Murlidhar
Dayandeo Kesekar Vs. Vishwanath Pandu Barde & Anr [1995] INSC 145 (22 February 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J) Hansaria B.L. (J)
CITATION:
1995 SCC Supl. (2) 549 JT 1995 (3) 563 1995 SCALE (2)672
ACT:
HEAD NOTE:
ORDER
1.
Admittedly, the land bearing Survey No.265 to the extent of II acres 4 gunthas
in Sangamner Badurk Village, Ahmednagar District which belonged
to the State Government was allotted to first respondent, a tribal, in June,
1960.
The
appellant had entered into an agreement with the tribal- allottee on June 27, 1968 initially to purchase 5 acres of
lands and later for the entire extent and sought permission for alienation from
the Collector. Both the Collector and the Commissioner had refused to grant him
the permission.
The
appellant approached the High Court by way of a writ petition. The High Court
rejected the writ petition summarily. Thus this appeal by special leave.
2. Shri
Ganpule, learned senior counsel for the appellant, contended that the first respondent
being a tribal was unable to cultivate the lands and so lawfully entered into
the agreement to sell the lands for valuable consideration, subject to
permission of the Collector. The District Col- lector was in error in refusing
permission for alienation as the Bombay Revenue Code gives such a power. The
appellant was inducted into possession of the land pursuant to the agreement
and he remained in possession and is entitled to retain the same under s. 5 3
-A of the Transfer of Property Act. The authorities were not justified in
refusing permission for alienation, The appellant had improved the lands and,
therefore, is entitled to compensation for the improvements he had effected.
3. The
question involved bears wider constitutional dimensions Mahatma Gandhiji, the
Father of the Nation, in his 'Socialism of My Conception', at page 82-83 stated
that:
"Every
human being has a right to live and, therefore, to find the wherewithal to feed
himself and, where necessary, to clothe and house himself In a well ordered
society the securing of one's livelihood should be, and is found to be, the
easiest thing hi the world. , the test of orderliness in a country is not the
number of millionaires it owns, but the absence of starvation among its
masses."....."Working for economic equality means abolishing the
eternal conflict between capital and labour. It means the levelling down of the
few rich in whose hands is concentrated the bulk of the nation's wealth on the
one hand, and the levelling up of the semi-starved, naked millions on the other
A violent and bloody revolution is a certainty one day, unless there is a
voluntary abdica- tion of riches and the power that riches give and sharing
them for the common good." Rabindranath Tagore poetically portrayed the
plight of a poor farmer thus:
"Bowed
by the weight of centuries he leans, Upon his hoe and gazes on the ground, The
emptiness of ages on his face, And on his back the burden of the world."
4. As
quoted by B.K. Roy in his "Socio- Political Views of Vivekananda", at
52, Swami Vivekananda, speaking on social and spiritual justice, has said
"I do not believe in a God who cannot give me bread here, giving me
eternal bliss in heaven.
Pooh; India is to be raised, die poor are to be
fed, education is to be spread, and the evil of priestcraft is to be removed
... more bread, more opportunity for every body 566 It is well to remember what
Vivekanand said about poor:
"Feel,
my children, feel, feet for the poor, the ignorant, the downtrodden, feel till
the heart stops, the brain reals and you think you will go mad.........
5. The
lament of a Scheduled Caste parent is pithily brought home to his son of their
plight thus :- "Hush, my child; don't cry, my treasure, Weeping is in
vain, For the enemy will never Understand your pain. For the ocean has its
limits Prisons have their walls around, But our suffering and torment Have no
limit and no bound."
6.
Pope Pious has, therefore, said that property arrangements ought to be "an
clement of the social order, a necessary presupposition for men's initiatives,
a stimulus to work for the securing of both the temporal and the transcendent
ends of life, for securing, therefore, the dignity and liberty of man".
The right to property is a basic civil right which has long been recognised.
