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2003 DIGILAW 98 (MP)

State of M. P. v. Nilendra Pratap Singh

2003-01-16

DIPAK MISRA, S.K.KULSHRESTHA

body2003
JUDGMENT : DIPAK MISRA, J. 1. Sustainability of the composite order dated 5-8-2002 passed by the learned Single Judge in Writ Petition No. 2496/2002 and other connected matters is called in question in this batch of appeals in invocation of jurisdiction of this Court under clause 10 of the Letters Patent. Taking comprehensive range of facts into consideration we would compendiously set out the essential physiognomy that has been catalytic catapult to spiral the controversy to this Court. 2. As is discernible from the order, the private respondents invoked the extraordinary jurisdiction of this Court for quashment of the circular dated 2-3-2002 issued by the State Government containing certain instructions. That apart, the assail was made to the action of the State Government whereby the allotment of pasture, grass, bir, fodder reserve land commonly known as ‘Charnoi’ land was made on the argumentation that the lands reserved under section 237(1) of the M.P. Land Revenue Code, 1959 (hereinafter referred to as ‘the Code’) could not have been diverted in exercise of power under section 237(3) and the same could not have been exclusively demarcated for distribution amongst the scheduled castes and scheduled tribes persons. It was pleaded that the lands reserved for public purpose cannot be allotted to private individuals for private purpose. It was also set-forth that the reduction of ‘Gochar’ land from 5% to 2% was against the scheme of the Code. In addition to the aforesaid it was contended before the learned Single Judge that the action of the Government in directing allotment to scheduled castes and scheduled tribes persons is illegal and contrary to law and violative of Articles 14 and 15 of the Constitution of India. The circular was attacked on the ground that the same travels beyond the envisagement and stipulation of the Code, which is impermissible in law. 3. The stand and the stance of the petitioners in the writ petitions were resisted on the ground that when the State authorities have acted in accord with the statutory provisions the same is beyond reproach and cannot be the subject of challenge in a writ petition of this nature. 3. The stand and the stance of the petitioners in the writ petitions were resisted on the ground that when the State authorities have acted in accord with the statutory provisions the same is beyond reproach and cannot be the subject of challenge in a writ petition of this nature. It was pleaded that action has been taken in accordance with the various provisions of the Code as amended by the State Legislature and the action so taken not being in dissonance with the provisions of the Code, the circular which has come into being on the bedrock of the statutory provisions, the assail to it was a sysiphian endeavour by the petitioners inasmuch as they had not questioned the validity of the provisions of the Code. The amendments inserted into the Code was pressed into service to uphold and justify the circular. Reasons were ascribed why the amendments were made in respect of section 237 of the Code. Thus, the real marrow of objection of the State was that without condemnation and disapprobation all the amendments brought into the parent statute and the circulars, the action taken in pursuance of the same could not be lanceted. 4. The learned Single Judge after hearing the learned counsel for the writ petitioners and the learned counsel for the State has come to hold that the executive instructions issued on various dates, eventually attaining concritized culminative shape, vide circular dated 2-3-2002, is not sustainable as there has been no amendment in respect of certain provisions of the Code as a consequence of which the amendment to section 237(3) of the Code is of no avail. To arrive at the said conclusion the learned Single Judge has relied on a Division Bench decision of this Court rendered in the case of Amar Singh vs. Raghuvir Singh and Others, 1980 MPRN 6. The learned Single Judge has further held that vires of section 237 is not necessary to be challenged inasmuch as the executive instructions have been issued in derogation of the provisions of sections 234 to 237 of the Code. It has further been held by him that the decision of this Court rendered in the case of Amar Singh (supra) thwarts the attempt to convert other land reserved under section 237(1) of the Code. Emphasis has been laid on environment, conversion, growth of cattle, need of population and ecological balance. 5. It has further been held by him that the decision of this Court rendered in the case of Amar Singh (supra) thwarts the attempt to convert other land reserved under section 237(1) of the Code. Emphasis has been laid on environment, conversion, growth of cattle, need of population and ecological balance. 5. The further findings which have been recorded by the learned Single Judge are that in the circular there has been use of the expression ‘maximum’ though enactment does not so spell. The learned Judge has also arrived at the conclusion that the ‘maximum’ can be ‘more’ as per the requirement of the day and the future and the requirement of the village concerned is to be taken into consideration as per the mandate of the Code. Being of this view the learned judge has ultimately expressed the view as under:- “(73) Resultantly, the circular dated 2-3-2002 (R-6) is quashed and consequently the circular dated 19-9-2000 and the circulars R-1 to R-5 which have merged in final modified circular dated 2-3-2002, falls down and the action taken pursuant thereto is illegal and void, the respondents are restrained from converting the land and directed to preserve the land for the public purpose for which it has been reserved and to use the land for the purposes it has been reserved under section 237 of the Code. Respondents are restrained from converting the land reserved under section 237 and to allot it to any persons on the basis of said circulars. It is further directed that such lands which have been reserved under section 237 be freed from encroachment expeditiously.” 