Khatri Ram Vs State of HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No.1077 of 2006 Reserved on: 8 .11.2007 Date of deci­sion 22.11.2007

Kha­tri Ram and another. Peti­tion­ers Vs.  State of H.P. and oth­ers Respondents

Coram:

The Hon’ble Mr. Jus­tice V.K.Gupta, Chief Justice.

The Hon’ble Mr. Jus­tice Rajiv Sharma, Judge.

 

Whether approved for reporting?1 Yes.

For the Peti­tion­ers: Ms.Jyotsna Rewal Dua, Advocate.

For the respon­dents: Mr.M.S.Chandel, Advo­cate Gen­eral, with Mr.J.K.Verma, Deputy Advo­cate Gen­eral, for respon­dents No.1 and 2.

Mr.Bhupender Gupta, Senior Advo­cate, with Ms.Charu Gupta, Advo­cate, for respon­dent No.3.

Mr.Deepak Kaushal, advo­cate, for respon­dents No.4 to 329.

Per Rajiv Sharma, J.

The brief facts nec­es­sary for the adju­di­ca­tion of this peti­tion are that the peti­tion­ers along with other vil­lagers owned and pos­sessed 5679 bighas of vil­lage com­mon land i.e. Sham­lat Deh assessed to land rev­enue well within the ceil­ing as laid down in the Himachal Pradesh Ceil­ing in Land Hold­ings Act. The Himachal­PradeshVil­lage com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 received the assent of the Pres­i­dent of India on 9^th August, 1974 and it was 1 Whether reporters of local papers are allowed to see the judg­ment? 2 placed at Ser­ial No.139 of the 9^th Sched­ule, as per 40^th Amend­ment of the Con­sti­tu­tion. As per pro­vi­sion of the Act, 5614.04 bighas of vil­lage com­mon land owned by the peti­tion­ers with other co-owners assessed to land rev­enue got vested in the State of Himachal Pradesh. The entry to this effect was car­ried out in Muta­tion No.663 dated 9.9.1975.

An amend­ment was car­ried out in the Prin­ci­pal Act in the year 1981 vide Act No.18 of 1981, whereby Sec­tion 8-A was inserted in the Act. The amend­ment car­ried out by way of Act No.18 of 1981 did not receive the assent of the Pres­i­dent. The respon­dent No.3 was sanc­tioned min­ing lease on 20^th March, 2001 for a period of 30 years for a total area mea­sur­ing 39.5 bighas.

The amend­ment was car­ried out by way of Act No.20 of 2001 assented to by the Gov­er­nor of Himachal Pradesh on 27.9.2001, whereby sub clause (d) was added to sub sec­tion 2 of Sec­tion 3 ret­ro­spec­tively i.e. from the date of the Himachal Pradesh Vil­lage Com­mon Land vest­ing and Uti­liza­tion Act No.18 came into force on 29.8.1974. Con­se­quently the land vested in the State was required to be returned to the orig­i­nal own­ers. The State returned pro­pri­etary rights of the Vil­lage com­mon land mea­sur­ing 4276.01 bighas to the own­ers vide a Muta­tions No.1145 dated 21.5.2004 and 1157 dated 29.9.2004. A total land mea­sur­ing 1338.03 bighas inclu­sive of 39.5 bighas com­prised in Khasra Nos. 1926÷1886÷131÷1 and 148/1 over which min­ing lease was sanc­tioned in favour of respon­dent No.3 by the State Gov­ern­ment was not returned to the peti­tion­ers and co-villagers.

The peti­tion­ers have prayed for declar­ing Sec­tion 8-A intro­duced in Act No.18 of 1974 vide Act of 18 of 1981 uncon­sti­tu­tional with a fur­ther prayer that it should be struck down. They have also prayed that the pro­pri­etary rights of 1338.03 bighas of erst­while vil­lage Sham­lat land be returned to them and the min­ing lease granted in favour of respon­dent No.3 be cancelled.

The respon­dent No.1 has filed reply to the writ peti­tion. The reply of respon­dent No.1 is vague and the spe­cific aver­ments made in the writ peti­tion 3 have not been dealt with in the right per­spec­tive. The State ought to have filed a detailed reply in view of the fact that the vires of sec­tion 8-A have been chal­lenged by the peti­tion­ers. The main thrust of respon­dent No.1 is about the min­ing lease and other ancil­lary issues related to lease exe­cuted in favour of respon­dent No.3. The respon­dent No.2 has filed detailed reply to the writ peti­tion. The respon­dent No.2 in his reply has jus­ti­fied the inser­tion of Sec­tion 8-A in the Prin­ci­pal Act. The respon­dent No.2 has taken the stand that in view of the pro­vi­sions of Sec­tion 14 the amend­ment could be car­ried out in the Prin­ci­pal Act in the year 1981. It is fur­ther averred in the reply that inser­tion of Sec­tion 8-A vide Act No.18 of 1981 is in con­so­nance with the pro­vi­sions of the Prin­ci­pal Act and the min­ing lease has been exe­cuted in favour of respon­dent No.3 out of the allotable pool since the land clas­si­fied is “Gair Mumkin/Nakabil Cha­rand” in the rev­enue record which was not fit for allot­ment for agri­cul­ture and pur­poses sub­servient to agri­cul­ture by way of allot­ment to land­less and eli­gi­ble per­sons. It is fur­ther stated in the reply that the peti­tion­ers were not enti­tled to any com­pen­sa­tion and the State could uti­lize the land for the devel­op­ment pur­poses. The thrust in the reply is also on the pro­viso of sub clause (d) of sub-section 2 of sec­tion 3 on the basis of which it had been con­tended that the land which had already been used for devel­op­ment activ­i­ties could not revert back to the own­ers. It is fur­ther averred in the reply that the peti­tion­ers have no right to chal­lenge the con­sti­tu­tional valid­ity of the Prin­ci­pal Act which is pro­tected under the 9^th sched­ule of the Con­sti­tu­tion. There is no denial by respon­dents No.1 and 2 in the reply that sec­tion 8-A has not received the pres­i­den­tial assent.

The respon­dent No.3 has filed a sep­a­rate reply. The main points urged in the reply filed by respon­dent No.3 are that he had applied for the min­ing lease in the year 1982 and the same was granted to him on 1.3.2001 and the min­ing plan was approved on 9^th May, 2001. It is fur­ther con­tended in the reply filed by respon­dent No.3 that he was con­tribut­ing to the State exche­quer by pay­ing 4 roy­alty, taxes, fees and other charges. The bonafide of the peti­tion­ers have also been chal­lenged by respon­dent No.3 in his reply. It is fur­ther stated in the reply that the respon­dent was instru­men­tal in giv­ing employ­ment to 50 per­sons and had also con­tributed funds for the devel­op­ment of the area. An Aver­ment has been made in the reply to the effect that on 14.12.2006 a meet­ing of the right hold­ers of Banor Estate was held in which about 90% of the own­ers had passed a res­o­lu­tion to the effect that they do not object to the min­ing oper­a­tions car­ried out by respon­dent No.3.

Respon­dents No.4 to 329 have also filed a sep­a­rate reply, it has been pri­mar­ily con­tended by them that the min­ing activ­i­ties being car­ried out in the area have ben­e­fited them and they have no objec­tion to the grant of lease in favour of respon­dent No.3. They have also sup­ported the ver­sion of respon­dent No.3 that he had con­tributed con­sid­er­able funds for the devel­op­ment of the remote area. They have also jus­ti­fied the inser­tion of Sec­tion 8-A by the state.

Ms. Jyot­sna Rewal Dua, Advo­cate had strongly argued that sec­tion 8-A of the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is ultra vires the Con­sti­tu­tion and is liable to be struck down. She also con­tended that the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion and the min­ing lease granted in favour of respon­dent No.3 by the respon­dents No.1 and 2 is against the leg­isla­tive intent. She then con­tended that since the Act No.18 of 1981 has not received the Pres­i­den­tial assent the immu­nity granted to the Prin­ci­pal Act can­not be pre­sumed in favour of the amend­ment. Ms. Dua fur­ther sub­mit­ted that the peti­tion­ers have the nec­es­sary locus standi to file and main­tain the writ peti­tion on their behalf as well as on behalf of the other co-villagers for the enforce­ment of their con­sti­tu­tional and legal rights. She also con­tended that respon­dents No.4 to 329 nei­ther can waive nor barter away their fun­da­men­tal rights. Her con­tention with regard to delay and laches is that there can­not be any delay and laches for the enforce­ment of fun­da­men­tal rights and she fur­ther but­tressed her 5 sub­mis­sion by sub­mit­ting that ear­lier the chal­lenge to the vires of the Act placed in Schedule-IX in view of Waman Rao’s case was restricted but the scope of chal­lenge has now been enlarged exten­sively by the Hon’ble Supreme Court in 2007 (2) SCC 1. Enlarg­ing the scope of her sub­mis­sion based on 2007 (2) SCC 1, she con­tended that the vires of the act now can be chal­lenged if the same is against the basic struc­ture of the Con­sti­tu­tion as well as against the rights enshrined in Part-III of the Con­sti­tu­tion, which are treated as the basic struc­ture of the Constitution.

The learned Advo­cate Gen­eral sub­mit­ted that sec­tion 8-A has been added by invok­ing sec­tion 14 of the Prin­ci­pal Act to remove the dif­fi­cul­ties. His sec­ond con­tention is that min­ing activ­i­ties is to be treated as a step towards the devel­op­ment of the State as per sec­tion 8-A of the Act.

Mr. Bhu­pen­der Gupta, Sr. Advo­cate had stren­u­ously argued that the present peti­tion on behalf of the peti­tion­ers can­not be treated as pub­lic inter­est lit­i­ga­tion and the same has been filed with ulte­rior motive to set­tle the score with his client. His fur­ther con­tention is that his client had been granted min­ing lease in the year 2001 though he had sub­mit­ted appli­ca­tion in the year 1982. Mr.

Gupta also con­tended that his client is pay­ing roy­alty, taxes, fee etc. to the State Exche­quer and has also con­tributed funds for the devel­op­ment of the area and the respon­dents No.4 to 329 are not against the min­ing lease granted to his client.

Mr. Deepak Kaushal, Advo­cate appear­ing on behalf of respon­dents No.4 to 329 had adopted the argu­ments addressed by the learned Advo­cate Gen­eral and Mr. Bhu­pen­der Gupta, Sr. Advo­cate and had also taken addi­tional plea that Mines and Min­er­als (Devel­op­ment and Reg­u­la­tion) Act, 1957 has also been placed in Schedule-IX of the Con­sti­tu­tion of India and on that basis he had jus­ti­fied the grant of min­ing lease in favour of respon­dent No.3.

