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PETITIONER: STATE OF GUJARAT & ANR.

       Vs.

RESPONDENT: VAGHELA DAYABHAI CHATURBHAI & ORS.

DATE OF JUDGMENT05/03/1980

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SHINGAL, P.N.

CITATION:  1980 SCR  (2)1182        1980 SCC  (3) 318

ACT:      Constitution of  India 1950,  Bombay Land  Revenue Code 1879 & Bombay Land Revenue Rules 1921-Allotment and grant of cultivation  rights  over  ’Bhatha  lands’-State  Government Resolution providing  for preference  to harijans,  adivasis and  backward   class  people-Constitutional   guarantee  of equality under Article 14-Whether violated.      Words & Phrases-’Bhatha lands’-Meaning of

HEADNOTE:      The expression  "bhatha land"  means land  which  forms part of  the bed  of a  river on  which  vegetables,  melon, cucumber etc.  can be grown during the lean period after the rainy season  is over,  when the  level of  the water in the river is quite low. The cultivation of such land is possible only till  the next  rainy season as the land gets submerged under the  river water.  The occupancy rights over such land cannot ordinarily  be granted on a permanent basis as in the case of  cultivable lands, in view of the fact that the land gets submerged  under the  river water  every year  for  4-5 months.      Till the  year 1951 the cultivation rights over ’bhatha lands’ were disposed of by public auction and the successful bidders were  treated as  lessors of  the  lands  for  short periods. In the year, 1951 the State Government ordered that the leasehold  rights over ’bhatha lands’ should be disposed of by  selection, the  order of priority being (1) bona fide agriculturists who  had cultivated  the land  personally for five years  or more,  (2)  adjacent  land  holders  who  had insufficient land  for maintenance  of their  families,  (3) cooperative farming societies and (4) priority holders under the Waste Land Rules.      This order  was however cancelled and superseded by the Government  Resolution   dated  September   19,  1962  which provided that on the expiry of the then existing leases, not held by cooperative farming societies, bhatha land should be disposed of  on the  basis of  five years’  lease by  public auction. Experience showed that only the moneyed people were able to  purchase the leasehold rights at the public auction and persons  belonging to  Scheduled  Castes  and  Scheduled Tribes and  the other  weaker sections  of society  were not even able  to participate in such auctions. Consequently, in the year  1964  leasehold  rights  over  bhatha  lands  were

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disposed of on ekasal basis by public auctions.      The question  relating to  the  disposal  of  leasehold rights over bhatha lands was discussed at the meeting of the District Collectors  held in  1965-1966 and  in pursuance to the suggestions  made at  the meeting  and after considering all relevant  matters the  State Government  by a Resolution dated  28th  December,  1966,  directed  that  the  existing procedure  for  disposal  of  bhatha  lands  by  auction  be discontinued with  effect  from  January  1,  1967  and  the disposal of  such lands  were ordered to be in the following priority: (1)  bona fide  agriculturists of  the village who were holding  land less than 5 acres, preference being given to harijans,  adivasi and  backward class people (2) holders of the land adjoining the 1183      bhatha land  holding less  than  16  acres  and  having genuine need  of additional  land for  maintenance of  their families; (3)  cooperative farming  societies  of  harijans, adivasi and backward classes people, (4) cooperative farming societies consisting  of landless labourers or small holders and (5)  any of  the priority  holders under  the Waste Land Rules.      In pursuance to the aforesaid Resolution, the Collector by his  Order  dated  July  18,  1967,  granted  22  members belonging to  Waghari Harijan  Community leasehold rights in respect of bhatha lands for a period of 10 years.      The  respondents   questioned  the   validity  of   the Government Resolution  dated December 28, 1966 and the Order of the  Collector dated July 18, 1967 granting the lease, in their writ petitions. They alleged that some of them were in possession of  portions of  the land  of which they had been dispossessed by  the Order of the Collector by virtue of the eksal tenures  created in  their favour in the auctions held in or  about the  year 1964  and  that  they  could  not  be dispossessed without  following the  procedure prescribed by section 79(A)  read with  section 202  of  the  Bombay  Land Revenue Code,  1879. They also contended that the Government Resolution dated  December 28,  1966 and  the grants made by the Collector  on the  basis of  the  said  Resolution  were liable to  be struck  down on  the  ground  that  they  were violative of  Article 14  of the  Constitution and that they had been  arbitrarily deprived  of an  opportunity to  offer bids at public auctions and to acquire leashold rights.      The State  Government contested  the petitions  on  the ground that none of the respondents was in possession of the lands in question on the date of the writ petitions and that some of  them who  continued  to  remain  in  possession  of certain portions  of the  land after the expiry of the eksal lease were  dispossessed in accordance with law and that the lands have been handed over to the grantees as per the Kabza receipts. The Resolution dated December 28, 1966, was passed in order to grant lease in respect of bhatha lands in favour of the  landless persons  or persons  having small extent of lands or  persons belonging  to Scheduled  Castes, Scheduled Tribes and  backward  classes  and  members  of  cooperative societies at  reasonable  rent  without  being  put  to  the necessity of  offering bids  at public  auctions, where only moneyed persons could become successful bidders.      The High  Court quashed  the Resolution on two grounds: (1) That  the act  of the  State Government  in passing  the Resolution amounted  to a  fraud on the Statute as the power of the State under the Code which was a taxation measure had been utilized  for  a  collateral  purpose  of  achieving  a welfare scheme  and (2) that the Resolution was violative of Article 14  of the  Constitution as  there was  no  rational

