Vishwanath Mahto & Ors. v. The State Of Bihar & Ors.

S.N Jha, J.:— Whether a Government estate can be reserved for members of the Scheduled Castes/Scheduled Tribes communities to the exclusion of the rest of the population, including other socially backward classes, is the significant question which arises for decision in this case.

2. There are 36 petitioners in this writ petition. They are landless and except petitioner no. 35 Suran Singh, they all belong to ‘Other Backward Class’ category. They are aggrieved by the decision of the State Government to reserve the lands lying on the flanks of Sone Canal, called ‘Chat lands’ in the local parlance, for members of the Scheduled Castes (SC) and Scheduled Tribes (ST). The decision has been communicated by the Commissioner & Secretary, Water Resources Department of the State Government under his D.O letter No. 1255 dated 22.4.93 Copy of the said letter has been marked Annexure-7 to the writ petition. Annexures-9, 10 and 11 are the consequential actions taken by the local authorities directing Sub-Divisional Officer, Naubatpur to prepare list of chat lands with non-SC/ST persons, list of such lands shown as “vacant lands” and the notices informing the petitioners about cancellation of the settlement. The Sone Canal was constructed several decades ago. The land on either side of the canal was left vacant so that the earth could be dug to reinforce and strengthen the embankment and also to serve as road/pathway. These lands also obviously belong to the Government. The authorities started settling such lands called ‘chat’ land with suitable persons as per the guidelines then in force. Revised guidelines were issued by the Chief Engineer, Irrigation Department (now known as Water Resources Deptt.) under his letter no. 16825 dated 6.12.71, copy of the said letter has been marked Annexture-4 to the writ petition. It provided for settlement by a Committee at the sub-divisional level. The canal falling within a particular sub-division (or the department) was to be treated as one independent unit. Settlement was to be for agricultural purposes for a period of nine months from 25th June of the year to 25th March of the following year, and in the matter of settlement (i) landless harizans (ii) retired military personnel (iii) landless labourers were to be given preference. The guidelines also provided that the land will ordinarily be settled with the previous settlee provided it has not been declared to be “vacant land” under Clause (3)(Cha). Any person aggrieved by the decision of the Executive Engineer could appeal to the Superintending Engineer.

3. According to the petitioners, ‘chat’ lands started being settled as per the abovesaid guidelines and they were also given land in settlement accordingly. On 2.4.93, however, came the impugned communication conveying the Government decision to settle ‘chat’ lands with the members of the Scheduled Castes and Scheduled Tribes alone in future. In the light of that communication even such lands which were settled with the petitioners (and others) from year to year were declared as vacant land and included in the list for being settled with the members of the Scheduled Caste and Scheduled Tribes. The petitioners have come to this Court for quashing the aforesaid decision of the State Government and the consequential action taken by the local authorities.

4. Mr. Rai Shivaji Nath, learned counsel for the petitioners contended that the impugned decision of the State Government amounts to 100% reservation of the ‘chat’ lands in favour of the members of the Scheduled Castes and Scheduled Tribes which is not permissible. He placed reliance on M.R Balaji v. State of Mysore (AIR 1963 SC 649), Indra Sawhney v. Union of India (1992 Supp (3) SCC 217 : AIR 1993 SC 477), Abdul Latiff v. State of Bihar (AIR 1964 Patna 393) and Janardan Paswan v. State of Bihar, (1987 PLJR 875). He submitted that the classification between the SC/ST communities and the rest has no reasonable nexus with the object sought to be achieved. He pointed out that earlier emphasis was on making settlement with landless persons being the weaker section of the society. Now by virtue of the revised guidelines, any member of Scheduled Castes/Scheduled Tribes is eligible for settlement whether he is landless or not. Mr. Shivaji Nath submitted that in terms of the provision of the circular dated 6.12.71, the petitioners had a right for renewal unless the land was declared ‘vacant land’ in accordance with the circular. Inasmuch as the petitioners had not committed any default or violated the terms and conditions of the settlement, neither the lands could be treated as ‘vacant’ land nor the petitioners could be denied renewal.