6 In view of the plead­ings of the par­ties as well as on the basis of their exten­sive argu­ments, the fol­low­ing ques­tions are for­mu­lated for con­sid­er­a­tion in seri­atim: 1) Whether the peti­tion­ers have the nec­es­sary locus standi to file and main­tain the writ peti­tion on their behalf and on behalf of co-villagers for return­ing their land on the basis of inser­tion of clause (d) in sub­sec­tion (2) of sec­tion (3) of the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974? 2) Whether the present writ peti­tion can be termed as pub­lic inter­est lit­i­ga­tion in view of the con­sti­tu­tional issues raised for pro­tect­ing the fun­da­men­tal rights of the peti­tion­ers as well as the rights of cov­il­lagers for the restora­tion of their land on the basis of amend­ment car­ried out in the year 2001, which ear­lier stood vested in the State in the year 1974? 3) Whether the present writ peti­tion suf­fers from the vice of delay and laches and neg­li­gence on the part of the peti­tion­ers? 4) Whether respon­dents No.4 to 329 could waive or barter away their fun­da­men­tal rights after pass­ing of the 2001 Act? 5) What is the effect of the amend­ment car­ried out by way of Act No. 18 of 1981 in the Prin­ci­pal Act by adding sec­tion 8-A? 6) Whether the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion and whether grant­ing lease for min­ing pur­poses falls out side the scope of agrar­ian reform and thus not enti­tled to the pro­tec­tion of Arti­cle 31-A of the Con­sti­tu­tion of India? 7) Whether the immu­nity enjoyed by the Prin­ci­pal Act being placed in Schedule-IX can be extended to sec­tion 8-A added in the year 1981? 8) Whether sec­tion 8-A could be inserted in the year 1981 in the Prin­ci­pal Act by invok­ing sec­tion 14 of the Act? 9) Whether the Court can read down sec­tion 8-A to avoid strik­ing it down, if it is found viola­tive of Arti­cles 14 and 19 of the Con­sti­tu­tion of India? Since the Court has to go into the entire gamut of the ques­tions raised and for­mu­lated by this Court, it will be more con­ge­nial at this stage to have a com­plete view of the leg­isla­tive his­tory of the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Acts and H.P.Village Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974.

7 The ori­gin of the con­cept of the vil­lage com­mon land and ear­lier Legislation.

 

The entire con­cept of vil­lage com­mon land has been explained in detail by Sir. W.H. Rat­ti­gan in Digest of Cus­tom­ary Law (15^th Edn.) 1989) as under: “The land is the true basis of unity in vil­lage group­ings, sup­ply­ing the ulti­mate real bond of union between the mem­bers who con­sti­tute the aggre­gate pro­pri­etary body gen­er­ally called the “vil­lage com­mu­nity”, is a fact which may be ver­i­fied by the most super­fi­cial observer of the orga­ni­za­tion which under­lines those com­mu­ni­ties in the Pun­jab. Thus, what­ever may be the type to which a par­tic­u­lar vil­lage may belong, and to what­ever extent indi­vid­u­al­is­tic notions of prop­erty may have super­seded the ear­lier ideas of joint­ness and com­mon hold­ings, there will be found still sur­viv­ing very dis­tinct evi­dence of the fact that in its ori­gin the vil­lage asso­ci­a­tion was bound together by the acqui­si­tion of a def­i­nite space of land, which, as Sir Henry Maine has so abun­dantly demon­strated, began at once to become the basis of its capac­ity instead of kin­ship, ever more and more vaguely con­ceived. This evi­dence is to be found in the reser­va­tion within the ter­ri­to­r­ial lim­its of every vil­lage of some por­tions of the uncul­ti­vated waste for pur­poses of com­mon pas­ture, for assem­blies of the peo­ple, for the teth­er­ing of the vil­lage cat­tle, and for the pos­si­ble exten­sion of the vil­lage dwellings. Lands so reserved are jeal­ously guarded as the com­mon prop­erty of the orig­i­nal body of set­tlers who founded the vil­lage or of their descen­dants, and occa­sion­ally also those who assisted the set­tlers in clear­ing the waste and brin­ing it under cul­ti­va­tion are rec­og­nized as hav­ing a share in these reserved plots. Even in vil­lage which have adopted sep­a­rate own­er­ship sep­a­rate own­er­ship as to the cul­ti­vated area, some such plots are usu­ally reserved as vil­lage com­mon, and in pat­ti­dari vil­lages (see para-137). It is not unusual to find cer­tain por­tions of the waste reserved for the com­mon use of the pro­pri­etors of each patti, and other por­tions for com­mon vil­lage pur­poses the for­mer is des­ig­nated shamilat-patti and the lat­ter shamilat-deh.

 

As a gen­eral rule, only pro­pri­etors of the vil­lage (malikan­deh) as dis­tin­guished from pro­pri­etors of their own hold­ings (malikan-makbuza khud) are enti­tled to share in the shamilat-deh.” 8 A Divi­sion Bench of the Lahore High Court has held in Malik Moham­mad Sher Khan and oth­ers Ver­sus Ghu­lam Moham­mad and oth­ers, 1932 Vol-XIII Indian Law Reports 92 that rules per­tain­ing to vil­lage com­mon land orig­i­nated and had been made applic­a­ble prin­ci­pally to those parts of the coun­try where agri­cul­ture was the pre­dom­i­nant fea­ture of vil­lage life and cul­ti­va­tion of land was the main source from which the inhab­i­tants draw their income and the State derives its rev­enue. Their Lord­ships have held as under: “It must, how­ever, be borne in mind that these rules orig­i­nated in, and have been made applic­a­ble prin­ci­pally to, those parts of the coun­try where agri­cul­ture is the pre­dom­i­nant fea­ture of vil­lage life and cul­ti­va­tion of land is the main source from which the inhab­i­tants draw their income and the State derives its rev­enue.” The Pun­jab Assem­bly has enacted the Act called “the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1953 to reg­u­late the rights in shamlat-deh and abadi-deh, the State­ment of Objects and Rea­sons for intro­duc­ing the Bill as pub­lished in the Pun­jab Gazette Extra­or­di­nary dated 6^th April, 1953 reads thus: “When the vil­lages were orig­i­nally founded it is believed that the sham­lat was really meant for the use of all the inhab­i­tants of the vil­lage. At present the posi­tion is that all the sham­lat is the prop­erty of the pro­pri­etary body of a vil­lage and the rights of non­pro­pri­etors are in the shape of grants for cer­tain pur­poses. Though the non-proprietary classes also pre­sum­ably set­tled in vil­lages with txhe founders thereof and have been ren­der­ing essen­tial ser­vices to the pro­pri­etary body in mat­ters relat­ing to farm oper­a­tions, they do not enjoy equal rights in the sham­lat lands and they are not the pro­pri­etors of the sites under their houses even in the abadis.

 

It seems that in the course of time con­di­tions to the deter­ment of Har­i­jans and other sim­i­lar non-proprietary classes have come into vogue. They feel their posi­tion inse­cure in so far as enjoy­ment of essen­tial rights in sites of their res­i­den­tial houses.

 

Dis­con­tent­ment over this mat­ter has been expressed by the mem­bers of these classes. Gov­ern­ment con­sider that these con­di­tions should no longer exist. It is with a view to giv­ing these 9 classes of res­i­dents in vil­lages an oppor­tu­nity to live with secu­rity and self respect that the pro­posed leg­is­la­tion is being under­taken.” Sec­tion 3 of the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1953 reads thus: “3. Vest­ing of rights in pan­chay­ats and in non-proprietors.- Notwith­stand­ing any­thing to the con­trary con­tained in any other law for the time being in force, and notwith­stand­ing any agree­ment; instru­ment, cus­tom or usage or any decree or order of any Court or other author­ity, all rights, title and inter­est what­ever in the land– (a) which is included in the Sham­lat Deh of any vil­lage, shall, on the appointed date, vest in a pan­chayat hav­ing juris­dic­tion over the vil­lage; (b) which is sit­u­ated in the Abadi Deh of a vil­lage and which is under the house owned by a non-proprietor, shall at the com­mence­ment of the Act vest in the said non-proprietor.” The Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion), 1953 and the Pepsu Vil­lage Com­mon Land (Reg­u­la­tion) Act, 1954 were repealed by the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1961. The Pun­jab and Haryana High Court has cat­e­gor­i­cally laid down in AIR 1964 (Pun­jab) 503 that the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1953 was an agrar­ian piece of leg­is­la­tion. The Hon’ble Supreme Court in AIR 1965 SC 632 and 1985 PLJ 463 had laid down that the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion), 1953 is an agrar­ian piece of leg­is­la­tion. The Hon’ble Supreme Court has explained in Gram Pan­chayat v. Mal­winder Singh, 1987 PLJ 463 the true nature of shamlat-deh as under: “Prior to the par­ti­tion of India on August 15, 1947 the Shamlat-deh lands in Pun­jab were owned by the pro­pri­etors of the other lands in the vil­lage, “Hasab Rasad Khe­wat”, that is to say, in the same pro­por­tion in which they owned the other lands. There­fore, a per­son who did not own any other land in the vil­lage could have no pro­pri­etary right or inter­est in the Shamlat-deh lands. But, though the inter­est of the pro­pri­etors of the other lands, in Shamlat-deh lands, was inci­den­tal to their pro­pri­etary inter­est in those other 10 lands, such inter­est in the Sham­lat was not a mere appendage to their inter­est in the other lands. Our learned Brother, Chin­nappa Reddy, has referred in his judg­ment to a lead­ing deci­sion of the Lahore High Court, Rah­man v. Sai, I.L.R. 9 Lahore 501, in which it was held that, if a pro­pri­etor alien­ated his land, the alie­nee would not acquire any inter­est in the Shami­lat by mere virtue of the alien­ation. That was but con­se­quen­tial to the well estab­lished legal posi­tion in Pun­jab that the Shamlat-deh lands were intended for the com­mon use of all shares.” Leg­isla­tive His­tory of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 (Act No.18 of 1974) here­inafter referred to as the Act for brevity sake was enacted to pro­vide for vest­ing and uti­liza­tion of vil­lage com­mon land in the State of Himachal Pradesh. The Act was passed by the Leg­isla­tive Assem­bly, Himachal Pradesh on 11.4.1974. The Act received the assent of the Pres­i­dent of India on 9.8.1974 and there­after the same was pub­lished in Raj­pa­tra, Himachal Pradesh Extra Ordi­nary dated 29.8.1974 as Act No.18 of 1974.

Before this Court con­sid­ers the salient fea­tures of the Act it will be apt to re-produce the state­ment of objects and rea­sons for leg­is­lat­ing the same. They read as under: At present in the areas added to Himachal Pradesh under sec­tion 5 of the Pun­jab Re-organisation Act, 1966, the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1961 is applic­a­ble. Under this Act the shami­lat land vests in the Pan­chay­ats who in turn, can lease out such land in accor­dance with the pro­vi­sions of the Act. It was found from expe­ri­ence that the imple­men­ta­tion of the Act was not prop­erly done by the Pan­chay­ats in respect of leases.

 

More­over, with respect to Hilly Areas of Kan­gra, Shimla, Una and Nala­garh, the leas­ing out of land was con­sid­ered against the National For­est Pol­icy. There­fore, the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) (Amend­ment) Act, 1964 was enacted pro­hibit­ing leases in the said areas. Inspite of the said amend­ment Act things 11 have not improved. Irreg­u­lar­i­ties con­tinue to be com­mit­ted by the Pan­chay­ats in leas­ing out the land. It has been, there­fore, con­sid­ered proper to vest the shami­lat land in the State Gov­ern­ment for its proper man­age­ment and uti­liza­tion. In the old areas there is no shami­lat law cor­re­spond­ing to that applic­a­ble in the new areas. The sami­lat land in the old areas also is not being prop­erly man­aged and uti­lized. It is, there­fore, con­sid­ered expe­di­ent to have a uni­form pol­icy, by way of enact­ing a law on the sub­ject, through­out the Pradesh.

