 20 per acre or 90 times the land revenue, whichever is less. Under these circumstances, the appellants having been inducted into possession reclaimed the land and remained in possession after the expiry of the lease, the Government is required to regularize their possession and assign the lands in their possession in accordance with the policy. The appellants, therefore, are directed to make necessary application within four weeks from today to the competent authority and the authorities are directed to regularize their possession imposing necessary application within four weeks from today to the competent authority and the authorities are directed to regularize their possession imposing necessary conditions for their continuance in possession and enjoyment of the same in the light of the constitutional objection of rendering them socio-economic justice putting restrictions on subletting or selling, all the relevant conditions in that behalf may be imposed so that they remain in possession and enjoy the same to improve their social and economic status as enjoined under the Constitution. The authorities also be directed to dispose of the applications within a period of two months from the date of the receipt of the same. The appellants shall remain in possession until the regularisation is done and shall enjoy the lands without any subletting or alienation thereof."
23. Learned Counsel has also placed reliance on the decision rendered in the case of Ashok Kumar Tripathi v. Union of India and Ors., 2000(2) M.P.H.T. 193 = 2000 (1) JLJ 208. In the case of Ashok Tripathi (supra) the Division Bench upheld 100% reservation with regard to the seats in the Gram Sabha because that empowers the politically oppressed persons. It is his submission that in the case of Ashok Tripathi (supra) this Court accepted the political empowerment and, therefore, in the present case the concept of empowerment of economically oppressed being involved the preference clause should be allowed to stand. In this regard, as has been stated earlier, Mr. Alok Aradhe has placed reliance on the decision rendered in the case of Balaji (supra) wherein it has been held that the grant of reservation can not be 100%. In the case of Balaji (supra) in Paragraph 31 the Apex Court stated thus :--
"31. When Article 16(4) refers to the special provisions for the advancement of certain classes or Scheduled Castes or Scheduled Tribes, it must not be ignored that the provisions which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interest of the society at large would be served by promoting the advancement of the weaker elements in the society that Article 15(4) authorizes special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15(4). It would be extremely unreasonable to assume that in enacting Article 15(4) the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored."
24. In the case of Indira Sawhney (supra) the Apex Court ruled as under:--
"It needs no emphasis to say that the principle aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (see his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain extra-ordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."
25. The question that falls for adjudication is that though the above decisions were rendered in relation to the appointment, whether the doctrine applied or principle laid down therein can be borrowed and applied to the case of this nature. It is submitted by Mr. Tankha that the matter of appointment lies in separate compartment altogether. The matter relating to economic and making people economically and financially able to lead a life which is recognizable as person, is in a different arena. Though the aforesaid argument on a first flush sounds quite attractive and impressive pales into insignificance on a deeper probe. We are afraid we do not accede to the same. We perceive that there is a dent in the circular inasmuch as it actually amounts to 100% allotment, though Mr. Tankha would like us to construe it differently.
26. We have been informed at the Bar that certain circulars were issued from time to "time and on the basis of such Circulars 273 lac hectares of land have already been distributed before 30th of November. We have been apprised that in the meantime some land has been distributed. In this context we may profitably refer to the decision rendered in the case of DM. Nanjjappa v. SA. Ramappa and Ors., (2000) 7 SCC 506. We are conscious that the aforesaid decision is not directly on the point but irrefragably renders some assistance. In the aforesaid case the Apex Court dealt with Karnataka Land Grant Rules, 1969. Rules 4, 5 and 6 of the aforesaid Rules read as under :--
"4. Persons eligible for grant of land for agricultural purposes.-- (1) Lands available for disposal may be granted for agricultural purposes under these rules to a person-
(i) who has attained the age of eighteen; and (ii) whose gross annual income does not exceed rupees eight thousand; and (iii) who is either a bona fide agriculturist cultivating the land personally or has bona fide intention to take up personal cultivation; and (iv) who is not a sufficient holder:
Provided that in the case of ex-servicemen and soldiers, lands may be granted, if the gross income of the applicant exceeds rupees eight thousand but less than rupees twelve thousand :
Provided further that the extent of land granted to any person shall not together with the land already held by such person exceed the limits prescribed for a sufficient holder in Rule 2 (15).
(2) Notwithstanding anything contained in sub-rule (1) any person may be granted the land adjacent or close to the land already held by him on collection of market value as on the date of grant to be determined by the authority granting the land, if such land is, in the opinion of such authority required for better enjoyment or better cultivation of the land so held :
Provided that no such grant shall be made of an extent exceeding in the case of wet or garden land half hectare and in the case of dry land one hectare and that the total extent of land held after such grant does not exceed the ceiling area according to the Karnataka Land Reforms Act, 1961.
5. Reservations.-- (1) The land available for disposal in any village shall be granted observing the reservation indicated below:--
(i) Ex-servicemen and soldiers 10 per cent (ii) Persons belonging to Scheduled 50 per cent Castes and Scheduled Tribes (ii-a) Backward Tribes 5 per cent (iii) Political sufferers 10 per cent (iv) Others 25 per cent
(2) Where the extent reserved under (ii) and (iii) is in excess of the extent that can be granted to the person belonging to those categories, the excess land shall with the approval of the Deputy Commissioner be disposed of among persons in Category (iv).
(3) Notwithstanding anything in sub-rule (1), where the land available for disposal in village is less than four hectares, the whole of such land shall be disposed of to persons belonging to the Scheduled Castes and Scheduled Tribes who are ordinarily residents of such villageor who reside in the neighbouring village and where no persons belonging to Scheduled Castes and Scheduled Tribes apply, it shall be disposed of to others.