7. The
India National Congress declared in 1931 in its resolution that "in order
to end the exploitation of the masses, political freedom must include real
economic freedom of the starving millions' and that the Organisation of
economic life must conform to the principles of justice".
The
founding father of the Constitution, therefore, while making the Constitution
on behalf of the people, declared through "We the people of India" in
the Preamble, which is part of the Constitution, to secure to every citizen
justice, social, economic and political, equality of status and of opportunity
with stated liberties to promote among them fraternity and dignity of the
individual in a united and integrated Bharat. Chapter III of Fundamental Rights
and Chapter IV of the Directive Principles have been evolved to accord
socio-economic justice while securing political justice and laid the foundation
in these Chapters to achieve egalitarian social order in Sovereign Democratic
Republic which later was amended by Constitution 42nd (Amendment) Act as
Sovereign Socialist Secular Democratic Republic.
8.
Robson in his 'Welfare State and Welfare Society' has stated at p. 11:
"The
ideas underlying the welfare state are derived from many different sources.
From the French Revolution came notions of liberty, equality and fraternity.
From the utilitarian philosophy of Bentham and his disciples came the idea of
the greatest number. From Bismarck and Beveridge came the concepts of social
insurance and social security. From the Fabian Socialists came the principles
of the public ownership of basic industries and essential services. From Tawney
came a renewed emphasis on equality and rejection of avarice as the mainspring
of social activity.
From
the Webbs came proposals for abolishing the causes of poverty and cleaning up
the base of society." Robson stated at p. 192 "The basic aims of the
welfare state are the attainment of a substantial degree of social, economic
and political equalities and to achieve self-expression in his work as a
citizen, leisure and social justice".
According
to George Watson, quoted by Robson, welfare state implies a redistribu- 567 tion
of incomes for the achievement of basic standard of living for all. M.P. Hall
in his The Social Services of Modern England', has stated at p.303 of 1952 Edn.
that "The distinguishing characteristic of the welfare state is that the
assumption by the community, acting through the State, of the responsibility
for providing the means whereby all its members can reach minimum standard of
health, economic security and civilised living and can share according to their
capacity in its social and cultural heritage". S.G. Sturmey in his 'Income
and Economic Welfare' has stated at p. 142 that "The welfare State. should
take positive measures to assist the community at large to alive to a
collective responsibility towards its weaker members and should take positive
measures to assist them.
9. In
Encyclopedia Britannica, Vol.23, p.389, social welfare has been defined as
"System of laws and institutions through which a government attempts to
protect and promote the economic and social welfare of its citizens are usually
based on various forms of social insurance against unemployment, accident,
illness and old age. " The welfare state is not alien to Indian soil. In Kautilya's,
Arthashastra, it was specifically provided that "In the happiness of the
people lies the happiness of the king.
What
is good to the people is good (for the king). What is pleasant to the king is
not good for him. What is good for the people alone is good for him." In
Vedas and Epics, the duties of the king have diversely been mentioned that the
king acts more than paternal and paternalistic in attitude.
King Ashoka,
Maurya, Akbar Srikrishna Devaraya and Kakatiyas etc. worked for the welfare of
the people. Robert McNamara, President of the World Bank, quoted by Peter
Singer in his "Practical Ethics, 1979, said that society has the moral
obligation to raise above the absolute poverty level those who are in absolute
poverty."
10.
Universal Declaration of Human Rights, 1948, assures in Article 1 that
"All human beings arc born free and equal in dignity and rights."
Article 3 assures that "Everyone has the right to life, liberty and
security of person". Article 17 declares that "Everyone has the right
to own property alone as well as in association with others." Article 22
envisages that "Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort...... and
resources of each State..... of the economic, social and cultural rights
indispensable for his dignity and the free development of his
personality." Article 25 assures that "Everyone has the right to a
standard of living adequate for the health and wellbeing of himself and of his
family including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control." Similarly are the social, civil, economic and
cultural rights given in European Convention.