 

The Himachal Pradesh Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 was placed in the 9^th sched­ule at Ser­ial No.139 by the Con­sti­tu­tion (For­ti­eth Amend­ment) Act, 1976.

Now we have to con­sider the var­i­ous Sec­tions of the Act to appre­ci­ate the sub­mis­sions made by the learned coun­sel for the par­ties. Sec­tions 3, 4, 5,6, 7 and 8 read thus: 3. Vest­ing of rights in the State Gov­ern­ment:- (1) Notwith­stand­ing any­thing to the con­trary con­tained in any other law for the time being in force or in any agree­ment, instru­ment, cus­tom or usage or any decree or order of any court or other author­ity all rights, title and inter­est includ­ing the con­tin­gent inter­est, if any, of the landowner in the lands in any estate– (a) vested in a Pan­chayat under sec­tion 4 of the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1961 (18 of 1961) as in force in the areas added to Himachal Pradesh under sec­tion 5 of the Pun­jab Re-organization Act, 1966 (31 of 1966) except lands used or reserved for4 the ben­e­fit of vil­lage com­mu­nity includ­ing streets, lanes, play­grounds, schools, drink­ing wells and ponds within abadi deh or grah deh; (b) described in the rev­enue records as shami­lat tarat pot­ties, pan­nas and thola and not used accord­ing to rev­enue records for the ben­e­fit of the vil­lage com­mu­nity or a part thereof or for com­mon pur­poses of the vil­lage in the areas added to Himachal Pradesh under sec­tion 5 of the Pun­jab Re-organisation Act, 1966; (31 of 1966) and © described in rev­enue records as shami­lat, shami­lat deh, shami­lat toraf and potti in the areas com­prised in Himachal Pradesh, imme­di­ately before first Novem­ber, 1966; 12 (2) The pro­vi­sions of sub-section(1) of this sec­tion shall not apply to lands described in clauses (b) and © of that sub-section if, before the date of com­mence­ment of this Act– (a) par­ti­tion of such lands is made by the indi­vid­ual co-sharers through a process of law by a com­pe­tent court or author­ity, (b) Trans­fer of such lands is made by the landowner by way of sale, gift or exchange.

 

© Such land built upon by an inhab­i­tant by rais­ing a res­i­den­tial house or cow-shed.

 

(3) The State Gov­ern­ment shall be liable to pay, and the landown­ers whose rights have been extin­guished under sub­sec­tion (1) of this sec­tion shall be enti­tled to receive the amount in lieu thereof at the fol­low­ing rates:- (i) for the land reserved for graz­ing and other com­mon pur­poses under clause (a) of sub-section (1) of section8, five times the annual land rev­enue includ­ing rates and cesses charge­able thereon; and (ii) for the remain­ing land, fif­teen times the annual land rev­enue includ­ing rates and cesses charge­able thereon: pro­vided that where the land vested in the state Gov­ern­ment under this act is not assessed to land rev­enue, the same shall be con­strued to be assessed as on sim­i­lar land in the estate and if not avail­able in the estate then in the adjoin­ing estate or estates as the case may be.

 

(4) The amount paid to a Pan­chayat under sec­tion 7 shall be deemed to be the Sabha Fund and shall be uti­lized for such pur­poses as are men­tioned in sec­tion 40 of the Himachal Pradesh Pan­chay­ati Raj act, 1968. (19 of 1970).

 

(5) The Col­lec­tor may, by order in writ­ing, at any time after the land vested in the State Gov­ern­ment, direct the landown­ers to deliver pos­ses­sion thereof within 10 days from the ser­vice of the order to such per­son as may be spec­i­fied in the order.

 

(6) If the landown­ers refuse or fail with­out rea­son­able cause to com­ply with the order made under sub sec­tion (5), the Col­lec­tor may take pos­ses­sion of the land and may for that pur­pose use such force as may be necessary.

 

13 4. Treat­ment of leases made by Pan­chay­ats:- (1) The Col­lec­tor shall call for from Pan­chay­ats in his dis­trict the record of leases, con­tracts or agree­ments entered into by the Pan­chay­ats in respect of any land vested in the Pan­chay­ats under the Pun­jab Vil­lage Com­mon Lands (Reg­u­la­tion) Act, 1961, (18 of 1961) and the rules made there­un­der and exam­ine such record him­self as to the legal­ity or pro­pri­ety of such leases, con­tracts or agreements.

 

(2) Where an exam­i­na­tion of the record under sub-section(1) and after mak­ing such enquiry as he deems fit, the Col­lec­tor is sat­is­fied that such leases, con­tracts or agree­ments are in accor­dance with the pro­vi­sions of the said Act and rules, he shall pass orders declar­ing such leases , con­tracts or agree­ments hav­ing been made on behalf of the State Gov­ern­ment; (3) Where on such exam­i­na­tion and enquiry the Col­lec­tor finds that a lease, con­tract or agree­ment has been entered into in con­tra­ven­tion of any of the pro­vi­sions of the said act or the rules made there­un­der or has been entered into as a result of fraud or con­ceal­ment of facts or is detri­men­tal to the inter­est of the estate right hold­ers, he shall con­ceal such a lease, con­tract or agree­ment and such per­son shall be liable to eject­ment under the pro­vi­sions of sec­tion 150 of the Pun­jab Land Rev­enue Act, 1887. (17 of 1887) Pro­vided that no order under sub sec­tions (2) and(3) of this sec­tion shall be passed by the Col­lec­tor with­out afford­ing an oppor­tu­nity of being heard to the par­ties to the lease, con­tract or agreement.

 

5. Treat­ment of amount payable to landown­ers: — Where land vested in the State Gov­ern­ment has been encroached upon by any per­son before or after the com­mence­ment of this act, the rev­enue Offi­cer may of his own motion eject such per­son in accor­dance with the pro­vi­sions of sec­tion 150 of the Pun­jab Land Rev­enue 14 Act,1887 (17 of 1887), or sec­tion 163 of the Himachal Pradesh Land Rev­enue Act, 1954 (17 of 1887) as the case may be.

 

6. Deter­mi­na­tion of amount payable to landown­ers:- (1) The Col­lec­tor shall cause a notice to be served in the pre­scribed form and man­ner, to the landowner, whose rights have been extin­guished under sub-section (1) of sec­tion 3, stat­ing therein the area of land vested in the State Gov­ern­ment and the amount pro­posed there­fore, imme­di­ately after the com­mence­ment of this Act, call­ing upon him to pre­fer objec­tions, if any, within 60 days from the receipt of the notice: Pro­vided that the Col­lec­tor may enter­tain the objec­tions after the expiry of the said period of 60 days if he is sat­is­fied that the landowner was pre­vented by suf­fi­cient cause from fil­ing the objec­tions within the pre­scribed time.

 

(2) The Col­lec­tor after giv­ing the landowner or landown­ers, as the case may be, an oppor­tu­nity of being heard and mak­ing such enquiry as may be nec­es­sary, shall make an award deter­min­ing the amount payable by the State Gov­ern­ment to the landown­ers in accor­dance with the pro­vi­sions of sub­sec­tion (3) of sec­tion 3 and also appor­tion the amount thereof among the landowners.

 

(3) Where the amount is payable to a minor, the Col­lec­tor may make such arrange­ments as may be equi­table hav­ing regard to the inter­est of the minor.

 

7. Pay­ment of amount:- The amount payable to a landowner under sec­tion 6 shall be paid in the man­ner and in such num­ber of six monthly instal­ments not exceed­ing ten as may be prescribed.

 

8. Uti­liza­tion of land vested in the State Gov­ern­ment:- (1) All lands vested in the State Gov­ern­ment under this Act shall be uti­lized for the fol­low­ing pur­poses: (a) an area not less than fifty per cent of the total area vested in the State Gov­ern­ment under sec­tion 3 of this Act for graz­ing and other com­mon pur­poses of the inhab­i­tants of an estate; and (b) The remain­ing land:– (i) for allot­ment to a land­less per­son or any other eli­gi­ble 15 per­son; or (ii) for allot­ment of site to a hand­i­capped or land­less per­son for the con­struc­tion of a house; under a scheme to be framed by the State Gov­ern­ment by noti­fi­ca­tion in the offi­cial Gazette and the allot­tee shall pay an amount at the rate of forty-eight times of the land rev­enue and rates and cesses charge­able on the land allot­ted to him under the said scheme, either in lump sum or in six monthly instal­ments not exceed­ing four.” (2) the land reserved under clause (a) of sub-section (1) of this sec­tion shall be demar­cated by such Rev­enue Offi­cer and in such man­ner as may be prescribed.

 

(3) Any scheme framed by the State Gov­ern­ment under clause (b) of sub-section (1) of this sec­tion may pro­vide for the terms and con­di­tions on which the land is to be allotted.

 

(4) The State Gov­ern­ment may, by noti­fi­ca­tion in the Offi­cial Gazette, add to, amend, vary or revoke any scheme made under this section.

 

The amend­ments were car­ried out in the Act by the Act called the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Util­i­sa­tion (Amend­ment) Act, 1981. The amend­ment car­ried out has come into force with effect from Ist Jan­u­ary, 1979. By way of the Amend­ment Act 1981, new sec­tion 8-A was inserted, namely: 8-A. Util­i­sa­tion of land for devel­op­ment of the State:- Notwith­stand­ing any­thing con­tained in Sec­tion 8 of the Act, the State Gov­ern­ment may uti­lize any area of the land vested in it under the Act by lease to any per­son or by trans­fer to any Depart­ment of the Gov­ern­ment in the inter­ests of the devel­op­ment of the State, if the State Gov­ern­ment is sat­is­fied that there are suf­fi­cient rea­sons to do so sub­ject to the con­di­tion that land for the pur­poses men­tioned in clause (a) of sub-section (1) of sec­tion 8 in no case shall be less than fifty per cent of the land vested in the Gov­ern­ment under the Act.

