RAMCHARAN Vs. STATE OF M P

JUDGEMENT

(1.) LAND Revenue Code, 1959 (M.P.) - - Ss. 234 to 237 - M.P. Rules for Diversion of Unoccupied Land into Agricultural Land, 1999 -R. 1 - conversion of charnoi land reserved u/s 237(3) - though Collector is empowered, opinion of gram sabha or one -fourth of adult residents of village is required - conversion of land without following provisions of S. 234 are contrary to provisions of the Code. In these writ petitions, petitioners are challenging the action of the State Government by allotment of pasture, grass -bir, Fodder Reserve land popularly known as "Gochar" or "Charnoi" land reserved under section 237 of M.P. Land Revenue Code, 1959, to the landless persons of Scheduled Castes and Scheduled Tribes. Prayer has been made for quashment of circular containing executive instructions dated 2.3.2002. [Para 1 Circular (R -6) was issued on 2.3.2002 emphasising that for reducing "Charnoi", it is not necessary to obtain resolution of "Gram Sabha" [Para 31 Moot question for consideration is whether executive instructions are contrary to provisions of Code in the matter of conversion of land under sections 234 to 237 of the Code. [Para 33 Held: In the instant cases, though sub -section (3) of section 237 has been amended, requirement of Gram Sabha of passing the resolution has not been taken away from section 234 of the Code. Now the fact remains that as per section 234, it is necessary to have opinion of "Gram Sabha" or "one -fourth i.e. 25% of adult residents" of the village. ... "Nistar Patrak" once prepared can be amended by Collector after enquiry by the SDO as provided under section 234(3) of the Code which requires application to be moved by "Gram Sabha" or "25% of adult residents" of village. The Collector comes into picture for sanctioning the diversion and in doing so he has undoubtedly to consider the impact of change sought to be brought about. A combined reading of sections 234 and 237 would show that it is not left to the Collector to effect the change of classification suo motu or on application of a private person. But the application has to be moved in accordance with section 234(3). [Para 34 Under sub -section (2) of section 237, sanctioning power of the Collector is confined to the purposes mentioned in sub -section 1). ... Thus, Collector has now, been empowered to divert such 'unoccupied land' which is set apart for the purposes mentioned in clause (b) of sub -section 1) of section 237 into Abadi or for agricultural purposes. Initially the requirement was on the basis of resolution by the "Gram Sabha" to this effect. Minimum was fixed in 1998 as 5%, it has now been reduced to 2% by amendment as per Act 23 of 2000 by the Legislature. However, the fact remains that section 234 has not been amended and the Division Bench of this Court in Amar Singh v. Raghuveer Singh [1980 RN 6] in para 9 above quoted, has held that procedure of section 234 has to be followed before affecting any change by the Collector which requires application to be moved by "Gram Sabha" or in its absence "25% of adult residents of village". [Para 35 As per rule 1, it is necessary that "Gram Panchayat" has to submit an application alongwith a copy of resolution duly passed by the Gram Sabha for diversion to agriculture purpose.. The circulars dated 19.9.2000 and R -1 to R -6 have overlooked it. Without application of Gram Sabha or 25% of adult residents of the village as per section 234 of the Code, it was not open to direct the Collectors to convert the land without application by Gram Sabha and Gram Panchayat as has been directed in circulars. Such requirement remains as per rule 1 read with section 234(3) which has not been amended, which is required to be followed. 1980 RN 6 relied on. [Para 47

(2.) LAND Revenue Code, 1959 (M.P.) - Si. 234 to 237 - Revenue Book Circulars - circular of State Government reducing area of charnoi from 5% to 2% maximum - overlooks requirement of such land. Next question for consideration is about the nature of circulars and whether it was open to the State Government to issue the circular (R -6) dated 2.3.2002 and other circulars (R -1 to R -5). It has issued instructions to "reduce" area of "Charnoi" invariably from 5% to 2% ' 'maximum''. [Para 36 Held : In my opinion, the executive instructions directing the reduction to 2% and to allot 3% land to the persons of SC/ST, after removal of the encroachment, ignore and overlook the requirement of such land and, further, an endeavour to remove the encroachment is required for keeping the land reserved for pasture, grass -bir, fodder reserve purpose. 1983 JLJ 690(SC), 1996 JLJ 406 (SC), AIR 1999 SC 2468 and AIR 1991 SC 1902 followed. 1984 RN 356 relied on. [Para 41 A bare reading of the circulars leaves no room for doubt that the State has left no discretion with the Collectors to retain more land than 2% minimum which is protected under sub -section (3) of section 237 of the Code. The import of words 2% minimum has been misused and misappreciated, it has been wrongly made "maximum". [Para 45