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nexus between  the object  to be  achieved by  the Code viz. realisation  of  land  revenue  and  the  classification  of persons eligible  for the  grant  of  lease-hold  rights  in respect of  bhatha lands  into several  groups.  It  further directed the State Government not to take into consideration the Government’s  circular issued  pursuant to  the impugned Resolution while  considering the  question  of  renewal  of leases or disposal of bhatha lands and not to dispossess the writ petitioners except in due course of law.      Allowing the appeals, ^      HELD: 1(i)  The Preamble  of the  Code provides that it had been passed as it was found expedient to consolidate and amend the law relating to Revenue 1184 Officers and  to the assessment and recovery of Land Revenue and  to   other  matters   connected   with   Land   Revenue Administration. [1193B].      (ii) The  other provisions  of the  Code and  the Rules made thereunder  show that  it is  open to  the Collector to dispose of  unoccupied lands  belonging  to  the  Government either for cultivation or for any other purpose in favour of individuals or  aggregate  of  individuals  either  free  of charge or  at an upset price to be fixed by him or by public auction. A  review of  the several  Government orders passed under the  Code shows that lands belonging to Government had been set  apart free  of charge  for several public purposes such as  free pasturage,  burial grounds,  roads,  religious institutions, dhobies’  ghats, potters’  grounds,  threshing floors etc.  Land  revenue  was  remitted  when  there  were drought conditions. Forfeited holdings were often given back to defaulters  who had  not paid land revenue once again, on payment of  arrears out  of compassion.  Tagavi  loans  were given by  Government to  occupants  to  improve  lands.  The dominant purpose of the Code, therefore appears to be public welfare, even  though land  revenue  which  was  recoverable under the Code constituted an important source of revenue of the State Government. [1196A-E]      (iii)  After  India  became  independent,  land  reform measures had  to be  introduced by  the States  in India  to prevent concentration  of land  in a few hands and to impose ceiling on  the extent  of land  that could  be held  by  an individual or  a family,  to take  possession of  land  from individuals or  families which  was in excess of the ceiling so imposed  and  to  distribute  such  excess  land  amongst persons belonging  to Scheduled Castes, Scheduled Tribes and other weaker  sections of  society. All these laws were made in order  to implement  the Directive  Principles  of  State Policy  contained   in  Articles   38,  39  and  46  of  the constitution by strengthening agrarian economy. Never before was there  a greater  need as  during the  post-Constitution period for  administering land  revenue laws in an equitable manner so that the economic interests of the weaker sections of the  society and  in particular  of members  belonging to Scheduled Castes  and Scheduled  Tribes  are  protected  and promoted. [1196F-H]      (iv) There  is no  provision in  the Code  or the Rules made thereunder which prohibits disposal of occupancy rights or leasehold  rights in  respect of  unoccupied lands in any manner other than public auction. [1197A]      (v) The  conclusion reached  by the High Court that the basic scheme of the Code was the realization of land revenue by disposing  of unoccupied  lands by  public auction  alone appears to be baseless. [1197B]      (vi) The  finding of  the High  Court that the impugned

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Resolution which  provides for  the disposal of bhabha lands amongst bona  fide agriculturists,  harijans,  adivasis  and backward class  people and  other persons  mentioned therein without resorting  to public  auction but by having recourse to the procedure set out in it is contrary to the latter and the spirit of the Code is set aside. [1197C]      2(i)  The   Resolution  is   designed  to  bring  about distribution of  agricultural lands  as best to subserve the common good  thus eliminating  concentration of  wealth  and means of  production  to  the  common  detriment.  It  helps persons, who are in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. [1199D] 1185      (ii) The classification made in the impugned Resolution of persons  or cooperative  societies who  are  eligible  to secure  grants  of  leasehold  rights,  bears  a  reasonable relation to  the object  with which  the Code is enacted. It cannot be  characterised as arbitrary. There is no infirmity in the above classification. The Resolution aims at bringing about social and economic justice and assists people who are not strong  enough to  secure leasehold  rights at  a public auction for  purposes  of  cultivation.  The  leases  to  be granted are not for any unlimited period. [1199E]      (iii) The  High Court  was in error in holding that the Resolution was  violative of Article 14 of the Constitution. [1199F]      3. The  High Court  did not  record any firm finding on the question of possession of any part of the land by any of the writ petitioners. The direction issued by the High Court to the  State Government  and the Revenue authorities not to dispossess the  writ petitions  except in  due course of law therefore becomes unsustainable. [1191H]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 281-285 of 1970.      From the  Judgment and  Order dated 25/28-4-1969 of the Gujarat High  Court in SCA Nos. 1520, 850, 1079, and 1117 of 1967 and 201 of 1968.      S. T. Desai, P. H. Parekh, C. B. Singh and M. N. Shroff for the Appellants.      Mrs. E. Udayarathnam for respondent No. 1 in CA 284/70.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.-These five appeals by certificate are preferred  by  the  State  of  Gujarat  against  the  common judgment dated April 25/28, 1969 delivered in five petitions under Article  226 of  the Constitution  on the  file of the High Court  of Gujarat  in which the constitutional validity of the  Resolution of  the Government of Gujarat bearing No. L.B.B.  3964/101585-C   dated  December   28,  1966  issuing directions regarding  the procedure  to be  followed in  the disposal of  ’bhatha lands’ with effect from January 1, 1967 inter alia  providing for  showing preference  to  Harijans, adivasis, backward  class persons  and co-operative  farming societies consisting  of landless labourers or small holders in the  matter of  cultivation rights  over bhatha  land was challenged. The  expression ’bhatha  land’ means  land which forms part of the bed of a river on which vegetables, melon, cucumber etc.  can be grown during the lean period after the rainy season  is over  when the  level of  the water  in the river is quite low. The cultivation of this land is possible only till  the next  rainy season  and when the river swells