11.
The Declaration on the Right to Development to which India is a signatory recognising
that development is a com- prehensive economic, social, cultural and political
process, which aims at the constant improvement of the well-being of the entire
population and of all individuals on the basis of their active, free and
meaningful participation in development and in the fair distribution of
benefits resulting 568 therefrom. Article 1 assures that "The right to
development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy
economic, social cultural and political development, in which all human rights
and fun- damental freedoms can be fully realized." Article 2 assures right
to active participation and benefit-of his right to development. Article 3
enjoins the state as its duty to formulate proper national development policies
that aim at the constant improvement of the well-being of the entire population
and of all individuals, on the basis of their active, free and meaningful
participation in development and in the fair distribution of the benefits
resulting there- from. Article 3(1) states that it is a primary responsibility
of the State to create conditions favourable to the realisation of the right to
development. In particular, Article 4(1) directs the State as its duty to take
steps individually and collectively for providing facilities for full realisation
of right to development.
Article
8(1) enjoins that the State should undertake nec- essary measures for the realisation
of the right to development. Article 10 says that steps should be taken to
ensure the full exercise and progressive enhancement of the night to
development, including the formulation, adoption and implementation of policy,
legislative and other measures for legislative and executive measures."
12.
Article 38 of the Constitution of India provides that "The State shall
strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life. In particular,
strive to minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but amongst groups of people residing in different areas or engaged
in different vocations." Article 39(b) directs the State "that the
ownership and control of the material resources of the community are so
distributed as best to subserve the common good". All human rights derive
from dignity and worth in man. Democracy blossoms the person's full freedom to
achieve excellence. The socioeconomic content in directive principles is all
pervasive to make the right to life meaningful to all Indian citizens.
13.
Granville Austin in his "The Indian Constitution's Seamless Web",
Lecture in Rajiv Gandhi Institute for Contemporary Studies, stated that the
founding fathers of the Constitution raised three grand goals for India in the
Constitution :
(i)
Achieving a more equitable society through a transformation they called a
social revolution;
(ii)
Preserving and enhancing national unity and integrity; and
(iii)
Establishing the spirit as well as the institutions of democracy. India could not be truly democratic
unless the social revolution has established the just society. Without national
unity, little progress could be made towards as a social and economic reform or
democracy. Equally, without democracy and reform, India was unlikely either to preserve or
to enhance its unity. Judi- cial system has particular important role to play.
In a welfare state, liberty, equality and fraternity as the trinity and social
welfare are close companions. They are complimentary and supplementary means to
each other to create conditions for self expression and balanced growth so that
every citizen becomes responsible and re- 569 sponsive for successful working
of democracy.
14.Illiot
Dodds in his "Liberty and Welfare", 1957 Ed. at p.
17 stated that "welfare is actually a form of liberty in as much as it
liberates men from social conditions which narrow their choices and brighten their
self development. Article 46 of the Constitution mandates the State "to
promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social injustice and all forms of
exploitation." Dr. B.R. Ambedkar, while winding up the debates on the
Draft Constitution, stated on the floor of the Constituent Assembly that the
real reason and Justification for inclusion of the Directive Principles in the
Constitution is that the party in power disregard of its political ideolo- gies,
will not sway away by its ideological influence but "should have due
regard to the ideal of economic democracy which is the foundation and the aspiration
of the Constitution." "Whoever may capture the governmental power
will not be free to do what he likes to do in the exercise of the power. He
cannot ignore them. He may not have to answer for the breach in a court of law,
but he will certainly have to answer for them before the electorate when the
next election comes." Dr. Ambedkar further stated that:
"We
must make our political democracy a social democracy as well. Political
democracy,, cannot last unless there lies at the base of it social democracy.