 

16 Pro­vided that when land is not used by a per­son for the pur­pose for which it has been leased, the lease shall stand ter­mi­nated free from all encum­brances and the Gov­ern­ment shall re-enter on the demised premises and lease money, “if paid to the Gov­ern­ment, shall be for­feited and no per­son shall be enti­tled to any com­pen­sa­tion for any improve­ment made and for any build­ing con­structed thereon.” The state­ment of objects and rea­sons for intro­duc­ing the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Util­i­sa­tion (Amend­ment) Act, 1981 reads thus: Sec­tion 8 of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 (Act No.18 of 1974) pro­vides that all lands vested in the State Gov­ern­ment under sec­tion 3 of the Act, shall be uti­lized only for two pur­poses, viz. (i) an area not less than 50% of the total area vested in the State Gov­ern­ment for graz­ing and other com­mon pur­poses of the inhab­i­tants of the estate con­cerned; and (ii) the remain­ing and for allot­ment to land­less per­sons. The land vested under sec­tion 3 of the said Act, also com­prises such land which is not suit­able for either of the pur­poses men­tioned in sec­tion 8 of the Act, but can be more prof­itably be uti­lized for the devel­op­ment of tourism and indus­trial pur­poses. In the pub­lic inter­est and to explore the pos­si­bil­i­ties of the devel­op­ment of the tourism and indus­trial activ­i­ties, it had been decided to make amend­ment in the act imme­di­ately. Since the Leg­isla­tive Assem­bly was not in ses­sion and the cir­cum­stances existed which ren­dered it nec­es­sary for the Gov­er­nor to take imme­di­ate action by pro­mul­gat­ing an Ordi­nance under Arti­cle 213(1) of the Con­sti­tu­tion of India, the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Ordi­nance, 1981 (Ordi­nance No.3 of 1981) was pro­mul­gated by the Gov­er­nor on the 15th June, 1981. Now this Ordi­nance is required to be replaced by a reg­u­lar legislation.

 

The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 was fur­ther amended by the Act called the Himachal Pradesh Vil­lage 17 Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 1987. Sec­tions 2, 3 and 4 of the said Act reads : “2. In sec­tion 2 of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 (here­inafter called the prin­ci­pal Act).- (i) after the exist­ing clause (a), the fol­low­ing clauses (aa) and (aaa) shall be inserted, namely:– (aa) “hand­i­capped per­son” means a crip­pled or phys­i­cally or med­ically defi­cient per­son whose annual income from all sources does not exceed rupees seven thou­sand and five hun­dred and who, on account of injury, dis­ease or con­gen­i­tal defor­mity, is sub­stan­tially pre­vented from or is inca­pable of lead­ing a nor­mal life or earn­ing full wages for the work in which he is employed; or obtain­ing or keep­ing employ­ment or under­tak­ing work on his own of a kind in view of that injury, dis­ease or defor­mity which work would have suited his age, expe­ri­ence and qualifications.

 

Explanation.—For the pur­poses of this clause, a per­son who has incurred phys­i­cal dis­able­ment to the extent of fifty per cent or more shall be deemed to be sub­stan­tially inca­pable or dis­abled per­son”, (aaa) “house­less per­son” means a per­son who owns no house or a site to con­struct a house for him­self: Pro­vided that a per­son whose father is alive or whose annual income from all sources exceeds Rs.3,000/- shall not be deemed to be a house­less per­son;” (ii) for the sign “ ” occur­ring at the end of clause ( c ), the sign “ ” shall be sub­sti­tuted and there­after the fol­low­ing pro­viso shall be added, namely:– “pro­vided that a per­son whose father is alive or whose annual income from all sources exceeds Rs.3000/- shall not be deemed to be a land­less per­son;” and (iii) after the exist­ing clause (d), the fol­low­ing clause (dd) shall be added,- “(dd)”other eli­gi­ble per­son” means a per­son.- 18 (i) who, hold­ing land for agri­cul­tural pur­poses less than an area whether as an owner or a ten­ant, earns his liveli­hood prin­ci­pally by man­ual labour on land and intends to take the pro­fes­sion of agri­cul­ture and is capa­ble of cul­ti­vat­ing the land per­son­ally; (ii) whose father is not alive; and (iii) whose annual income from all sources does not exceed Rs.3000/-; and shall not include a per­son who holds a share or a por­tion of an estate jointly owned or cul­ti­vated by two or more per­sons.” 3. For clause (b) of sub-section (1) of sec­tion 8, the fol­low­ing clause (b) shall be sub­sti­tuted, namely:- “(b) the remain­ing land— (i) for allot­ment to a land­less per­son or any other eli­gi­ble per­son; or (ii) for allot­ment of site to a hand­i­capped or house­less per­son for the con­struc­tion of a house; under a scheme to be framed by the State Gov­ern­ment by noti­fi­ca­tion in the Offi­cial Gazette and the allot­tee shall pay an amount at the rate of forty-eight times of the land rev­enue and rtes and cesses charge­able on the land allot­ted to him under the said scheme, either in lump sum or in six monthly instal­ments not exceed­ing four.” 1. Where any allot­ment of land made under any scheme, framed under the prin­ci­pal Act, is found to be incon­sis­tent with the pro­vi­sions made in the prin­ci­pal Act, as amended by sec­tions 2 and 3 of this Act, then notwith­stand­ing any­thing to the con­trary con­tained in any judg­ment, decree or order of any court, or any other law for the time being in force, it shall be law­ful for an offi­cer espe­cially empow­ered by the State Gov­ern­ment for this pur­pose, to can­cel such allot­ment and take pos­ses­sion of the land so allot­ted: 19 Pro­vided that no order under this sec­tion shall be passed with­out afford­ing an oppor­tu­nity of being heard to the allot­tee of the land in ques­tion.” The state­ment of objects and rea­sons for bring­ing out the 1987 Amend­ment Act reads thus: In 1975, a mas­sive pro­gramme of allot­ment of and was launched by the Gov­ern­ment under the 20-Point Pro­gramme enun­ci­ated by the Prime Min­is­ter. Under this pro­gramme, all the land­less agri­cul­tural labour­ers who had no land or had land less than an acre, were to be allot­ted land upto an acre. The lat­ter cat­e­gory was called “other eli­gi­ble persons”.

 

Among the sources from which land was and is being allot­ted to both the cat­e­gories, is the vil­lage com­mon land vested in the Gov­ern­ment under the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Util­i­sa­tion Act, 1974.

The def­i­n­i­tion of the expres­sion “land­less per­son” as given in that Act at present, was sup­ple­mented by instruc­tions issued in Octo­ber, 1975 lay­ing down that a per­son hav­ing his father alive and income exceed­ing Rs.3,000/- per annum from all sources shall not be a land­less per­son for the pur­poses of allot­ment of land.

The allot­ment of land has been made in the light of these guide­lines and allot­ments found to have been made in vio­la­tion of these admin­is­tra­tive instruc­tions had been can­celled by the com­pe­tent authority.

This arrange­ment has, how­ever, not found favour with the Civil Courts which have held that the def­i­n­i­tion of the expres­sion “land­less per­son” as given in the Act does not embody the con­di­tions pre­scribed under the admin­is­tra­tive instruc­tions. It has, there­fore, become nec­es­sary to amend the above def­i­n­i­tion and make con­se­quen­tial pro­vi­sions to can­cel the allot­ment of lands obtained by cer­tain unscrupu­lous per­sons by con­ceal­ing facts at the rel­e­vant time.

20 Besides, the State Gov­ern­ment has also decided that a hand­i­capped per­son hav­ing 50% or more dis­abil­ity should be granted house-site for con­struc­tion of his house. Then there may be other pur­poses also for which land is often required. At present there is no enabling pro­vi­sion in the Act on this score. Sec­tion 8 has, there­fore, to be amended suitably.

This Bill seeks to achieve the afore­said objec­tives.” The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974. was fur­ther amended by the Act called the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 2001.

Sec­tions 2 to 9 reads thus: 2. Amend­ment of Sec­tion 2—In Sec­tion 2 of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 (18 of 1974) (here­inafter referred to as “the prin­ci­pal Act”).- (a) after clause (20, the fol­low­ing shall be added, namely:- — “(a-1) “Com­mon pur­poses” means and includes graz­ing, col­lec­tion of fuel wood and tree leaves for fod­der, school build­ings, Pan­chayat Ghars,Mahila Man­dal Bhawans, School Play­grounds, Com­mu­nity Halls, Janj Ghars, Dis­pen­saries, Gov­ern­ment Offices, Kisan Mand­lies, tree plan­ta­tion under var­i­ous State Gov­ern­ment Schemes and any other pub­lic facil­i­ties”; (b) in clause (aa), for the words “rupees seven thou­sand and five hun­dred”, the words and sign “the limit fixed for per­sons liv­ing below poverty line as noti­fied by the State Gov­ern­ment from time to time,” shall be sub­sti­tuted; and © in pro­vi­sos below clauses (aaa) and (c ) and in sub­clause (iii) of clause (dd), for the word, sign and fig­ure “Rs.3,000/-“, the words and sign “the limit fixed for per­sons liv­ing below poverty line as noti­fied by the State Gov­ern­ment from time to time,” shall be substituted.

 

21 3. Amend­ment of Sec­tion 3,– In Sec­tion 3 of the prin­ci­pal Act.- (a) In sub-section (1), for clauses (b) and (c ), the fol­low­ing shall be sub­sti­tuted, namely:- “(b) described in therev­enue records as sham­lat taraf, pat­ties, pan­nas, thola, sham­lat, sham­lat deh, sham­lat chak, sham­lat tika or by any such other descrip­tion and not used accord­ing to rev­enue records for the ben­e­fit of the com­mu­nity in the vil­lage or a part thereof or for com­mon pur­poses of the vil­lage in the areas added to Himachal Pradesh under Sec­tion 5 of the Pun­jab Re-organization Act, 1966 (3) of 1966); and (c ) described in rev­enue records as sham­lat, sham­lat deh, sham­lat taraf, sham­lat chak, patti or by any other such descrip­tion in the areas com­prised in Himachal Pradesh imme­di­ately before Ist Novem­ber, 1966”; (b) in sub-section (s), after clause (c ), the fol­low­ing shall be added, namely:- “(d) land recorded as “sham­lat tika Hasab Rasad Mal­guzari” or by any such other name in the own­er­ship col­umn of jam­a­bandi and assessed to land rev­enue and has been con­tin­u­ously recorded in cul­ti­vat­ing pos­ses­sion of the co-sharers so recorded before 26th Jan­u­ary, 1950 to the extent of their shares therein; Pro­vided that the pro­vi­sions of this clause shall not be applic­a­ble to such lands which have already been put to use by the Gov­ern­ment.” 4. Amend­ment of Sec­tion 4.—In Sec­tion 4 of the prin­ci­pal Act, in sub-section (2), after the words “State Gov­ern­ment”, the words “and will fix the lease money at the rate noti­fied by 22 the State Gov­ern­ment from time to time. Such lease money shall be recov­ered by the Pan­chayat con­cerned from the lessee,” shall be added.

 

5. Sub­sti­tu­tion of Sec­tion 5.– For Sec­tion 5 of the prin­ci­pal Act, the fol­low­ing shall be sub­sti­tuted, namely:- “5. Treat­ment of encroach­ments on sham­lat land or the lands vested in the State Gov­ern­ment.- Where the land vested in the State Gov­ern­ment or the sham­lat land by what­ever term it is recorded in the rev­enue records, which has not vested in the State Gov­ern­ment , has been encroached upon by any per­son or co-sharer before or after the com­mence­ment of this Act, the Rev­enue Offi­cer may of his own motion or on the report of the Pat­wari of the cir­cle duly ver­i­fied by the Kanungo of the cir­cle or on the appli­ca­tion of any estate right holder or co-sharer, eject such per­son in accor­dance with the pro­vi­sions of sec­tion 163 of the Himachal Pradesh Land Rev­enue Act„ 1954 (6 of 1954).” 6. Amend­ment of sec­tion 8.- In Sec­tion 8-A of the prin­ci­pal Act, in sub-section (1), in clause (b), after sub clause (ii), the fol­low­ing shall be added, namely:- (a) after the words “State Gov­ern­ment” and before the words “may uti­lize”, the words “or any other Offi­cer autho­rized by the State Gov­ern­ment in this behalf” shall be added; and (b) after the words “State Gov­ern­ment” and before the words “is sat­is­fied”, the words “or the Offi­cer autho­rized by it” shall be added.