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during the  rainy season, the said land again gets submerged under the river water. The occupancy rights over such land 1186 cannot ordinarily  be granted on a permanent basis as in the case of  other cultivable  lands in view of the land getting submerged under  river water  every year for 4-5 months. The lands in  question are  situated in  the Bombay  area of the State of Gujarat. Till the year 1951, the cultivation rights over bhatha  lands  in  the  area  in  question  were  being disposed of  by public  auction and  the successful  bidders were being  treated  as  lessees  of  the  lands  for  short periods. In the year 1951, the State Government ordered that the leasehold rights over bhatha lands should be disposed of by selection in the following order of priority:-           1.   Bona fide  agriculturists who  had cultivated                the land personally for five years or more.           2.   Adjacent land holders who, in the Collector’s                opinion,   had    insufficient    land    for                maintenance of their families.           3.   Co-operative farming societies and           4.   Priority holders under the Waste Land Rules.      The above  order was  cancelled and  superseded by  the Government  Resolution   dated  September   19,  1962  which provided that on the expiry of the then existing leases, not held by  co-operative farming societies, bhatha lands should be disposed  of on  the basis of five years’ lease by public auction. Experience showed that only the moneyed people were able to purchase the lease-hold rights at the public auction and persons  belonging to Scheduled Castes, Scheduled Tribes and other  weaker sections  of society were not even able to participate in  such auctions.  In the  year  1964  however, lease-hold rights  over bhatha  lands were  disposed  of  on eksal basis  by public auction. The question relating to the procedure to  be followed  in the disposal of the lease-hold rights over bhatha lands was discussed at the meeting of the Collectors  held   in  1965-66   and   after   taking   into consideration all  relevant matters and the suggestions made at the  above said  meeting, the State Government passed the following  Resolution   in  supersession   of  all  existing orders:-                    "Government of Gujarat                      Revenue Department                   No. L.B.B. 3964/101585-C                  Sachivalaya, Ahmedabad-15                       Date: 28-12-1966                   RESOLUTION OF GOVERNMENT      In cancellation  of all  existing orders  in regard  to disposal of  Bet and  Bhatha land  by auction, Government is pleased to direct that 1187 existing procedure  of disposal  of Bhatha  land by  auction should be  discontinued from 1st January, 1967 and such land should be  disposed of  according to  instructions  detailed below:-           1. The existing lease held by co-operative society      should be  renewed on  their expiry only to the members      of co-operative  society. Individually  held land  less      than 16  acres excluding  the bet-bhatha  land and  the      total holding  of the  number including  the land to be      granted is  not more  than the  member  or  members  16      acres.           2. If  condition (1)  is fulfilled  the  lease  in      favour of  the co-operative societies should be renewed      for a  further period of 10 years on payment of revised      rent which  should be fixed on the basis of the factors

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    enumerated hereinafter instruction number (6) below.           3. As  regards Bhatha lands which have been leased      in favour  of individuals  such  lease  should  not  be      renewed but  on the  expiry of  such  lease  the  lands      should be disposed of to priority holders as enumerated      in  instruction   No.  5  on  payment  of  rent  to  be      determined  on  the  basis  of  factors  enumerated  in      instruction No.  6. There will be no objection to renew      the lease  in  favour  of  such  individual  if  he  is      otherwise eligible as per principles fixed in this G.R.           4. As regards new Bet Bhatha lands which are to be      disposed of  for the  first time  they should  also  be      granted to priority holders as mentioned in instruction      No. 5,  on the  basis of rent charged for similar lands      which  have   been  disposed  of  as  per  instructions      contained in the G.R. or which have been disposed of in      the past by auction.           5. The  priority for  disposal of  Bet Bhatha land      should be as under:-           1. Bona fide agriculturists of the village who are      holding land less than 5 acres. Preference in this case      will be  given to  Harijan adivasi  and backward  class      people.           2. Holders  of the  land adjoining  the Bet Bhatha      land holding  land less  than 16  acres and  who in the      opinion of  Collector have a genuine need of additional      lands for  maintenance  of  their  families.  Inter  se      preference in this case also will be as per (1) above.           3. Co-operative  farming  societies  of  Harijans,      adivasi and backward class persons. 1188           4. Co-operative  farming societies  consisting  of      landless labourers or small holders.           5. Any  of the  priority holders  under the  waste      land rules. The individuals as well as co-operatives of      the village  in which the Bet Bhatha lands are situated      will have  their first  priority while  the individuals      and co-operative  societies  of  neighbouring  villages      within a  radius of  5 miles shall be given priority in      the order of nearness from village where the Bet Bhatha      Lands are  situated. If  there are  claims of two equal      priority holders for the same land the disposal will be      by lots."      Thereafter  twenty-two  members  belonging  to  Waghari Harijan community  were granted lease-hold rights in respect of a  bhatha land  for a period of ten years pursuant to the above Government Resolution by the Collector of Ahmedabad on July 18,  1967. The  relevant part of the aforesaid order of the Collector dated July 18, 1967 reads as follows:-                     No. C.B.A.R.E.V. 165                 District Collector’s Office                          Ahmedabad                           18-7-67           .....           .....                    .....                            ORDER      It is  hereby ordered  that under  mentioned twenty-two members of  Waghari Harijan  Ganotia  Samuha  Kheti  Mandali (unlimited)   Santhal,   have   been   granted   lands   for cultivation, out  of the  Government BHATHA-LANDS,  for  the period of  ten years  each member not to have more than four acres of land, on the conditions hereinafter mentioned.            .....              ...            .....      Names of  members of the Waghari Harijan Ganotia Samuha Kheti Mandali (unlimited)             .....           ......               .....