What does social democracy mean? It means a way of life which recognises
liberty, equality and fraternity as the principles of life. These principles of
liberty, equality and fraternity are not to be treated as separate items in a
trinity. They form a union of trinity in the sense that to divorce one from the
other is to defeat the very purpose of democracy........... In politics we will
be recognising the principles of one man one vote and one vote one value.
In our
social and economic life, we shall, by reason of our social and economic
structure, continue to deny the principle of one vote one value......... If we
continue to deny it for long, we will do so only by putting our political
democracy in peril. We must remove this contradiction at the earliest possible
moment or else those who suffer from inequality will blow up the structure of
political democracy which this Assembly has so laboriously built up".
15.
Article 21 of the Constitution assures right to life.
To
make right to life meaningful and effective, this Court put up expensive
interpretation and brought within its ambit right to education, health, speedy
trial, equal wages for equal work as fundamental rights. Articles 14, 15 and 16
prohibit discrimination and accord equality. The Preamble of the Constitution
as a socialist republic visualises to remove economic inequalities and to
provide facilities and opportunities for decent standard of living and to
protect the economic interest of the weaker segments of the society, in
particular, Scheduled Castes i. e. Dalits and the Schedules 'Tribes i.e. Tribes
and to protect them from "all forms of exploiations". Many a day have
come and gone after January
26, 1950 but no leaf
is turned in their lives of the poor and the gap between the rich and the poor
is gradually widening on the brink of being unbridgeable.
16.
Robert L. Simon in his 'Troubled Waters : Global Justice and Ocean Re- 570
sources' (1984) has stated that "in a world of vastly unequal
opportunities, where some are born into relative affluence and others into a
subsistence economy or worse, to view... resources as the libertarian does as
the exclusive property of those who exploit them or otherwise legitimately
acquire them perpetuates or extends the initial inequalities." At page 198,
he mentions that the right to life to illustrate is of a positive right. He
states that "right to life is considered as a positive right if it
requires not only that we refrain from killing the rights barely but also that
we provide him with basic necessities where he is unable to do so himself'.
Dias, in his Jurisprudence, 5th Ed. at p.85 has stated that "Democracy is
workable as long as there is a substantial area of shared values and
aspirations among the people and where they have the maturity to rise above
differences." 17.Providing adequate means of livelihood for all the
citizens and distribution of the material resources of the community for common
welfare, enable the poor, the Dalits and tribes, to fulfill the basic needs to
bring about a fundamental change in the structure of the Indian society which
was divided by erecting impregnable walls of separation between the people on
grounds of cast, sub-caste, creed, religion, race, language and sex. Equality
of op- portunity and status thereby would become the bed-rocks for social
integration. Economic empowerment thereby is the foundation to make equality of
status, dignity of person and equal opportunity a truism. The core of the
commitment of the Constitution to the social revolution through rule of law
lies in effectuation of the fundamental rights and directive principles as
supplementary and complimentary to each other. The Preamble, fundamental rights
and directive principles - the trinity arc the conscience of the Constitu- tion.
Political democracy has to be stable. Socio-economic democracy must take strong
roots and should become a way of life. The State, therefore, is enjoined to
provide adequate means of livelihood to the poor, weaker sections of the
society the Dalits and tribes and to distribute material resources of the
community to them for common welfare etc.
18.
Dr. Justice Gajendra Gadkar, the former Chief Justice of this Court in his The
Constitution of India, its philosophy and postulates' stated at p. 18 of 1969 Edn.
that "the ultimate object of Directive Principles is to liberate the
Indian masses in a positive sense to free them from the passivity endangered by
centuries of coercion, by society and by nature and by ignorance and from the
abject conditions that had prevented them from fulfilling their best
selves". Therefore, civil, political, social, economic and cultural rights
are necessary to the individual to protect and preserve human dignity, social
and economic rights are sine quo non concomitant to assimilate the poor, the depressed
and deprived i.e. the Dalits and Tribes in the national main stream for
ultimate equitable society and democratic way of life to create unity,
fraternity among people in an integrated Bharat.