 

7. Amend­ment of Sec­tion 8-A.—In Sec­tion 8-A of the prin­ci­pal Act.- (a) after the words “State Gov­ern­ment” and before the words “may uti­lize”, the words “or any other Offi­cer autho­rised by the State Gov­ern­ment in this behalf” shall be added; and 23 (b) after the words “State Gov­ern­ment” and before the words “is sat­is­fied” , the words “or the Offi­cer autho­rized by it” shall be added.

 

8. Inser­tion of Sec­tion 9-A.– After Sec­tion 9 of the prin­ci­pal Act, the fol­low­ing shall be inserted, namely:- “9-A. Review.—(1) The Col­lec­tor or the Offi­cer autho­rised by the State Gov­ern­ment under Sec­tion 9 may, either on his own motion or on the appli­ca­tion of any party inter­ested, review and on so review­ing, mod­ify, reverse or con­firm any order passed by him­self or by any of his pre­de­ces­sors in office.

 

(2) No order shall be mod­i­fied or reversed in review unless a notice has been given to the par­ties affected thereby to appear and be heard in sup­port of the order.

 

(3) An order against which an appeal has been pre­ferred shall not be reviewed.

 

(4) An appli­ca­tion for review of an order shall not be enter­tained unless it is made within 90 days of the pass­ing of the order, or unless the appli­cant sat­is­fies the Col­lec­tor or an Offi­cer autho­rised by the State Gov­ern­ment that he had suf­fi­cient cause for not mak­ing the appli­ca­tion within that period.” The state­ment of objects and rea­sons for bring­ing about the 2001 Amend­ment Act reads thus: The State Gov­ern­ment appointed a Com­mit­tee to make a com­pre­hen­sive review of the land laws of the State, which exam­ined the Himachal Pradesh Vil­lage Com­mon Lands vest­ing and Uti­liza­tion Act, 1974. The Gov­ern­ment fur­ther appointed a Com­mit­tee of Offi­cers of the rev­enue Depart­ment under the Chair­man­ship of the Com­mis­sioner (Rev­enue) to study the rec­om­men­da­tions of the High Pow­ered Com­mit­tee. The Com­mit­tee con­sid­ered the rec­om­men­da­tions and accepted most of them.

 

The expres­sion “com­mon pur­poses” is not defined in Sec­tion 2. In order to make the pro­vi­sion of sec­tion 3(a) clearer, it has been 24 decided to define the expres­sion “com­mon pur­poses”. The limit of income fixed under clause (aa) of sec­tion 2, for being a “hand­i­capped per­son” and in pro­viso to clause (aaa) of sec­tion 2, for being a “house­less per­son” is being revised.

 

In Sec­tion 4 of the Act ibid there is no clear pro­vi­sion about the lease money or rent etc. to be fixed by the Gram Pan­chay­ats which the lessee should pay. Now a pro­vi­sion of lease money to be charged by the Pan­chayat con­cerned from the lessee is being made. Sim­i­larly Sec­tion 5 pro­vides for deal­ing with encroach­ment on lands vested in the State Gov­ern­ment under Sec­tion 3 of the Act, but does not pro­vide for as to how encroach­ments on Sham­lat lands which have not vested in the State Gov­ern­ment is to be removed. Hence, amend­ment has been pro­posed in Sec­tion 5 of the Act pro­vid­ing therein clear pro­vi­sion of eject­ment of encroacher. At present there is no pro­vi­sion of review in the Act ibid, now it has been decided to make pro­vi­sion of review in the act itself. In order to remove irreg­u­lar­i­ties and ille­gal­i­ties made in vest­ment of com­mon land, it has been decided to give ret­ro­spec­tive effect to the pro­posed Bill. These have neces­si­tated the amend­ments in the Act ibid. “ The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 was fur­ther amended by the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 2005. Sec­tions 2 and 3 of 2005 Act reads thus: 2. In sec­tion 3 of the Himachal­Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974, after sub-section (2), the fol­low­ing new sub-sections shall be added, namely:- “(2-a)The land reverted back to co-sharers under clause (d) of sub-section (2 ) shall not be trans­ferred by such co-sharers, by way of sale, gift, mort­gage or oth­er­wise, dur­ing a period of twenty five years from the date of muta­tion of such land.

 

(2-b)No Reg­is­trar or the Sub-Registrar, appointed under the Reg­is­tra­tion Act, 1908, shall reg­is­ter any doc­u­ment 25 per­tain­ing to trans­fer of such land, which is in con­tra­ven­tion of sub-section (2-a) and such trans­fer shall be void ab ini­tio and the land involved in such trans­fer, if made in con­tra­ven­tion of sub-section (2-a), shall vest in the State Gov­ern­ment free from all encum­brances.” 3. (1) The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Ordi­nance, 2005 is hereby repealed.

 

(2) Notwith­stand­ing such repeal, any­thing done or any action taken under the Ordi­nance so repealed, shall be deemed to have been done or taken under the cor­re­spond­ing pro­vi­sions of this Act.

 

The State Gov­ern­ment had framed the Rules called the Himachal Pradesh Vil­lage Com­mon Lands vest­ing and Uti­liza­tion Rules, 1975, here­inafter referred to as the Rules. Rule 2 defines expres­sion like ‘Act’, “allotable pool”, “eli­gi­ble per­son” etc. Rule 3 pro­vides for tak­ing pos­ses­sion of the land and Rule 4 pro­vides the mech­a­nism for muta­tion of land in favour of the State Gov­ern­ment. The detailed pro­ce­dure for demar­ca­tion of land under Sec­tion 8 has been pro­vided under Rule 6.

The State Gov­ern­ment has also framed the Rules called the Himachal Pradesh Lease Rules, 1993 in exer­cise of the pow­ers vested under Sec­tion 13 of the of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 and under Sec­tion 26 of the Himachal Pradesh Ceil­ing on Land Hold­ings Act, 1972. Rule 2 is a dic­tio­nary clause which defines var­i­ous expres­sions like a “Demar­cated Pro­tected For­est”, “Reserved For­est” etc. Rule 3 pro­vides for the mech­a­nism for the grant of land lease and Rule 4 pro­vides for the pur­poses for which the lease may be granted. The max­i­mum limit of grant is pro­vided under Rule 5. The eli­gi­bil­ity for the grant of land on lease is pro­vided under Rule 6. The detailed pro­ce­dure for grant of land on lease com­mences 26 from Rule 10 to 23. The Himachal Pradesh Lease Rules, 1993 have been fur­ther amended by the Himachal Pradesh Lease (Amend­ment) Rules, 2002 whereby amend­ments have been car­ried out in Rules 4, 5, 6, 8, 13, 20, 26 and 27.

The State has also framed a Scheme called the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Scheme 1975 here­inafter referred to as the ‘Scheme’. Para 3 of the Scheme lays down the pro­ce­dure to be observed by the Tehsil Rev­enue Offi­cer, whereby it is pro­vided that imme­di­ately after the land vested in the State Gov­ern­ment under Sec­tion 3 of the Act is mutated in favour of the State, the Tehsil­dar Rev­enue Offi­cer shall invite appli­ca­tions through procla­ma­tion from the eli­gi­ble per­sons in form-1 to be sub­mit­ted to him within six weeks thereof. The pro­ce­dure for allot­ment of land from the allotable pool is pro­vided under Para 5 of the Scheme. Para 7 pro­vides that each allot­tee shall be given a cer­tifi­cate by the Col­lec­tor and the mode of deliv­ery of pos­ses­sion is pro­vided under Para 7 of the Scheme. Para 9 of the Scheme lays down the con­di­tions of allotment.

1. Whether the peti­tion­ers have the nec­es­sary locus standi to file and main­tain the writ peti­tion on their behalf and on behalf of co-villagers for return­ing their land on the basis of inser­tion of clause (d) of sub-section (2) of sec­tion (3) of the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974? The present peti­tion has been filed by the peti­tion­ers on their behalf as well on behalf of the Vil­lage Pro­pri­etors Body for return­ing of their lands which stood vested in the State of Himachal Pradesh by Act No.18 of 1974. The total land owned and pos­sessed by the peti­tion­ers along with other vil­lagers was 5679 bighas of vil­lage com­mon land. The state had returned to them land mea­sur­ing 4276.09 bighas after the pass­ing of Act No.20 of 2001, but land mea­sur­ing 1338.03 bighas has not been returned to them out of which land mea­sur­ing 39.5 bighas had been granted in favour of respon­dent No.3 by way 27 of lease for min­ing pur­poses. The peti­tion­ers belong to remote area in dis­trict Sir­mour. They have assailed the con­sti­tu­tional valid­ity of Sec­tion 8-A added to the Prin­ci­pal Act by way of Act No.18 of 1981. They have also chal­lenged the action of respon­dent State of not return­ing their own land to them to which they are legally enti­tled after the pass­ing of Act no.20 of 2001.

The respon­dent No.3 has stated in his reply that he believed that on or about 14.12.2006 a meet­ing of the alleged right hold­ers of Banor estate was held in which about 90% of the par­tic­i­pants had passed a res­o­lu­tion to the effect that they have no objec­tion of any kind for the oper­a­tion of min­ing car­ried out by him. Mr.Deepak Kaushal learned coun­sel has filed reply on behalf of respon­dents No.4 to 329. In the reply filed on their behalf, the prin­ci­pal stand is that though they are co-owners of the vil­lage com­mon land but they had no objec­tion to the min­ing oper­a­tion being car­ried out by respon­dent No.3. The man­ner in which the co-villagers i.e. respon­dents No. 4 to 329 have sup­ported the case of the respon­dent No.3 depicts how gullible they are. The Court does not approve the fian­gle man­ner in which the inno­cent vil­lagers were made to approve the min­ing lease accorded in favour of respon­dent No.3 to the extent of waiv­ing their own con­sti­tu­tional and legal rights. It is set­tled law by now that the fun­da­men­tal rights can nei­ther be waived nor bartered away. The Court once apprised of the true facts will never ever shirk from its respon­si­bil­ity enjoined upon it by the Con­sti­tu­tion to pro­tect the rights of the downtrodden/residuum like the peti­tion­ers and respon­dents No.4 to 329.

The valid­ity of Sec­tion 8-A has been chal­lenged by the peti­tion­ers pri­mar­ily on the ground that it did not enjoy the pro­tec­tion of Sched­ule IX since the Pres­i­den­tial assent was not obtained in the year 1981 and sec­ondly the term ‘devel­op­ment’ as per Sec­tion 8-A must be akin to the agri­cul­tural pur­suits and by no stretch of imag­i­na­tion the land vested in the State could be allot­ted for the pur­pose of min­ing in favour of respon­dent No.3. Thirdly the peti­tion­ers have prayed for return­ing of their lands by the State after the inser­tion of sub 28 sec­tion (d) in sub sec­tion 2 of Sec­tion 3 of the Act which has come into force with effect from 9.8.1974. The peti­tion­ers have filed the peti­tion for pro­tec­tion of their con­sti­tu­tional as well as legal rights.