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TERMS           1.   These lands are granted on the condition that                Waghari Harijan  Ganotia Samuha Kheti Mandali                (unlimited) must get itself registered within                one year.           2.   Either  the   individual  or  a  co-operative                society shall not be granted BET-BHATHA LANDS                at more than one place. 1189           3.    Within  the period  of fifteen days from the                date of  the harvest  of the  crop  from  BET                BHATHA  lands   shall  be   paid  up.   Rules                regarding suspension  or  remission  of  land                revenue  shall   not  be  applicable  to  the                realization of this rent.           4.    The  land shall  be cultivated personally by                the   grantee,   unless   under   exceptional                circumstances. The  decision of the Collector                regarding the  existence of  such exceptional                circumstances  shall   be   final   on   this                condition. Lease shall be terminated, without                granting any compensation.           5.    Rent shall be fixed and payable according to                sections 6  and 7  of  Government  Resolution                Revenue Department  No. L.B.B.  3964-101585-G                dated 28-12-1966.           6.    All  conditions mentioned  in PATTA shall be                complied with.           7.    The  Collector shall be authorised to revoke                the lease  deed before  the expiration of the                period of the lease.           8.       Unless  lease  deeds  are  executed,  the                occupation of  the land  shall be  treated as                unauthorised one.      Besides  conditions  mentioned  above,  all  conditions mentioned in  Government Resolution  Revenue Department  No. L.B.B. 3964-101585-G dated 28-12-1966 shall be applicable to this grant.      This grant  shall be  valid for the period of ten years from the year 1967-68. This grant expires on 31-5-1977.      Lease deed to be executed and kept in record.                                        Sd/- Niranjan Singh,                                                  Collector,                                              Ahmedabad."      Aggrieved  by  the  above  grant,  the  petitioners  in Special Civil  Application No. 1079 of 1967 which was one of the  writ   petitions  out  of  which  these  appeals  arise questioned the  validity of  the Government Resolution dated December 28,  1966 and  the order  of the Collector granting the lease  dated July 18, 1967 in favour of the said twenty- two persons.  In the  other four  petitions also,  the  said Resolution and  certain grants  made by  the Collector  were questioned. The  petitioners in  all the  petitions  alleged that some  of them  were in  possession of  portions of  the lands which  had been  disposed  of  by  the  order  of  the Collector by  virtue of  the eksal  tenures created in their favour under  auctions held  in or  about the  year 1964 and they  could   not  be  dispossessed  without  following  the procedure prescribed by 1190 section 79-A  read with  section  202  of  the  Bombay  Land Revenue Code,  1879 (hereinafter referred to as ’the Code’). One of  them alleged  that he  was a  permanent tenant  of a portion of  the land.  They contended  that  the  Government Resolution dated  December 28,  1966 and  the grants made by

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the Collector  on the  basis of  the  said  Resolution  were liable to  be struck  down on  the  ground  that  they  were violative of  Article 14  of the  Constitution.  Their  main grievance was  that they had been arbitrarily deprived of an opportunity to  offer bids at public auctions and to acquire lease-hold rights.  They prayed  for the  issue of a writ in the nature  of mandamus  directing the  State Government and the Revenue  authorities not to dispossess them on the basis of the  impugned Resolution of the Government and the orders of  the  Collector.  The  State  Government  and  the  other respondents in  the writ  petitions resisted  the petitions. After hearing  the  parties,  the  High  Court  quashed  the Government Resolution  and the  grants made by the Collector holding that  they were  ultra vires  the scheme of the Code and were  also violative  of Article 14 of the Constitution. The  State   Government  was   directed  not  to  take  into consideration the Government circular issued pursuant to the impugned  Resolution   while  considering  the  question  of renewal of  leases or  disposal of  bhatha lands in question and not  to dispossess  the writ  petitioners except  in due course of law. The State Government has questioned the order made by the High Court in these appeals.      Before going into the question relating to the validity of the  impugned Resolution  and  the  grants  made  by  the Collector, it is necessary to deal with the question whether any of  the writ petitioners were in possession of the lands in question.  The allegation made by them in this regard was denied by the State Government. In the course of the counter affidavits filed  before the  High Court,  it was pleaded on behalf of  the  State  Government  that  none  of  the  writ petitioners was in possession of any portion of the lands in question on  the date  of the petition that some of them who continued to remain in possession of certain portions of the land after  the expiry of the eksal leases were dispossessed in accordance  with law  and that  the land  had been handed over to the grantees as per kabza receipts. Dealing with the question of  possession, the  High  Court  observed  in  the course of its order as follows:-           "The petitioners  claim in  these  petitions  that      they were  cultivating these  lands as  tenants, except      the petitioner  in Sp. C.A. No. 1079/1967 who claims to      be a  permanent tenant. The case of the petitioners was      that at  the relevant  time they  had been given Eksali      (of one year) leases on the 1191      expiry of  which their  right of renewal was completely      taken away  by the aforesaid circular. The circular had      completely fettered  the discretion  of  the  competent      authorities under  the Bombay  Land Revenue Code, 1879,      hereinafter referred  to as  ’the Code’ and had created      an absolute  rule excluding  the petitioners so much so      that they  could not  even now give a bid at any public      auction for  these lands.  Even though  in Sp. C.A. No.      1079/67 the  case of  the petitioner  was of a lease in      perpetuity the  State had  controverted this allegation      and no  such grant  was produced. The case of the State      was that the petitioner was in illegal possession after      the Eksali  lease in  1964. Therefore,  even that  case      also stands  on the  same footing.  In view of the said      disputed questions of facts which cannot be resolved by      us, the  petitioner, therefore, challenged the impugned      circular on  the grounds (1) that it is ultra vires the      Code,  especially   as  it  creates  an  absolute  rule      excluding the  petitioners who would have been entitled      under the  provisions of  the Land  Revenue Code to get