(3.) SCC 467, AIR 1987 SC 1109 and AIR 1967 SC 661 followed. AIR 1990 Kar. 2 relied on. [Paras 40 and 58 12. Statute - - prescribing mode of doing a particular thing - that thing is to be done in that mode only or not at all. AIR 1954 SC 322 followed. [Para 47 13. Interpretation of Statutes - - intention of Legislature is to be gathered from the words used in the enactment - Preamble does not come into picture when words are clear. AIR 1990 SC 1747, AIR 1997 SC 1165, AIR 1998 SC 74 and AIR 1961 SC 954 followed. [Para 63 14) Interpretation of Statutes - - Preamble - cannot be used to eliminate or make redundant the operative provision of statute. AIR 1965 SC 1296 and AIR 1997 SC 1571 followed. [Para 63 15) Constitution of India - Art. 226 - - power of interference in matter of policy - - provisions of law made nugatory by executive circulars - Court will set it right. AIR 1985 SC 389, AIR 1996 SC 2151, 1990) 1 SCC 520, 1985) 3 SCC 545, 1995) 6 SCC 309, 1995) 2 SCC 549, 1997) 1 SCC 151 and AIR 1987 SC 990 discussed and distinguished. [Paras 65 to 72 ORDER 1. In these writ petitions, petitioners are challenging the action of the State Government by allotment of pasture, grass -bir, Fodder Reserve land popularly known as "Gochar'' or "Charnoi'' land reserved under section 237 of M.P. Land Revenue Code, 1959, to the landless persons of Scheduled Castes and Scheduled Tribes. Prayer has been made for quashment of circular containing executive instructions dated 2.3.2002. (P -10=R -6 in W.P. No. 3009/2002). 2. Petitioners submit that they are poor persons and living below the poverty line. They are cultivating certain "Gochar" lands. Petitioners have filed Khasras and other papers to show their possession. Some of the petitioners submit that their application for allotment of land is pending. No efforts can be made legally without deciding their application to allot the lands to the persons of SC and ST. The petitioners submit that politically influenced persons are taking undue advantage of the circulars issued by the State Government. If at all Government is going to allot the "Charnoi" land, it should be allotted to them as they have made it cultivable by their own efforts and "Charnoi" land cannot be allotted to SC/ST persons. Government cannot allot the land reserved for "Charnoi". Petitioners seek quashment of executive instructions contained in circular (P -10). 3. In W.P. No. 2819/2002, petitioner is claiming the allotment of "Charnoi" land as per provisions of "Madhya Pradesh Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhumiswami Adhikaron Ka Pradan Kiya Jana Adhiniyam, 1984'' (hereinafter referred to as Adhiniyam). Petitioners claim to be in possession and submits that once the land is taken out of "Charnoi", that be allotted to them as they are landless persons under the Adhiniyam of 1984. In W.P. No. 3689/2002, relief has been claimed against the respondents not to dispossess them from the "Charnoi" land in order to allot it to others. It is also the submission of the petitioners that the land cannot be allotted only to the SC/ST persons. It should be allotted to them as they are also poor. Action of the State Government in directing the allotment only to the SC/ST persons is illegal, contrary to law and violative of Article 14 and 15 of the Constitution of India. Monopoly cannot be created in favour of SC and ST persons. It is also the submission raised that land in question cannot be treated to be an "unoccupied land" and only an "unoccupied land" can be distributed. Since the petitioners are in possession of the land, it has to be treated as occupied land. Petitioners further submit that they are also landless persons and their case cannot be treated differently in the matter of allotment of the land. Land cannot be taken away from one landless person and allotted to other such person. They are earning their livelihood and if possession is taken, they will be made to starve and rendered without any source of livelihood. 4. It is also the case set up that land in question is "Gochar" land and even the SC/ST cannot be allotted the said land. Petitioners are of downtrodden class and they have the preferential right in case the allotment is made. In W.P. No. 3102/2002, relief has been claimed restraining the respondents from declaring the land fit for cultivation and from allotting any portion of the land to any persons of the village or anywhere else. Under section 237 of M.P. Land Revenue Code, 'Nistar Patrak' is prepared for each place wherein grazing catties lands are available besides for other purpose. Petitioners have grown certain trees on the land. "Gochar" land cannot be distributed as Kabil Kasht. No allotment can be made to any person. Retention of "Charnoi" upto 2% maximum is against the provisions of the Adhiniyam of 1984 and the Code. Under Section 239 of the Code, the petitioners are entitled for the use of fruits of trees. In W.P. No. 3101/2002 reduction of area of pasture, grass bir, fodder reserve to maximum retention of area upto 2% as per executive instructions has been questioned being contrary to the provisions of the Code. No proclamation for conversion of such lands has been issued. Gram Panchayat has not been heard. In W.P. No. 2579/2002 relief has been claimed not to allot the