Con­se­quently it is held that the peti­tion­ers have the locus to file the peti­tion on their behalf as also on behalf of the mem­bers of the pro­pri­etors’ body for pro­tect­ing their con­sti­tu­tional and legal rights. The plea raised by Mr.

Bhu­pen­der Gupta, senior coun­sel that the present peti­tion is actu­ated with legal malafide and has been filed to achieve ulte­rior pur­poses, is not sustainable.

The peti­tion­ers are enti­tled to enforce their con­sti­tu­tional rights indi­vid­u­ally as well as for pro­tec­tion of the rights of the sim­i­larly sit­u­ate vil­lagers who due to poverty and igno­rance are not in a posi­tion to approach this court for redres­sal of their griev­ances. The Court is for­ti­fied in tak­ing this view in view of the def­i­nite pro­nounce­ments of law by the Supreme Court with regard to the locus standi and main­tain­abil­ity of pub­lic inter­est litigation.

Their Lord­ships of the Supreme Court have dis­cussed the entire law with regard to fil­ing and main­tain­ing the pub­lic inter­est lit­i­ga­tion in the fol­low­ing man­ner: The Hon’ble Supreme Court after trac­ing the his­tory and devel­op­ment of locus standi vis-à-vis pub­lic inter­est lit­i­ga­tion has held in S.P. Gupta V. M.

 

Tarkunde, J.L. Kalra and oth­ers, Iqbal M. Chagla and oth­ers, Rajappa, P.

 

Sub­ra­ma­niam, D.N. Pandey and oth­ers. V. Pres­i­dent of India and oth­ers etc., AIR 1982 SC 149 as under:- “The tra­di­tional rule in regard to locus standi is that judi­cial redress is avail­able only to a per­son who has suf­fered a legal injury by rea­son of vio­la­tion of his legal right or legal pro­tected inter­est by the impugned action of the State or a pub­lic author­ity or any other per­son or who is likely to suf­fer a legal injury by rea­son of threat­ened vio­la­tion of his legal right or legally pro­tected inter­est by any such action. The basis of enti­tle­ment to judi­cial redress is per­sonal injury to prop­erty, body, mind or rep­u­ta­tion aris­ing from vio­la­tion, actual or threat­ened, of the 29 legal right or legally pro­tected inter­est of the per­son seek­ing such redress. This is a rule of ancient vin­tage and it arose dur­ing an era when pri­vate law dom­i­nated the legal scene and pub­lic law had not yet been born. The lead­ing case in which this rule was enun­ci­ated and which marks the start­ing point of almost every dis­cus­sion on locus standi is Exparte Side­botham, (1980) 14 Ch D 458. There the Court was con­cerned with the ques­tion whether the appel­lant could be said to a ‘per­son aggrieved’ so as to be enti­tled to main­tain the appeal. The Court in a unan­i­mous view held that the appel­lant was not enti­tled to main­tain the appeal because he was not a ‘per­son aggrieved’ by the deci­sion of the lower Court. James, L.J. gave a def­i­n­i­tion of ‘per­son aggrieved’ which, though given in the con­text of the right to appeal against a deci­sion of a lower Court, has been applied widely in deter­min­ing the stand­ing of a per­son to seek judi­cial redress, with the result that it has stul­ti­fied the growth of the law in regard to judi­cial reme­dies. The learned Lord Jus­tice said that a ‘per­son aggrieved’ must be a man “who has suf­fered a legal griev­ance, a man against whom a deci­sion has been pro­nounced which has wrong­fully deprived him of some­thing or wrong­fully refused him some­thing or wrong­fully affected his title to some­thing.” Thus def­i­n­i­tion was approved by Lord Esher M.R. in In Re Reed Bowen & Co. (1887) 19 QBD 174 and the learned Mas­ter of the Rolls made it clear that when James L.J.

 

said that a per­son aggrieved must be a man against whom a deci­sion has been pro­nounced which has wrong­fully refused him of some­thing, he obvi­ously meant that the per­son aggrieved must be a man who has been refused some­thing which he had a right to demand. There have been numer­ous sub­se­quent deci­sions of the Eng­lish Courts where this def­i­n­i­tion has been applied for the pur­pose of deter­min­ing whether the per­son seek­ing judi­cial redress had locus standi to main­tain the action.

 

It will be seen that, accord­ing to this rule, it is only a per­son who has suf­fered a spe­cific legal injury by rea­son of actual or threat­ened vio­la­tion of his legal right or legally pro­tected inter­est who can bring an action for judi­cial redress. Now obvi­ously where an appli­cant has a legal right or a legally pro­tected inter­est, the vio­la­tion of which would result in legal injury to him, 30 there must be a cor­re­spond­ing duty owned by the other party to the appli­cant. This rule in regard to locus standi thus pos­tu­lates a right duty pat­tern which is com­monly to be found in pri­vate law lit­i­ga­tion. But, nar­row and rigid though this rule may be, there are a few excep­tions to it which have been evolved by the Courts over the years.

 

There is also another excep­tion which has been carved out of this strict rule of stand­ing which requires that the appli­cant for judi­cial redress must have suf­fered a legal wrong or injury in order to enti­tle him to main­tain an action for such redress. It is clear that, hav­ing regard to this rule, no one can ordi­nar­ily seek judi­cial redress for legal injury suf­fered by another per­son; it is only, such other per­son who must bring action for judi­cial redress. It is on this prin­ci­ple that the Supreme Court of the United States held in United States v.

 

James Griggs Raines, (1960) 362 US 17 : 4 L Ed 2d 524 that a lit­i­gant may only assert his own con­sti­tu­tional rights or immu­ni­ties and save in excep­tional cases, no per­son can claim stand­ing to vin­di­cate the con­sti­tu­tional rights of a third party.

 

But it must now be regarded as well set­tled law where a per­son who has suf­fered a legal wrong or a legal injury or whose legal right or legally pro­tected inter­est is vio­lated, is unable to approach the Court on account of some dis­abil­ity or it is not prac­ti­ca­ble for him to move the Court for some other suf­fi­cient rea­sons, such as his socially or eco­nom­i­cally dis­ad­van­taged posi­tion, some other per­son can invoke assis­tance of the Court for the pur­pose of pro­vid­ing judi­cial redress to the per­son wronged or injured, so that the legal wrong or injury caused to such per­son does not go unre­dressed and jus­tice is done to him.

 

Take for exam­ple, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obvi­ously can­not on his own approach the Court because of his dis­abil­ity aris­ing from minor­ity. The law there fore pro­vides that any other per­son act­ing as his next friend may bring an action in his name for judi­cial redress vide : Order XXXII of Civil P.C. So also where a per­son is detained and is there fore not in a posi­tion to move the Court for secur­ing his release, any other per­son may file an 31 appli­ca­tion for a writ of habeas cor­pus chal­leng­ing the legal­ity of his deten­tion. Of course, this Court has ruled in a num­ber of cases that a pris­oner is enti­tled to address a com­mu­ni­ca­tion directly to the Court com­plain­ing against his deten­tion and seek­ing release and if he addresses any such com­mu­ni­ca­tion to the Court, the Super­in­ten­dent of the prison is bound to for­ward it to the Court and, in fact, there have been numer­ous instances where this Court has acted on such com­mu­ni­ca­tion received from a pris­oner and treat­ing it as an appli­ca­tion for a writ of habeas cor­pus, called upon the detain­ing author­ity to jus­tify the legal­ity of such deten­tion and on the fail­ure of the detain­ing author­ity to do so, released the pris­oner. But since a per­son detained would ordi­nar­ily be unable to com­mu­ni­cate with the out­side world, the law pre­sumes that he will not be able to approach the Court and hence per­mits any other per­son to move the Court for judi­cial redress by fil­ing an appli­ca­tion for a writ of habeas cor­pus. Sim­i­larly, where a trans­ac­tion is entered into by the Board of Direc­tors of a com­pany which is ille­gal or ultra vires the com­pany, but the major­ity of the share­hold­ers are in favour of it and hence it is not pos­si­ble for the com­pany to sue for set­ting aside the trans­ac­tion, any share­holder may file an action impugn­ing the trans­ac­tion. Here it is the com­pany which suf­fers a legal wrong or a legal injury by rea­son of the ille­gal or ultra vires trans­ac­tion impugned in the action, but an indi­vid­ual share­holder is per­mit­ted to sue for redress­ing such legal wrong or injury to the com­pany, because oth­er­wise the com­pany, being under the con­trol of the major­ity share­hold­ers would be with­out judi­cial redress. Vide: Atwood v. Merry Weather, (1867) 5 Eq 464, The Judi­cial Com­mit­tee of the Privy Coun­cil also affirmed this excep­tion to the strict rule of stand­ing in Durayap­pah v.

 

Fer­nando, (1967) 2 AC 337. There what hap­pened was that the Jaffna Munic­i­pal Coun­cil was dis­solved by the Min­is­ter of Local Gov­ern­ment with­out giv­ing it an oppor­tu­nity to be heard. The order of dis­so­lu­tion was there­fore void­able at the instance of the Coun­cil, but the Coun­cil did not com­plain. The appel­lant was a mayor at the time of the dis­so­lu­tion and he peti­tioned for a writ in the nature of cer­tio­rari to quash the order of dis­so­lu­tion. Lord 32 Upjohn speak­ing on behalf of the Judi­cial Com­mit­tee denied stand­ing to the appel­lant in the fol­low­ing words: “The appel­lant was no doubt mayor at the time of its dis­so­lu­tion but that does not give him any right to com­plain inde­pen­dently of the Coun­cil. He must show that he is rep­re­sent­ing the Coun­cil or suing on its behalf or that by rea­son of cer­tain cir­cum­stances, such, for exam­ple, as that the coun­cil could not use its seal because it is in the pos­ses­sion of the Munic­i­pal Com­mis­sioner, or for other rea­sons it has been imprac­ti­ca­ble for the mem­bers of the coun­cil to meet to pass the nec­es­sary res­o­lu­tions, the coun­cil can­not be the plain­tiff.” The Judi­cial Com­mit­tee thus clearly laid down that for a legal wrong or legal injury caused to the coun­cil, it is only the coun­cil which can sue but if a mem­ber of the coun­cil can show that for some suf­fi­cient rea­sons it is not pos­si­ble for the coun­cil to take action for chal­leng­ing the order of dis­so­lu­tion, he can file an appli­ca­tion for a writ to assert the right of the coun­cil and to redress the legal wrong or injury done to the coun­cil. We find that in the United States of Amer­ica also this excep­tion has been recog­nised and the strict rule of stand­ing has been lib­er­al­ized in the inter­est of jus­tice. In Bar­rows v. Jack­son, (1952) 346 US 249 : 97 Law Ed 1586, the defen­dant was sued for breach of a restric­tive covenant bind­ing the defen­dant not to sell his prop­erty to non-cancacians and claim­ing dam­ages. The defen­dant raised the plea that the judg­ment of the Court allow­ing dam­ages for breach of the covenant would con­sti­tute denial of the equal pro­tec­tion clause to non-cancacians, because a prospec­tive seller of restricted land would either refuse to sell to non-cancacians or else would require non-cancacians to pay a higher price to meet the dam­ages which the seller may have to pay. The argu­ment put for­ward in answer to this plea was that the defen­dant was not enti­tled to plead in defence the con­sti­tu­tional rights of non-Caucasians. But the Supreme Court of the United States neg­a­tived this argu­ment observ­ing: “We are faced with a unique sit­u­a­tion in which it is an action of the State Court which might result in a denial of con­sti­tu­tional rights and in which it would be dif­fi­cult if not impos­si­ble for the per­sons 33 whose rights are asserted to present their griev­ance before any Court”. Even in our own coun­try we have recog­nised this depar­ture from the strict rule of locus standi in cases where there has been a vio­la­tion of the con­sti­tu­tional or legal rights of per­sons who by rea­son of their socially or eco­nom­i­cally dis­ad­van­taged posi­tion are unable to approach the Court for judi­cial redress. We have in such cases per­mit­ted a mem­ber of the pub­lic to move the Court for enforce­ment of the con­sti­tu­tional or legal rights of such per­sons and judi­cial redress for the legal wrong or legal injury caused to them. Take for exam­ple, the deci­sion of this Court in Sunil Batra v. Delhi Admin­is­tra­tion, AIR 1980 SC 1579 where this Court accepted the habeas cor­pus peti­tion of a pris­oner com­plain­ing of bru­tal assault by a head war­den on another pris­oner. It may be inci­den­tally men­tioned and this is a point of some impor­tance in the area of judi­cial reme­dies – that in this case the Court broad­ened the scope of habeas cor­pus by mak­ing it avail­able to a pris­oner, not only for seek­ing his lib­erty, but also for the enforce­ment of a con­sti­tu­tional right to which he was law­fully enti­tled even in con­fine­ment. Sim­i­larly, in Dr. Upen­dra Baxi v.