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    these leases  by bidding  at the  public auction as per      the  relevant   rules.  The   impugned  order  in  this      connection violates  the policy of the Code which is to      augment the  Government  revenue  and  which  does  not      contain any  policy of  excluding any  person from  the      disposal of these unalienated Government lands, (2) the      petitioners, further  challenge the  impugned order  on      the ground  that  it  is  discriminatory  and  violates      Article 14 and the inequality is writ large on the face      of  the   entire  order   especially  the   so   called      reservations  in   favour  of  Harijans,  adivasis  and      backward class people are so excessive that all the 100      per cent  lands would  get reserved for them under this      policy  of   priority  and  the  petitioners  would  be      completely excluded."      There is  no reference to the question of possession of the land  by the  respondents  in  any  other  part  of  the judgment of the High Court. From the portion of the judgment extracted above,  it is  seen that  the High  Court did  not record any firm finding on the question of possession of any part of  the land  by  any  of  the  writ  petitioners.  It, therefore, follows  that the  direction issued  by the  High Court to  the State  Government and  the Revenue authorities not to  dispossess the writ petitioners except in due course of law  becomes unsustainable. What remains to be considered in these  appeals is whether the impugned Resolution and the orders of the Collector are valid or not. 1192      There is  no dispute that the writ petitioners were not eligible under  the impugned  Resolution for any grant being made in preference to the grantees in these cases and if the impugned  Resolution  is  valid,  the  grants  made  by  the Collector become unassailable. It is on account of the above position the  writ petitioner challenged the validity of the Resolution passed  by the  Government on  December 28, 1966. The High  Court quashed  the said Resolution on two grounds: (1) that  the act  of the  State Government  in passing  the Resolution amounted  to a  fraud on the statute as the power of the State under the Code which was a taxation measure had been utilized  for  a  collateral  purpose  of  achieving  a welfare scheme  and (2) that the Resolution was violative of Article 14  of the  Constitution as  there was  no  rational nexus between  the object  to be  achieved by  the Code  viz realization  of  land  revenue  and  the  classification  of persons eligible  for the  grant  of  lease-hold  rights  in respect of  bhatha lands  into several  groups. On the first ground, the High Court observed as follows:-           "The  Code   in  terms   directs   the   statutory      authority, the  Collector to  make disposal  exercising      his judicial  discretion, of  course,  subject  to  the      statutory rules  or even  subject to  the orders of the      Government  which   have  statutory  force.  The  whole      purpose and object of the Land Revenue Code is never to      exclude any  citizen, and  such exclusion  by way of an      absolute  rules  leaving  no  discretion  even  to  the      statutory authority  would  be  completely  beyond  the      scope  of   a  regulatory   measure.  This   would   be      prescribing the  end and  not prescribing  means to  an      end. The  end has  been laid down by the Legislature in      this case and it is one of augmenting the land revenue,      and for  the purpose  of revenue  administration  under      this Code,  if any disposal is made, the disposal would      be ordinarily  to augment  land revenue. It may be that      in exceptional  cases, the authority may give remission      as in  famine years  or  on  other  grounds  which  are