5. Mr. Ganga Prasad Rai, learned Addl. Advocate General II submitted that the circular dated 6.12.71 provided for settlement for a period of nine months only expiring on 25th March, of the year. Thereafter, the settlees had no right. He pointed out that use of the word “ordinarily” in clause 3(Ka) of the letter dated 6.2.71 in the matter of settlement of the land with the settlee of the previous year indicates that the settlees had no vested right to claim renewal or fresh settlement as a matter of right. After 25th March of the year the land in question, therefore, could be treated as vacant land, fit for settlement with others. On the larger question as to whether the ‘chat’ lands could be reserved for members of Scheduled Castes and Scheduled Tribes alone, Mr. Rai referred to the latter part of the letter dated 22.4.93 and submitted that non-SC/ST persons have not been excluded altogether. Where SC/ST persons are not available or in special circumstances, ‘chat’ lands can be settled with other persons as well. On the point of power of the Government to make reservation for members of Scheduled Caste and Scheduled Tribes, he placed reliance on S.P Mittal v. Union of India ((1983) 1 SCC 51 : AIR 1983 SC 1), In re the Special Courts Bill, 1978 ((1979) 1 SCC 380 : AIR 1979 SC 478), Pathumma v. State of Kerala ((1978) 2 SCC 1 : AIR 1978 SC 771) and V.V Giri v. D.S Dora (AIR 1959 SC 1318).

6. I am inclined to accept the contention of Mr. Ganga Prasad Rai that the petitioners cannot claim any vested right for taking settlement of chat lands from year to year. It is true that in terms of letter dated 6.12.71, if a settlee has not committed any default or violated the terms and conditions of the settlement under Clause (3)(Kha), ordinarily, the land in question could be settled with him again in the next year. However, this does not mean that he has acquired any vested right. According to me, this makes him eligible for settlement in the following year. But it does not mean that the land must necessarily be settled with him. Right to consideration is one thing, right to settlement is another. While the existing settlee has a right to consideration, he cannot claim any vested right to settlement also. This, however, is not the end of the matter.

7. The more important aspect of the case is that by virtue of the impugned decision of the State Government the petitioners and others who are not members of the Scheduled Castes and Scheduled Tribe have been rendered ineligible for consideration itself. From plain reading of the impugned letter dated 22.4.93 it is apparent that all ‘chat’ lands have been reserved for persons of Scheduled Castes and Scheduled Tribe. It is only when they are not available (which must be a rare situation) and in exceptional cases (an expression too vague and having portents of arbitrariness to be accepted), that a non-Scheduled Caste/Scheduled Tribe person can be considered. While it is open to the State by virtue of the provisions of Article 15(4) of the Constitution to make special provisions for the advancement of socially and educationally backward class of citizens, besides members of the Scheduled Castes and Scheduled Tribes, whether all ‘chat’ lands can be reserved for the members of the Scheduled Caste and Scheduled Tribe alone?

8. M.R Balaji v. State of Mysore (supra) was a case of reservation of seats in educational institutions. The Government of Mysore had reserved 68% of the seats in technical institutions for Backward Classes, Scheduled Castes and Scheduled Tribes. The Supreme Court stated that Article 15(4) of the Constitution had to be read as a proviso and exception to Article 15(1) and not as an independent clause. It held that special provisions contemplated by Article 15(4) must be within reasonable limits. The interest of the weaker section of the society which are a first charge on the State and the Centre are to be adjusted with the interest of the community as a whole. If under the guise of making special provision the State reserves practically all the seats available in the college that would amount to subverting the objects of Article 15(4). In these premises the Supreme Court struck down the impugned order of the Government.

9. Abdul Latiff v. State of Bihar (supra) was a case giving preference to the members of the Scheduled Castes and Scheduled Tribes in the matter of settlement of excise shops. The relevant clause of the Government order provided that when there are several candidates for an excise shop, out of whom one is Scheduled Caste or Scheduled Tribe candidate and otherwise suitable, the shop should be settled straightway with such Scheduled Caste or Scheduled Tribe candidate. This Court quashed the Government order as being violative of the guarantee under Article 15(1) of the Constitution.

10. Janardan Paswan v. State of Bihar (supra) was a case of reservation in the office of Mukhia of Gram Panchayat. A Full Bench of this Court held that the impugned provision not only amounted to 100% reservation but also total exclusion of a vast majority of the citizens. Such a provision would be violative of Article 14 of the Constitution and cannot be saved under Article 15(4), assuming that the same is applicable. This Court observed, it is settled law that barring exceptions reservation even under Article 15(4) has to be reasonable and normally is not to exceed 50%. In any case, in exceptional and peculiar circumstances it may extend a little beyond that, but there is no manner of doubt that in the eye of law, even under the cloak of Article 15(4), a 100% reservation is not countenanced and is violative of the fundamental right of equality under Article 14.