 

State of U.P. (1981) 3 Scale 1137 when it was found that the inmates of the Pro­tec­tive Home at Agra were liv­ing in inhu­man and degrad­ing con­di­tions in bla­tant vio­la­tion of Art. 21 of the Con­sti­tu­tion and by rea­son of their socially and eco­nom­i­cally dis­ad­van­taged posi­tion, they were not in a posi­tion to move the Court for judi­cial redress, two law pro­fes­sors of the Delhi Uni­ver­sity addressed a let­ter, to this Court seek­ing enforce­ment of the con­sti­tu­tional right of the inmates under Art. 21 by improve­ment of the liv­ing con­di­tions in the Pro­tec­tive Home, so that the inmates can live with human dig­nity in the Pro­tec­tive Home. This Court treated the let­ter as a writ peti­tion and per­mit­ted the two law pro­fes­sors to main­tain an action for an appro­pri­ate writ for the pur­pose of enforc­ing the con­sti­tu­tional right of the inmates of the Pro­tec­tive Home and pro­vid­ing judi­cial redress to them. This Court has also enter­tained a let­ter addressed by a jour­nal­ist claim­ing relief against demo­li­tion of hut­ments of pave­ment dwellers by the Munic­i­pal Cor­po­ra­tion of Bom­bay and this let­ter has been treated as a Writ Peti­tion by a 34 Bench presided over by the Chief Jus­tice of India and interim relief has been granted to the pave­ment dwellers.

 

It may there­fore now be taken as well estab­lished that where a legal wrong or a legal injury is caused to a per­son or to a deter­mi­nate class of per­sons by rea­son of vio­la­tion of any con­sti­tu­tional or legal right or any bur­den is imposed in con­tra­ven­tion of any con­sti­tu­tional or legal pro­vi­sion or with­out author­ity of law or any such legal wrong or legal injury or ille­gal bur­den is threat­ened and such per­son or deter­mi­nate class of per­sons is by rea­son of poverty, help­less­ness or dis­abil­ity or socially or eco­nom­i­cally dis­ad­van­taged posi­tion, unable to approach the Court for relief, any mem­ber of the pub­lic can main­tain an appli­ca­tion for an appro­pri­ate direc­tion, order or writ in the High Court under Art. 226 and in case of breach of any fun­da­men­tal right of such per­son or deter­mi­nate class of per­sons, in this Court under Art. 32 seek­ing judi­cial redress for the legal wrong or injury caused to such per­son or deter­mi­nate class of per­sons. Where the weaker sec­tions of the com­mu­nity are con­cerned, such as under trial pris­on­ers lan­guish­ing in jails with­out a trial inmates of the Pro­tec­tive Home in Agra or Har­i­jan work­ers engaged in road con­struc­tion in Ajmer Dis­trict, who are liv­ing in poverty and des­ti­tu­tion, who are barely eking out a mis­er­able exis­tence with their sweat and toil, who are help­less vic­tims of an exploita­tive soci­ety and who do not have easy access to jus­tice, this Court will not insist on a reg­u­lar writ peti­tion to be filed by the pub­lic spir­ited indi­vid­ual espous­ing their cause and seek­ing relief for them. This court will read­ily respond even to a let­ter addressed by such indi­vid­ual act­ing pro bono pub­lico. It is true that there are rules made by this Court pre­scrib­ing the pro­ce­dure for mov­ing this Court for relief under Art. 32 and they require var­i­ous for­mal­i­ties to be gone through by a per­son seek­ing to approach this Court. But it must not be for­got­ten that pro­ce­dure is but a hand­maiden of jus­tice and the cause of jus­tice can never be allowed to be thwarted by any pro­ce­dural tech­ni­cal­i­ties. The Court would there­fore unhesi­tat­ingly and with­out the slight­est qualms of con­science case aside the tech­ni­cal rules of pro­ce­dure in the exer­cise of its 35 dis­pens­ing power and treat the let­ter of the pub­lic minded indi­vid­ual as a writ peti­tion and act upon it. Today a vast rev­o­lu­tion is tak­ing place in the judi­cial process; the the­atre of the law is fast chang­ing and the prob­lems of the poor are com­ing to the fore­front. The Court has to inno­vate new meth­ods and devise new strate­gies for the pur­pose of pro­vid­ing access to jus­tice to large masses of peo­ple who are denied their basic human rights and to whom free­dom and lib­erty have no mean­ing. The only way in which this can be done is by enter­tain­ing writ peti­tions and even let­ters from pub­lic spir­ited indi­vid­u­als seek­ing judi­cial redress for the ben­e­fit of per­sons who have suf­fered a legal wrong or a legal injury or whose con­sti­tu­tional or legal right has been vio­lated but who by rea­son of their poverty or socially or eco­nom­i­cally dis­ad­van­taged posi­tion are unable to approach the Court for relief. It is in this spirit that the Court has been enter­tain­ing let­ters for judi­cial redress and treat­ing them as writ peti­tions and we hope and trust that the High Courts of the coun­try will also adopt this proac­tive, goal-oriented approach. But we must has­ten to make it clear that the indi­vid­ual who moves the Court for judi­cial redress in cases of this kind must be act­ing bona fide with a view to vin­di­cat­ing the cause of jus­tice and if he is act­ing for per­sonal gain or pri­vate profit or out of polit­i­cal moti­va­tion or other oblique con­sid­er­a­tion, the Court should not allow itself to be activised at the instance of such per­son and must reject his appli­ca­tion at the thresh­old, whether it be in the form of a let­ter addressed to the Court or even in the form of a reg­u­lar writ peti­tion filed in Court. We may also point out that as a mat­ter of pru­dence and not as a rule of law, the Court may con­fine this strate­gic exer­cise of juris­dic­tion to cases where legal wrong or legal injury is caused to a deter­mi­nate class or group of per­sons or the con­sti­tu­tional or legal right of such deter­mi­nate class or group of per­sons is vio­lated and as far as pos­si­ble, not enter­tain cases of indi­vid­ual wrong or injury at the instance of a third party, where there is an effec­tive legal aid orga­ni­za­tion which can take care of such cases.

 

36 The types of cases which we have dealt with so far for the pur­pose of con­sid­er­ing the ques­tion of locus standi are those where there is a spe­cific legal injury either to the appli­cant or to some other per­son or per­sons for whose ben­e­fit the action is brought, aris­ing from vio­la­tion of some con­sti­tu­tional or legal right or legally pro­tected inter­est. What is com­plained of in these cases is a spe­cific legal injury suf­fered by a per­son of a deter­mi­nate class or group of per­sons. But there may be cases where the State or a pub­lic author­ity may act in vio­la­tion of a con­sti­tu­tional or statu­tory oblig­a­tion or fail to carry out such oblig­a­tion, result­ing in injury to pub­lic inter­est or what may con­ve­niently be termed as pub­lic injury as dis­tin­guished from pri­vate injury. Who would have stand­ing to com­plain against such act or omis­sion of the State or pub­lic author­ity? Can any mem­ber of the pub­lic sue for judi­cial redress? Or is the stand­ing lim­ited only to a cer­tain class of per­sons? Or there is no one who can com­plain and the pub­lic injury must go un-redressed.

 

To answer these ques­tions it is first of all nec­es­sary to under­stand what is the true pur­pose of the Judi­cial function.

 

This is what Prof. Theo states in his book on “Locus Standi and Judi­cial Review”: “Is the judi­cial func­tion pri­mar­ily aimed at pre­serv­ing legal order by con­fin­ing the leg­isla­tive and exec­u­tive organs of gov­ern­ment within their pow­ers in the inter­est of the pub­lic (Juris­dic­tion de droit objec­tif) or is it mainly directed towards the pro­tec­tion of pri­vate indi­vid­u­als by pre­vent­ing ille­gal encroach­ments on their indi­vid­ual rights (juris­dic­tion de droit sub­jec­tif)? The first con­tention rests on the the­ory that Courts are the final arbiters of what is legal and ille­gal ……… Require­ments of locus standi are there­fore nec­es­sary in this case since they merely impede the pur­pose of the func­tion as con­ceived here. On the other hand, where the prime aim of the judi­cial process is to pro­tect indi­vid­ual rights, its con­cern with the reg­u­lar­ity of law and admin­is­tra­tion is lim­ited to the extent that indi­vid­ual rights are infringed.” We would regard the first propo­si­tion as cor­rectly set­ting out the nature and pur­pose of the judi­cial func­tion, as it is essen­tial 37 to the main­te­nance of the rule of law that every organ of the State must act within the lim­its of its power and carry out the duty imposed upon it by the Con­sti­tu­tion or the law. If the State or any pub­lic author­ity acts beyond the scope of its power and thereby causes a spe­cific legal injury to a per­son or to a deter­mi­nate class or group of per­sons, it would be a case of pri­vate injury action­able in the man­ner dis­cussed in the pre­ced­ing para­graphs. So also if the duty is owed by the State or any pub­lic author­ity to a per­son or to a deter­mi­nate class or group of per­sons, it would give rise to a cor­re­spond­ing right in such per­son or deter­mi­nate class or group of per­sons and they would be enti­tled to main­tain an action for judi­cial redress. But if no spe­cific legal injury is caused to a per­son or to a deter­mi­nate class or group of per­sons by the act or omis­sion of the State or any pub­lic author­ity and the injury is caused only to pub­lic inter­est, the ques­tion arises as to who can main­tain an action for vin­di­cat­ing the rule of law and set­ting aside the unlaw­ful action or enforc­ing the per­for­mance of the pub­lic duty.