6. We have heard Mr. V.K. Tankha, learned Advocate General along with Mr. Hemant Shrivastava, learned Government Advocate for the appellants and Mr. L.S. Baghel and other counsel for the respondents. 7. At this juncture we may state that a batch of writ petitions were filed challenging the vires of section 237(3) of the Code and the circular dated 2-3-2002. While hearing the said writ petitions we have held that the amendment of section 237(3) is not unconstitutional. Before us the English translation of the circular was produced. 7. At this juncture we may state that a batch of writ petitions were filed challenging the vires of section 237(3) of the Code and the circular dated 2-3-2002. While hearing the said writ petitions we have held that the amendment of section 237(3) is not unconstitutional. Before us the English translation of the circular was produced. The circular was attacked on three counts, namely, that the circular is couched in such a manner as if the land which has been set apart for grazing or ‘charnoi’ is 2 percent though the statute clearly speaks that minimum should be 2% that when there would be deficit of land the Collector can acquire other land and distribute the same and that the preference clause which has been incorporated in the circular tantamounts to 100% reservation of the land in favour of scheduled castes and scheduled tribes which not only offends dictionary clause of the circular but also runs counter even to the concept of protective discrimination. In the said batch of writ petitions after holding the statutory provisions as constitutional as it does not offend any of the provisions either of the constitution or any enactment we proceeded to deal with the circular. In paragraph 20 of the said decision we have held as under:- “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. 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 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.” 8. 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.” 8. Thereafter, we proceeded to deal with the priority clause after referring to various facets of the circular, statistical information and came to hold how the same amounted to 100% reservation. We have referred to the concept of political empowerment and conception of economic empowerment and relied upon the decisions rendered in the case of M.R. Balaji and Others vs. State of Mysore and Others, AIR 1963 SC 649 and Indira Sawhney vs. Union of India and Others, AIR 1993 SC 477 and thereafter in paragraphs 25 to 28 held as under:- “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 D.M. Nanjjappa vs. S.A. Ramappa and Others, 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. 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. (ii) Whose gross annual income does not exceed rupees eight thousands. (iii) Who is either a bona fide agriculturist cultivating the land personally or has bona fide intention to take up personal cultivation. (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. 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 percent (ii) Persons belonging to Scheduled Castesand Scheduled Tribes 50 percent (ii-a) Backward Tribes 5 percent (iii) Political sufferers 10 percent (iv) Others 25 percent (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 village or 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 taluka. (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. 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 put-forth 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 ingredients 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 and 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 parameter. We have already referred to the decisions, which have upheld 50% of reservation in the arena of appointments. Mrs. 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. 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 cannot be allowed to dominate the arena as that would create a sense of heartburning, uncalled 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 agararian society and the egalitarian one. A part cannot be pedestrianized and another part of the society would be allowed to march with marathon speed on the pretext of protective discrimination. It is immense significance that in the dictionary clause of the circular, the landless persons have been identified and categorised and hence, doctrine of preference cannot 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 and ST categories. At this juncture Mr. 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.” 9. In view of the aforesaid conclusions of ours the findings recorded by the learned Single Judge have to yield to the same. 10. Resultantly, the order passed by the learned Single Judge is set aside. In view of the aforesaid conclusions of ours the findings recorded by the learned Single Judge have to yield to the same. 10. Resultantly, the order passed by the learned Single Judge is set aside. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.