11. Indra Sawhney v. Union of India (supra) was a case of reservation of post in services. Considering the scope of Article 16(4) of the Constitution, which contains similar provision empowering the State to make provisions for reservation in appointment or posts in favour of any backward class of citizens not adequately represented in the service under the State, the Supreme Court laid down that the reservation contemplated under Article 16(4) should not exceed 50%. It may be stated that the decision in the above-said case was rendered by a nine Judge Bench and although there was difference of opinion inter se on different points, the Majority holding that the Government under reserving 27% posts for Other Backward Classes was constitutional and valid, on the point of extent of reservation, with the solitary exception of S. Ratnavael Pandian, J. Other Judges agreed that reservation should not exceed 50%.

12. The point urged on behalf of the petitioners thus finds adequate support from the aforesaid decision. The submission of Mr. Ganga Prasad Rai on behalf of the State that the impugned decision as communicated by Annexure-7 does not totally exclude the non-Scheduled Caste/Scheduled Tribe persons and, therefore, there is no. 100% reservation for the members of Scheduled Castes and Tribes cannot be accepted. In Adbul Latiff v. State of Bihar (supra) the Government order did not exclude other candidates but merely gave preference to the candidates of the Scheduled Caste and Scheduled Tribe providing that when there are several candidates out of whom one is Scheduled Caste or Scheduled Tribed candidate, the shop is to be settled with him straightway. Even that kind of provision was held to be ultra vires Article 15(1) of the Constitution. The present case stands on much better footing from the petitioners' point of view. The impugned Government decision lays down in no uncertain terms that in future the ‘chat’ lands are to be settled with members of the Scheduled Castes and Scheduled Tribe and that such chat lands which have been settled with non-Scheduled Caste/Scheduled Tribe are to be treated as ‘vacant land’ and thereafter settled with members of the Scheduled Castes and Scheduled Tribes. The clause that such settlement can be made with others provided members of Scheduled Castes/Scheduled Tribe are not available is, if I may say so, an eye-wash. In rural areas there would be hardly a sub-division (which is to be treated as Unit for purpose of settlement of ‘chat’ land) in which a Scheduled Castes/Scheduled Tribes candidate is not available. No special case for reservation of all ‘chat’ lands for the members of Scheduled Castes/Scheduled Tribes has been made out. If the object was to give more opportunities for better livelihood, the bonafide of which cannot be doubted, lands could be earmarked for them, but to exclude the entire population, some of which may be equally deserving, cannot be said to be proper. It is not the case of the respondents that lands have been reserved as SC/ST communities are not properly represented in the settlement of chat lands because, in any case, such settlement is an yearly affair.

13. The decisions cited by Mr. Rai were rendered in entirely different context and are of no assistance to him. In S.P Mittal v. Union of India (supra) the point for consideration was the validity of Auroville (Emergency Provisions) Act, 1980 which provided for taking over the management and control of Sri Aurobindo Society hitherto managed by a Governing Body/Board of Trustees of the Society under the West Bengal Societies Registration Act and Memorandum, Rules and Regulations of the Society. In re Special Courts Bill, 1978 (supra) the point for consideration, upon reference by the President of India, was the validity of certain provisions of Special Courts Bill, 1978. In Pathumma v. State of Kerala (supra) the point for consideration was the validity of certain provision of Kerala Agriculturists Debt Relief Act, 1970 which provided for recovery of properties by the agriculturist debtors sold in execution of decree passed in liquidation of debts owned by them. In V.V Giri v. D.S Dora (supra) the point for consideration was the scope of the provisions relating to double-member constituency. I fail to understand how the aforesaid decisions can be of any assistance to the respondents even remotely. The decisions were rendered in entirely different contexts and background and the question as to whether there could be 100% reservation or not, was not in issue at all. In any view, nothing contained in the said judgments, in particular, was referred to by the counsel except making general reference to them in course of hearing. The point at issue rather finds full support from the decisions relied upon by the counsel for the petitioners.

14. In the premises mentioned above, the impugned decision of the State Government as communicated by Annexure-7 must be held to be unconstitutional, ultra vires Articles 14 and 15(1) of the Constitution. The consequential action contained in Annexures: 9, 10 and 11 also most accordingly a priori be struck down. In the result, the decision, orders and notices as contained in Annexures: 7, 9, 10 and 11 are quashed. The respondent-authorities are directed to consider the cases of the petitioners afresh in accordance with law. The writ petition thus stands allowed. There shall be no order as to cost.

15. Before I part, I must observe that this judgment will not stand in the way of the respondents in re-formulating their policy of settlement of ‘chat’ lands in accordance with law.