6. Order of priority.-- In disposing of land among persons belonging to Category (iv) of sub-rule (1) of Rule 5, the following order of priority shall be observed :--
(i) landless persons residing in village; (ii) insufficient holders residing in the village; (iii) landless persons residing in other villages in the same or adjacent taluk; (iv) others: Provided that when Government directs under Section 71 of the Act that in any particular area Government land shall be reserved for grant to displaced persons and tenants affected by any Government project, provisions of Rules 5 and 6 will not apply."
27. Under Rule 5 of Karnataka Rules reservation was made for the Scheduled Castes and Scheduled Tribes category at 50%. The said Rules were approved in a way by the Apex Court. It is submitted by Mr. Tankha, learned Advocate General for the State that economic and social justice are to be done to the weaker sections of the society and especially to the Scheduled Castes and Scheduled Tribes as they have suffered immensely and faced exploitation for centuries and economic empowerment to the said sections is an integral part of the distributive justice. It is putforth by him that by conferring preference a basic human right is extended to the said class of people so that they can live with status and dignity fulfilling their want and aspiration without getting them alienated from the main stream of civilization. It is canvassed by him that the concept of priority as has been introduced in the circular is meant to provide adequate means of livelihood to the poor and weaker sections of the society and the same meets the basic ingredient of public good. The meaningful life is the requirement under the Constitution and various provisions of the Constitution throw light on the same and the Courts are required to act as sentinel on a qui vive so that the rights of the people particularly the poor sections are maintained. It is canvassed by him that opportunity are to be provided to the needy to live with minimum comforts, namely, food, shelter, health and clothing and when the State has put a progressive step forward to achieve this meaningful purpose in consonance with the Article 21 of the Constitution it should not be condemned on the base that there has been reservation in excess. The aforesaid submissions of Mr. Tankha are quite attractive. They require to be dealt with on existing parameters. We have already referred to the decisions which have upheld 50% of reservation in the arena of appointments. Mr. Tankha has, by aforesaid submission, endeavoured to distinguish the same. We have already indicated that the decisions were rendered in a different context. While so doing we have also referred to the decision rendered in the case of D.M. Nanjjappa (supra). In this context we remember the maxim 'Salus Populi Est Suprema Lex' meaning thereby the welfare of the people is the supreme law and all other maxims of public policies must yield in. It is so because object of all laws is to promote the well being of the society. It is not disputed before us that there are poor landless persons belonging to other categories apart from the people belonging to Scheduled Castes and Scheduled Tribes. True it is, Scheduled Castes and Scheduled Tribes persons have suffered for centuries and, therefore, special treatment is provided for them so that they come up in the society. However, the said aspect can not be allowed to dominate the arena as that would create a sense of heart-burning, uncalled for and unwarranted rivalry and lead to acrimony which the parameters of civilization does not countenance. The society has to sustain itself by creating harmony and building of amiability among the individual who constitute the society. A sense of brotherhood as well as a feeling of sorority should prevail so that all live as a part of the big family. We are conscious equality in all spheres of the society is a Utopian concept and in a way an impossibility to aspire and achieve. But when the idea of distributive justice is conceived we are disposed to think that there should be a synthesization between the agrarian society and the egalitarian one. A part of the society can not be pedestrianized and another part would be allowed to march with marathon speed on the pretext of protective discrimination. It is of immense significance that in the dictionary clause of the circular, the landless persons have been identified and categorised and hence, doctrine of preference can not be introduced to exclude the other category of persons in entirety. That, in our opinion, would amount to anaesthetisation of the concept of welfare State and would anatomize the social fabric which is an anathema to the constitutional goal. In view of the entire factual scenario and taking note of the conspectus of fact situation, we are of the considered opinion that the State by executive instructions can reserve 50% of the land that has come into being by virtue of diversion taking place pursuant to action taken under Section 237 (3) of the Code and that could be distributed amongst the SC & ST categories. At this juncture Mr. Tankha has submitted that some land has already been granted/distributed among SC & ST categories after the date stated hereinbefore. To have a rational approach we think it appropriate to command the State Government not to distribute any further land which have been made available by virtue of operation of Section 237 of the Code. The State shall endeavour to arrange the land apart from the lands set apart under Section 237 (1) and match the same by way of matching land allotment to equalise with 50%. We may clarify that the land which is available in praesenti and which would be brought into the scheme for allotment by the State Government from other types of unoccupied land except the land carved out under Section 237 (1), the said land shall be allotted to the other landless persons as defined under the circular which forms a part of the Revenue Book Circular. We may further clarify that SC & ST persons would be entitled to apply in this match allotment but they will not be conferred any kind of priority or prerogative on the basis of caste. Caste in that regard will have no role to play. Any classification on the base of caste qua aforesaid 50% land would be deemed to be illegal. The State would be at liberty to frame a scheme to make out such further categories to meet the competing equities. Needless to emphasize the scheme will be in consonance with the policy of an egalitarian society taking all aspects into consideration.
28. Before we part with the case we may hereby clarify that if any other individual grievance has remained unanswered it would be open to the petitioners to agitate the same in appropriate legal forum. The State Government shall work out the scheme and bring in land meant for matching allotment within a period of one year from today. It is appropriate to mention that the State Government had defined the landless persons and hence, the notification made in that regard has to be duly followed and no deviancy should be shown in that aspect.
29. With the aforesaid observations and directions the writ petitions stand disposed of without any order as to costs.