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    specified under  the scheme  of the  Code or the Rules.      The end  which is  envisaged to be achieved by the Code      is one  of  getting  revenue  augmented  which  is  the      obvious end  of any taxation measure. The end which the      impugned regulation  seeks  to  achieve  is  totally  a      different end."      From a  reading of  the above  observations of the High Court, it  becomes obvious that the High Court felt that the Resolution which  had been  passed with  a view  to  showing preference  to   members  belonging   to  Scheduled  Castes, Scheduled Tribes  and backward classes, landless persons who belonged to the weaker sections of 1193 society and  members of  co-operative farming  societies did not subserve  the object  of the  Code i.e.  realization  of maximum revenue.  The High Court also felt that there was no scope for  the passing  of any  order or  resolution in  the nature  of   a  welfare   measure  while  administering  the provisions of  the code. In order to examine the correctness of the  above view  of the  High Court,  it is  necessary to refer to  some of  the relevant  provisions of the Code. The Preamble of  the Code provides that it had been passed as it was  found  expedient  to  consolidate  and  amend  the  law relating to  Revenue officers  and  to  the  assessment  and recovery of Land Revenue and to other matters connected with the Land  Revenue Administration. Chapters II and III of the Code  deal   with  constitution  powers  officers  provision relating to  the security to be furnished by certain Revenue officers and  the  liability  of  principals  and  sureties. Chapter V  of the  Code  is  entitled  ’Of  Lands  and  Land Revenue’ and  contains sections  37 to 59. Section 37 of the Code declares  that ’all  public roads, loans and paths, the bridges, ditches,  dikes, and  fences, on,  or  beside,  the same, the  bed of  the sea  and of harbours and creeks below high watermark,  and of  rivers, streams, nallas, lakes, and tanks, and  all canals,  and water-courses, and all standing and flowing  water, and  all lands  wherever situated, which are not  the property  of individuals,  or of  aggregates of persons legally  capable of  holding property, and except in so far  as any  right of such persons may be established, in or over the same, and except as may be otherwise provided in any law  for the  time being  in force  are and  are  hereby declared to  be, with  all rights,  in or  over the same, or appertaining thereto,  the property of the Government and it shall be  lawful for  the Collector  subject to the order of the State  Government, to  dispose of them in such manner as he may  deem fit,  or as  may be authorised by general rules sanctioned by  the Government  concerned, subject  always to the rights  of way, and all other rights of the public or of individual legally  subsisting.’ The aforesaid section 37 of the Code  vests the  rights in  all properties  referred  to therein the  State Government and provides that it is lawful for the  Collector  subject  to  the  orders  of  the  State Government to  dispose of them in such manner as he may deem fit or  as may be authorised by the general rules sanctioned by the  Government. The State Government is thus constituted the proprietor  of the  several items  referred to  therein. While the  Collector has been given the power of disposal of the land  belonging to  the Government, he can do so only in accordance with  the other  provisions of  the Code  and the Rules made thereunder and subject to any order or resolution passed by  the State  Government. The  power  of  the  State Government to make orders under section 37(1) of the Code is not in the 1194

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nature of  appellate or  revisional powers  which are  dealt with separately  under sections  203 and 211 of the Code but is in  the nature  of an  administrative power  enabling the State Government  to regulate  the power  of the  Collector. Section 38 of the Code authorises the survey officers whilst survey operations  are proceeding  under Chapter VIII of the Code and  at any other time the Collector to set apart lands which belonged to the State Government and not in the lawful occupation  of  any  person  or  aggregate  of  persons,  in unalienated villages  or unalienated  portions of  villages, for free  pasturage  for  the  village  cattle,  for  forest reserves, or  for any other public or municipal purpose; and lands assigned  specially for  any such purpose shall not be otherwise  used  without  the  sanction  of  the  Collector. Section 39  of the  Code restricts  the right of grazzing on free  pasturage-lands  to  the  cattle  of  the  village  or villages to  which such  lands belong or have been assigned. Section 44  of the  Code recognizes the existence of certain privileges of  villagers or of certain classes of persons to cut fire-wood  or timber for domestic or other purposes even in the  case of villages or lands in which the rights of the Government to  the trees have been reserved under section 40 of the  Code. Section  48 of the Code sets out the manner of assessment and  alteration of  assessment of  any  land.  It provides that the land revenue leviable on any land shall be assessed with  reference to  the use of the land-(a) for the purpose of  agriculture, (b) for the purpose of building and (c) for  a purpose  other than agriculture or building. Sub- section (3) of section 48 of the Code empowers the Collector or a  survey officer,  subject to  any rules  made  in  this behalf, to prohibit the use for certain purposes of any land liable to the payment of land revenue and to summarily evict any holder who uses or attempts to use the same for any such prohibited purpose.  Chapter VIII lays down the procedure to be  followed   in  the   course  of  survey  and  settlement proceedings  thus   ensuring  that  there  is  an  equitable classification  of  lands  for  purposes  of  levy  of  just assessment in  the light  of the  relevant economic factors. The principles  underlying the  said procedure  prohibit the levy of  oppressive or  excessive revenue. There is no scope for levy  of extortionate  revenue which  may be  termed  as rackrent.      Chapter VI  of  the  Code  deals  with  the  provisions relating to  the grant,  use  and  relinquishment  of  land. Section 62  of the  Code  which  lays  down  the  conditions subject to  which unoccupied  land may  be granted  provides that the  Collector may,  subject to  such rules as may from time to  time be  made by  the State Government, require the payment of  a price for unalienated land or to sell the same by auction  or to  annex such conditions as he may deem fit. Rule 37 of the 1195 Bombay Land  Revenue Rules, 1921 (hereinafter referred to as ’the Rules’)  which are  promulgated by the State Government in exercise  of its powers under sections 213 and 214 of the Code provides that any unoccupied survey number not assigned for any  special purpose may, at the Collector’s discretion, be granted  for agricultural  purposes to such person as the Collector’s deems  fit, either upon payment of a price fixed by the  Collector, or  without charge,  or may  be put up to public auction.  When land  is granted under section 62 read with  Rule   37,  the   grantee  acquires  a  heritable  and transferable occupancy  right over the land granted, subject to the  lawful  conditions  imposed  under  the  grant.  The proviso to  section 68  of the  Code, however, provides that

