J.B.MEHTA, S.H.SHETH - (1.) The petitioners who are occupying Bet or Bhatha lands in the rivers in question challenge in these petitions the Government Resolution dated December 28 1966 by which in cancellation of the existing order regarding the disposal of Bet and Bhatha lands by public auction the Government has directed the said procedure to be discontinued with effect from January 1 1967 and has directed the authorities to dispose of the lands as per the detailed instructions given therein.
(2.) The petitioners claim in these petitions that they were cultivating these lands as tenants except the petitioner in Sp.C.A. No. 1079 of 1967 who claims to be a permanent tenant the case of the petitioners was that at the relevant time they had been given Eksali i. e. one year leases on the 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 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 is 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 petitioners therefore challenged the impugned circular on two 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 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 Art. 14 and the inequality is writ large on the face of the entire order especially as the so called reservations in favour of Harijan Adivasi and backward class people are so exercised that all the 100 per cent lands would get reserved for them under this policy of priority and the petitioners would be completely excluded. In the affidavits filed in reply by the State it is contended that the petitioners have no rights in matters of disposal of Government lands after their Eksali leases have come to an end. This function of the Collector being an administrative function and as the Governments own lands were disposed of by the Collector such orders can be issued by the Government under the Code particularly under sec. 37 by laying down the principles for proper selection of the persons who could be granted leases of the Bet or Bhatha lands. The State had emphatically controverted the allegations of the petitioners that the Bet or Bhatha lands were river bed lands but as regards their being unalienated and unoccupied lands the allegation has not been controverted. It is further pointed out in their affidavit in reply that as for the instructions in the said resolution priority is given to the Co operative society Harijan Adivasi and backward class people. The State however relied for this preferential treatment on the special provisions of the Constitution and on the directive principles mentioned in the Constitution which justify these classifications on a rational basis. It is also contended that this resolution really achieved social and economic justice. As the earlier affidavit was not exhaustive when the matter came up for hearing the matter was adjourned for some time permitting the State to file additional affidavit. In the additional affidavit the history of the orders regarding the Bet and Bhatha lands has been set out. In 1947-48 they were leased out by public auction for a period not exceeding 10 years. Under the order of 1951 they were disposed of by selection without public auction as per the following order of priority :- (1) Bona fide agriculturists who have cultivated the land personally for five years or more (2) Adjacent land holders who in the Collectors opinion had insufficient land for maintenance of their families; (3) Co-operative farming societies; (4) Priority holders under the Waste land Rules. These orders were cancelled on September 19 1952 and it was decided that on the expiry of the existing leases of lands not held by co-operative farming societies the disposal of Bet Bhatha lands should be made on five years lease by public auction. Thereafter the affidavit is silent as to how the Eksali system again came into force. It is further stated that it was felt that by giving lands on auction only rich people managed to take the lands in the auction and the landless people and backward people could not get the same. The Government land disposal policy is not based on any profit motive but on principles of social justice which necessitate a proper distribution of land amongst the needy and economically backward persons. It was for this purpose that the Government had acquired lands from the Jagirdars and Girasdars and it was also with that view that the Land Ceiling Act and Waste Land Rules were framed. If Government was moved by any profit motive it could have framed rules for disposal of all lands by public auction. It certainly would have brought to Government a very large revenue by doing so but the Government would have violated the principles of social justice to which it has committed itself under the Constitution. In a meeting of the Collectors the matter was therefore discussed and they were in favour of disposal of these lands without auction and there was a growing feeling amongst M. L. As. and others that the disposal of Bet and Bhatha lands by auction would act harshly on the needy cultivators who genuinely require the lands for their maintenance. Therefore on the basis of the policy decision taken at the Government level the impugned circular was issued by way of administrative instructions after considering various factors and the existing policy before the dale of the resolution and looking to the need for helping farming co-operative societies small holders Harijan Adivasi backward class persons and landless labourers. In these circumstances the Government justified the impugned order.
(3.) Miss Dabu and other advocates of the petitioners raised the following two grounds at the hearing:- (1) That the impugned order is ultra vires the Code as it is inconsistent with the rules and is not for the purposes of the Act and as it excludes persons from being eligible to tee statutory disposal of Government lands. (2) That the impugned order is wholly discriminatory and is hit by Art. 14 as it is a class legislation for a collateral purpose and in the guise of selection or reservation it excludes all other eligible persons. ;