19.
Lest Fundamental Rights in Chapter III would remain teasing illusions to the
poor, disadvantaged and deprived sections of the society, the disadvantaged
cannot effectively exercise their fundamental rights. Society, therefore, must
help them to enjoy freedom accorded in Chapter III of on Fundamental Rights.
571
20.
Justice K.K. Mathew, a former Judge of this Court, in his 'Democracy, Equality
and Freedom' has stated at p.37 that "Property is a legal institution the
essence of which is the creation and protection of certain private rights in
wealth of any kind. The institution performs many different functions. One of
these functions is to draw a circle around the activities of each private
individual or Organisation. Within that circle, the owner has a greater degree
of freedom than without." At page 38, the learned Judge stated that
"In a society with a mixed economy, who can be sure that freedom in
relation to property might not be regarded as an aspect of individual freedom?
People without property have a tendency to become slaves. They become the property
of others as they have no property themselves. They will come to say :
"make us slaves, but feed us". Liberty, independence, selfrespect, have their roots in property. To denigrate
the institution of property is to shut one's eyes to the stark reality evidenced
by the innate instinct and the steady object of pursuit of the vast majority of
people. Protection of property interest may quite fairly be deemed in
appropriate circumstances an aspect of freedom." At page 39, he further
stated that "There is no surer way to give men the courage to be free than
to insure them a competence upon which they can rely.
This
is why the Constitution-makers wanted that the own- ership of the material
resources of the community should be so distributed as to subserve the common
good. People be- come a society based upon relationship and status." At
page 56, he stated that "the economic rights provide man with freedom from
fear and freedom from want, and that they are as important if not more, in the
scale of values,"
21.
Professor Hocking has judiciously put : "To contemporary consciousness it
has become an axiom that there can be no freedom without provision; for a large
part of mankind the main task of freedom is at the economic level. But it
remains true that provision, work and leisure are not enough the most abundant
provision is not human freedom unless a man remains the unhampered director of
his powers of thought and action." Agricultural land is the foundation for
sense of security and freedom from want and fear. Assured pos- session is a
lasting root for prosperity, dignity of person and means for pursuit of
excellence. Justice is an attribute of human conduct and rule of law is
indispensable foundation to establish socio-economic justice. Doctrine of
political economy must include an interpretation of the public good which is
based on justice that would guide the people when questions of economic and
social policy are under consideration.
22.
Rawls in his "Theory of Justice" at p.259stated that :
"From
the beginning I have stressed that justice as fairness applies to the basic
structure of society. It is a conception for ranking social forms viewed as
closed systems.
Some
decision concerning these background arrangements is fundamental and cannot be
avoided. In fact, the cumulative effect of social and economic legislation is
to specify the basic structure. Moreover, the social system shapes the wants
and aspirations that its citizens come to have. It determines in part the sort
of persons they want to be as well as the sort of persons they arc. Thus an
economic system is not only an institutional device for satisfying existing
wants mid needs but a way of creating and fashioning wants in the future. How
men work 572 together now to satisfy their present desires affects the desires
they will have later on, the kind of persons they will be. These matters arc,
of course, perfectly obvious and have always been recognised. They were
stressed by economists as different as Marshall and Marx. Since economic
arrangements have these effects, and indeed must do so, the choice of these
institutions involves some view of human good and of the design of institution
to realize it. This choice must, therefore, be made on moral and political as
well as on economic grounds."
23. In
Devati Balasubrahmanyam v. District Collector, Nellore, 1986 (2) ALT 1, the
Andhra Pradesh High Court considering the question whether constitutionality of
the Government Order allotting 20% of the fair price shops in a District to the
Dalits and tribes, violates Articles 14 and 19(1)(g) of the Constitution, held
that equality of opportunity is not simply a legal equality, its existence
depends not merely on the absence of possibilities but on the presence of
abilities. Those who have been disadvantaged by the existing social conditions,
should be given more benefits by altering the ways of distribution.