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notwithstanding any  provision in  the Code, it shall not be unlawful for  the Collector  at any time to grant permission to any  person to occupy any unalienated unoccupied land for such period  and on  such conditions  as he  may, subject to rules made  by the State Government in that behalf prescribe and in  any such  case the  occupancy shall be held only for the period and subject to the conditions so prescribed. Rule 32 of  the Rules  provides that  land may  be given  free of price and  free of  revenue, whether  in perpetuity or for a term, for any of the purposes specified in column 1 referred to in the table given below that rule viz. for sites for the construction at  the cost  of a municipality, a panchayat or other local  bodies of  schools or  colleges etc., for sites used or  to be  used in connection with any scheme under the Community Development  Programme, for  sites used  or to  be used  as   market  yards  under  the  management  of  market committees  established   under  the   Gujarat  Agricultural Produce Markets Act, 1963 etc. Rule 35 of the Rules empowers the Collector to exempt from payment of land revenue without any limit  lands used  for sites of hospitals, dispensaries, schools etc.  Under Rule  41 of  the Rules, land situated in the bed  of a river and not included in a survey number can, save as otherwise provided in sections 46 and 64, ordinarily be leased  annually by auction to the highest bidder for the term of one year or such further period as the Collector may think fit  and the  accepted bid  should be deemed to be the land revenue  chargeable on  such land. The language of this rule also  enables the  State Government  to dispose of such lands in  any other  equitable way. This Rule, however, does not apply  to a land which is situated in the bed of a river and which  is included  in a  survey number.  Rule 42 of the Rules empowers  the Collector  to dispose of unoccupied land required or  suitable  for  building  sites  or  other  non- agricultural purpose  either by  public auction  or  in  his discretion by  private arrangement  either upon payment of a price fixed by him, or without charge, as he deems fit. 1196      These and  the other  provisions of  the Code  and  the Rules made  thereunder show that it is open to the Collector to dispose  of unoccupied  lands belonging to the Government either for cultivation or for any other purpose in favour of individuals or  aggregate  of  individuals  either  free  of charge or  at an upset price to be fixed by him or by public auction. A  historical  review  of  the  several  Government orders passed  under the  Code shows that lands belonging to Government had  been set  apart free  of charge  for several public purposes  such as  free  pasturage,  burial  grounds, roads, religious institutions, village sites, cattle stands, dhobies’ ghats, potters’ grounds, threshing floors etc. Land revenue was  remitted when  there were  drought  conditions. Forfeited holdings  were often  given back to defaulters who had not  paid land  revenue once again on payment of arrears out of  compassion. Tagavi loans were given by Government to occupants to  improve lands.  Some of  the Government orders relating to  grants of  lands to  private individuals may be stated here  by way  of illustration. An order passed by the Government of  Bombay in  the year  1931 authorised grant of lands to  kolis and  other  wild  tribes  in  jungle  tracts without payment of any occupancy price. Another order passed in 1924  directed that  grants of  waste  lands  to  members belonging depressed  classes should  be liberally  made.  An order of  the year  1925 for grants of lands to co-operative societies free  of charge. Liberal grants of lands were made to military  pensioners at  concessional  rates.  All  these orders were  passed during  the British  rule by  the  State

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Government in  exercise of  its powers  under the  Code. The dominant purpose  of the  Code,  therefore,  appears  to  be public  welfare,   even  though   land  revenue   which  was recoverable under  the Code  constituted an important source of revenue of the State Government.      After India  became independent,  land reforms measures had to  be introduced  by the  States in  India  to  prevent concentration of  land in  a few hands and to impose ceiling on the extent of land that could be held by an individual or a family,  to take  possession of  land from  individuals or families which  was in  excess of the ceiling so imposed and to distribute  such excess land amongst persons belonging to Scheduled Castes, Scheduled Tribes and other weaker sections of society.  All these  laws were made in order to implement the  Directive  Principles  of  State  Policy  contained  in Articles 38,  39 and 46 of the Constitution by strengthening agrarian economy.  Never before  was there a greater need as during the  post-Constitution period  for administering land revenue laws  in an  equitable manner  so that  the economic interests of  the weaker  sections of  the  society  and  in particular of  members belonging to the Scheduled Castes and Scheduled Tribes are protected 1197 and promoted.  It has  to be mentioned here that there is no provision in  the Code  or the  Rules made  thereunder which prohibits disposal  of occupancy rights or lease-hold rights in respect  of unoccupied  lands in  any manner  other  than public auction.  When it  is felt  that it  is necessary  to acquire excessive  lands in the hands of private individuals for distribution  amongst the  landless and  other deserving persons, it  is equally  necessary to  observe the same rule while distributing  the land  which  belongs  to  the  State Government. In  view of  the foregoing,  we are  of the view that the conclusion reached by the High Court that the basic scheme of  the Code  was the  realization of land revenue by disposing  of  unoccupied  lands  by  public  auction  alone appears to  be baseless. We, therefore, find it difficult to agree that  the impugned  Resolution which  provides for the disposal of  bhatha lands  amongst bonafide  agriculturists, harijans, adivasis  and  backward  class  people  and  other persons  mentioned   therein  without  resorting  to  public auction but  by having  recourse to the procedure set out in it is  contrary to  the letter  and the  spirit of the code. We, therefore,  set aside  the finding  of the High Court on the above question.      We shall  now proceed  to examine  the question whether the impugned  Resolution is  violative of  Article 14 of the Constitution. The grievance of the writ petitioners was that they were  denied the  opportunity to acquire the lease-hold rights at  the public auction as a consequence of the policy of disposal of bhatha lands contained in the Resolution. The finding of  the High  Court on the above question appears to have been  influenced by  its view  on the object with which the Code  was enacted  and this  becomes  obvious  from  the following observation of the High Court:-           "As we have already pointed out, the object sought      to be  achieved is  completely a  collateral object and      the  criteria   which  are   adopted  for  the  alleged      classification viz.  the membership of the co-operative      society and  the persons  being Harijans,  Adivasis  or      backward class  people have  no rational nexus whatever      to the  object of  augmenting land revenue, which would      be the  implicit object  underlying  the  entire  Code,      including this  statutory power of disposal of the said      lands for  the benefit  of the  public. The  Code never