The
distributive justice accomplishes the proportional equality. The proportional
rewards to the groups of the people would enable the groups of people to level
up their income and economic status in proportion to their membership in the
country's population. Economic empowerment to the Dalits and tribes is one of
the principles of economic Justice envisaged under Article 46 of the
Constitution.
Equality
of opportunity by providing 20% reservation in the distribution of the fair
price shops in the district to the Dalits and tribes, was held to be valid and
does not violate Articles 14 and 19 of the Constitution.
24.Economic
empowerment to the poor, Dalits and Tribes, is an integral constitutional
scheme of socio-economic de- mocracy and a way of life of political democracy.
Economic empowerment is, therefore, a basic human right and a fun- damental
right as part of right to live, equality and of status and dignity to the poor,
weaker sections, Dalits and Tribes. The State has evolved, by its legislative
and executive action, the policy to allot lands to the Dalits and tribes and
other weaker sections for their economic em- powerment. The government evolved
two pronged economic policies to render economic justice to the poor. The
Planning Commission evolved policies like DRDL for economic empowerment of the
weaker sections of the society; the Dalits and tribes in particular. There
should be short term policy for immediate sustenance and long term policy for
stable and permanent economic empowerment. All the State governments also
evolved assignment of its lands or the lands acquired under the ceiling laws to
them. Appropriate legislative enactments are brought on statute books to
prevent alienation of the assigned lands or the property had under the planned
schemes, and imposed prohibition there- under of alienation, declaring any
conveyance in contravention thereof as void or illegal and inoperative not to
bind the State or the assignee. In case the assignee was disqualified or not
available, on resumption of such land, the authorities arc enjoined to resume
the property and as- sign to heir or other eligible among the Dalits and tribes
or weaker sections in terms of the policy. The prohibition is to effectuate the
constitutional policy of economic empowerment under Articles 14, 2 1, 38, 39
and 46 read with the Preamble of the Constitution. Even in respect of pri- 573 vate
sales of the lands belonging to tribes, statutes prohibit alienation without
prior sanction of the competent authority.
25. It
is seen that prior permission for alienation of the land was a condition
precedent. Before permission is given, the competent authority is enjoined, by
operation of Article 46 of the Constitution, to enquire whether such alienation
is void under law or violates provisions of the Constitution and whether
permission could be legitimately given. In that behalf, the competent authority
is enjoined to look to the nature of the property, subject-matter of the
proposed conveyance and pre-existing rights flowing thereunder and whether such
alienations or encumbrances violate provisions of the Constitution or the law.
If the answer is in the positive, then without any further enquiry the
permission straightaway would be rejected. Even in case the permission is
granted, it would be decided on the anvil of the relevant provisions of the
Constitution and the law. In this case, the authorities, though had not
adverted to the aspect of the matter, broadly refused permission on the ground
that the assigned land cannot be permitted to be sold or converted to
non-agricultural use. The action refusing permission, therefore, is in
consonance with the Constitu- tional scheme in Part IV of the Directive
Principles. The agreement is, therefore, void under s.23 of the Contract Act as
opposed to public policy vide judgment in DTC v. DTC Mazdoor Congress, 1990 (suppl.)
1 SCR, 192, by one of us Ramaswamy, J. with whom Sawant and Ray, JJ. agreed by
separate but concurring judgment and the permission was rightly refused to be
given for alienation. The possession is unlawful. Section 53-A of Transfer of
Property Act is not attracted. The appellant's possession continues to be
unlawful and he is not entitled to any improvement made on the lands. The
Collector is directed to resume the lands immediately and assign the same to
the legal representatives of first respondent, if found eligible or to any
other eligible tribal.
26.
Accordingly, the appeal is dismissed but in the circumstances without costs.
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