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    contemplated  any   exclusion  of   persons  when  such      statutory power was sought to be exercised by the State      by any statutory order. Therefore, this statutory order      clearly violates  Article 14  of the  Constitution  and      even on that ground it must be struck down."      For the purpose of determining the question whether the impugned Resolution  is  violative  of  Article  14  of  the Constitution or not, it is 1198 necessary to  examine whether  the classification adopted by the  State   Government  is  based  upon  some  intelligible differentia which distinguishes individuals and co-operative societies in  whose favour  grants of  lease-hold rights  in bhatha lands  are required  to be made by the Collector from others  and   whether  the  said  classification  bears  any reasonable relation  to the  object underlying the Code. The High  Court   has  proceeded   on   the   basis   that   the classification made  by the  Resolution does  not  have  any rational relation  to the object of the Code which according to it was realization of revenue and nothing more than that. We have  explained earlier that the object of the Code is to make provision  for an  equitable distribution  of available land amongst  persons who  are in  need of  it. As mentioned earlier, the  State Government  is under  an  obligation  to ensure that  the  ownership  and  the  control  of  material resources of  the community  are so  distributed as  best to subserve the  common good  and the operation of the economic system does  not result  in the  concentration of wealth and means of  production to the common detriment. In India which is predominantly  an agricultural  country, land  forms  the most important  means of  production. It  is well known that unemployment among  the masses  is on  the increase  because employment opportunities are not increasing at the same rate at which  the population is increasing. Consequently we find in India  to day  a large  number of  landless  persons  and persons with  uneconomic holdings in villages who are either unemployed or  under-employed. It is also equally well-known that persons  belonging to  Scheduled Castes  and  Scheduled Tribes form  the bulk  of such landless persons or owners of uneconomic holdings  who are  in need of special care. It is also  the   settled  policy  of  the  State  Governments  to encourage co-operative movement, which is embarked upon with a view  to preventing  exploitation of  economically  weaker sections of  society by  others. The State Government in the instant case  appears to have passed the impugned Resolution in order  to grant  leases in  respect of  bhatha  lands  in favour of  landless persons  or persons  having  very  small extents of  land or  persons belonging  to Scheduled Castes, Scheduled Tribes  and backward  classes and  members of  co- operative societies  at a  reasonable rent without being put to the  necessity of offering bids at a public auction where it is  well known  that  only  moneyed  persons  can  become successful bidders.  The impugned  Resolution lays  down the procedure to  be followed  in  the  disposal  of  lease-hold rights in respect of bhatha lands. It does not relate to all unoccupied lands  available in  the State  of  Gujarat.  The total extent  of bhatha  lands available  in  the  State  of Gujarat when  compared with other available unoccupied lands may be a very small extent. The writ petitioners on whom the burden of proving that the impugned 1199 Resolution  is   discriminatory  have   not  furnished   any information about  the extent  of Bhatha lands available for disposal. Clauses (1) and (2) of the Resolution provide that the existing  leases held by cooperative societies should be

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renewed on  their expiry  only in  favour of  the members of such co-operative  societies subject  to certain  conditions for a further period of ten years on payment of revised rent which should  be fixed  on the basis of the factors referred to therein.  Clause (3)  of  the  Resolution  provides  that leases of  bhatha lands  granted in  favour  of  individuals should not  be renewed  on their  expiry but  they should be disposed of  in favour of bonafide agriculturists who belong to the  weaker sections  of society and co-operative farming societies on  the basis  of priority  set out  in clause (5) thereof. The rent payable by them should again be determined in accordance with the instructions given in the Resolution. The Resolution  is designed  to bring  about distribution of agricultural lands  as best to subserve the common good thus eliminating concentration  of wealth and means of production to the  common detriment.  It helps persons, who are in need of lands  for their  bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent.      The classification  made in  the impugned Resolution of persons or co-operative societies who are eligible to secure grants of  lease hold  rights,  according  to  us,  bears  a reasonable relation  to the  object with  which the  Code is enacted. It  cannot be characterised as arbitrary. We do not find  that   there   is   any   infirmity   in   the   above classification. The Resolution aims at bringing about social and economic  justice and  assists people who are not strong enough to  secure lease-hold  rights of a public auction for purposes of  cultivation. The  leases to  be granted are not for  any   unlimited  period.  At  the  end  of  the  period prescribed in  the leases,  it will be open to the Collector to dispose  them of  afresh. In  the above circumstances, we hold that  the High  Court was  in error in holding that the Resolution was violative of Article 14 of the Constitution.      For the  foregoing reasons, we allow these appeals, set aside the common judgment and order passed by the High Court and  dismiss  the  writ  petitions.  We  feel  that  in  the circumstances of  the case,  the State Government should pay the costs  of respondent  No. 1  in Civil  Appeal No. 284 of 1970. We  order accordingly.  The other  parties shall  bear their own costs. N.V.K.                                Appeals allowed. 1200