 

If no one can main­tain an action for redress of such pub­lic wrong or pub­lic injury, it would be dis­as­trous for the rule of law, for it would be open to the State or a pub­lic author­ity to act with impunity beyond the scope of its power or in breach of a pub­lic duty owed by it. The Courts can­not coun­te­nance such a sit­u­a­tion where the obser­vance of the law is left to the sweet will of the author­ity bound by it, with­out any redress if the law is con­tra­vened. The view has there­fore been taken by the Courts in many deci­sions that when­ever there is a pub­lic wrong or pub­lic injury caused by an act or omis­sion of the State or a pub­lic author­ity which is con­trary to the Con­sti­tu­tion or the law, any mem­ber of the pub­lic act­ing bonafide and hav­ing suf­fi­cient inter­est can main­tain an action for redres­sal of such pub­lic wrong or pub­lic injury. The strict rule of stand­ing which insists that only a per­son who has suf­fered a spe­cific legal injury can main­tain an action for judi­cial redress is relaxed and a broad rule is evolved which gives stand­ing to any mem­ber of the pub­lic who is not a mere busy-body or a med­dle­some inter­loper but who has suf­fi­cient inter­est in the pro­ceed­ing. There can be no doubt that the risk of legal action against the State or a pub­lic 38 author­ity by any cit­i­zen will induce the State or such pub­lic author­ity to act with greater respon­si­bil­ity and care thereby improv­ing the admin­is­tra­tion of jus­tice. Lord Diplock rightly said in Rex v. Inland Rev­enue Commrs. (1981) 2 WLR 722 at p. 740: “It would, in my view, be a grave lacuna in our sys­tem of pub­lic law if a pres­sure group, like the fed­er­a­tion, or even a sin­gle public-spirited tax­payer, were pre­vented by out-dated tech­ni­cal rules of locus standi from bring­ing the mat­ter to the atten­tion of the Court to vin­di­cate the rule of law and get the unlaw­ful con­duct stopped……. It is not, in my view, a suf­fi­cient answer to say that judi­cial review of the actions of offi­cers or depart­ments of cen­tral gov­ern­ment is unnec­es­sary because they are account­able to Par­lia­ment for the way in which they carry out their func­tions. They are account­able to Par­lia­ment for what they do so far as regards effi­ciency and pol­icy, and of that Par­lia­ment is the only judge; they are respon­si­ble to a Court of Jus­tice for the law­ful­ness of what they do, and of that the Court is the only judge.” The broad­en­ing of the rule of locus standi has been largely respon­si­ble for the devel­op­ment of pub­lic law, because it is only the avail­abil­ity of judi­cial rem­edy for enforce­ment which invests law with mean­ing and pur­pose or else the law would remain merely a paper parch­ment, a teas­ing illu­sion and a promise of unre­al­ity. It is only by lib­er­al­is­ing the rule of locus standi that it is pos­si­ble to effec­tively police the cor­ri­dors of pow­ers and pre­vent vio­la­tions of law. It was pointed out by Schwartz and H.W.R. Wade in their book on “Legal Con­trol of Gov­ern­ment” at page 354: “Restric­tive rules about stand­ing are in gen­eral inim­i­cal to a healthy sys­tem of admin­is­tra­tive law. If a plain­tiff with a good case is turned away, merely because he is not suf­fi­ciently affected per­son­ally, that means that some gov­ern­ment agency is left free to vio­late the law, and that is con­trary to the pub­lic inter­est. Lit­i­gants are unlikely to expend their time and money unless they have some real inter­est at stake. In the rare cases 39 where they wish to sue merely out of pub­lic spirit, why should they be dis­cour­aged?” It is also nec­es­sary to point out that if no one can have stand­ing to main­tain an action for judi­cial redress in respect of a pub­lic wrong or pub­lic injury, not only will the cause of legal­ity suf­fer but the peo­ple not hav­ing any judi­cial rem­edy to redress such pub­lic wrong or pub­lic injury may turn to the street and in that process, the rule of law will be seri­ously impaired. It is absolutely essen­tial that the rule of law must wean the peo­ple away from the law­less street and win them for the court of law.

 

There is also another rea­son why the rule of locus standi needs to be lib­er­alised. Today we find that law is being increas­ingly used as a device of organ­ised social action for the pur­pose of bring­ing about socio-economic change. The task of national recon­struc­tion upon which we are engaged has brought about enor­mous increase in devel­op­men­tal activ­i­ties and law is being uti­lized for the pur­pose of devel­op­ment, social and eco­nomic. It is cre­at­ing more and more a new cat­e­gory of rights in favour of large sec­tions of peo­ple and impos­ing a new cat­e­gory of duties on the State and the pub­lic offi­cials with a view to reach­ing social jus­tice to the com­mon man. Indi­vid­ual rights and duties are giv­ing place to meta-individual, col­lec­tive, social rights and duties of classes or groups of per­sons. This is not to say that indi­vid­ual rights have ceased to have a vital place in our soci­ety but it is recog­nised that these rights are prac­ti­ca­bly mean­ing­less in today’s set­ting unless accom­pa­nied by the social rights nec­es­sary to make them effec­tive and really acces­si­ble to all. The new social and eco­nomic rights which are sought to be cre­ated in pur­suance of the Direc­tive prin­ci­ples of State Pol­icy essen­tially require active inter­ven­tion of the State and other pub­lic author­i­ties. Amongst these social and eco­nomic rights are free­dom from indi­gency, igno­rance and dis­crim­i­na­tion as well as the right to a healthy envi­ron­ment, to social secu­rity and to pro­tec­tion from finan­cial com­mer­cial, cor­po­rate or even gov­ern­men­tal oppres­sion. More and more fre­quently the con­fer­ment of these socio-economic rights and impo­si­tion of pub­lic duties on the State and other author­i­ties for 40 tak­ing pos­i­tive action gen­er­ates sit­u­a­tions in which sin­gle human action can be ben­e­fi­cial or prej­u­di­cial to a large num­ber of peo­ple, thus mak­ing entirely inad­e­quate the tra­di­tional scheme of lit­i­ga­tion as merely a two-party affairs. For exam­ple, the dis­charge of afflu­ent in a lake or river may harm all who want to enjoy its clean water; emis­sion of nox­ious gas may cause injury to large num­ber of peo­ple who inhale it along with the air, defec­tive or unhealthy pack­ag­ing may cause dam­age to all con­sumers of goods and so ille­gal rais­ing of rail­way or bus fares may affect the entire pub­lic which wants to use the rail­way or bus as a means of trans­port. In cases of this kind it would not be pos­si­ble to say that any spe­cific legal injury is caused to an indi­vid­ual or to a deter­mi­nate class or group of individuals.

 

What results in such cases is pub­lic injury and it is one of the char­ac­ter­is­tics of pub­lic injury that the act or acts com­plained of can­not nec­es­sar­ily be shown to affect the rights of deter­mi­nate or iden­ti­fi­able class or group of per­sons: pub­lic injury is an injury to an inde­ter­mi­nate class of per­sons. In these cases the duty which is breached giv­ing rise to the injury is owed by the State or a pub­lic author­ity not to any spe­cific or deter­mi­nate class or group of per­sons, but to the gen­eral pub­lic. In other words, the duty is one which is not cor­rel­a­tive to any indi­vid­ual rights. Now if breach of such pub­lic duty were allowed to go unre­dressed because there is no one who has received a spe­cific legal injury or who was enti­tled to par­tic­i­pate in the pro­ceed­ings per­tain­ing to the deci­sion relat­ing to such pub­lic duty, the fail­ure to per­form such pub­lic duty would go unchecked and it would pro­mote dis­re­spect for the rule of law. It would also open the door for cor­rup­tion and inef­fi­ciency because there would be no check on exer­cise of pub­lic power except what may be pro­vided by the polit­i­cal machin­ery, which at best would be able to exer­cise only a lim­ited con­trol and at worst, might become a par­tic­i­pant in mis­use or abuse of power.

 

It would also make the new social col­lec­tive rights and inter­ests cre­ated for the ben­e­fit of the deprived sec­tions of the com­mu­nity mean­ing­less and ineffectual.

 

41 Now, as pointed out by Cap­pel­latti in Vol III of his clas­sic work on “Access to Jus­tice” at page 520, “The tra­di­tional doc­trine of stand­ing (legit­i­ma­tio and causam) attrib­utes the right to sue either to the pri­vate indi­vid­ual who ‘holds’ the right which is in need of judi­cial pro­tec­tion or in case of pub­lic rights, to the State itself, which sues in courts through its organs”. The prin­ci­ple under­ly­ing the tra­di­tional rule of stand­ing is that only the holder of the right can sue and it is there­fore, held in many juris­dic­tions that since the State rep­re­sent­ing the pub­lic is the holder of the pub­lic rights, it alone can sue for redress of pub­lic injury or vin­di­ca­tion of pub­lic inter­est. It is on this prin­ci­ple that in the United King­dom, the Attorney-General is entrusted with the func­tion of enforc­ing due obser­vance of the law. The Attorney-General rep­re­sents the pub­lic inter­est in its entirety and as pointed out by S.A. de Smith in “Judi­cial review of Admin­is­tra­tive Action” (Third edi­tion) at page 403; “the gen­eral pub­lic has an inter­est in see­ing that the law is obeyed and for this pur­pose, the Attor­ney Gen­eral rep­re­sents the pub­lic.” There is, there­fore, a machin­ery in the United King­dom for judi­cial redress for pub­lic injury and pro­tec­tion of social, col­lec­tive, what Cap­pel­letti calls ‘dif­fuse’ rights and inter­ests. We have no such machin­ery here. We have undoubt­edly an Attor­ney Gen­eral as also Advo­cates Gen­eral in the States, but they do not rep­re­sent the pub­lic inter­est gen­er­ally. They do so in a very lim­ited field; see Sec­tions 91 and 92 of the Civil Pro­ce­dure Code. But, even if we had a pro­vi­sion empow­er­ing the Attor­ney Gen­eral of the Advo­cate Gen­eral to take action for vin­di­cat­ing pub­lic inter­est, I doubt very much whether it would be effec­tive. The Attor­ney Gen­eral or the Advo­cate Gen­eral would be too depen­dent upon the polit­i­cal branches of Gov­ern­ment to act as an advo­cate against abuses which are fre­quently gen­er­ated at least tol­er­ated by polit­i­cal and admin­is­tra­tive bod­ies. Be that as it may, the fact remains that we have no such insti­tu­tion in our coun­try and we have there­fore to lib­er­alise the rule of stand­ing in order to pro­vide judi­cial redress for pub­lic injury aris­ing from breach of pub­lic duty or from other vio­la­tion of the Con­sti­tu­tion or the law.

 

If pub­lic duties are to be enforced and social col­lec­tive ‘dif­fused’ rights and inter­ests are to be pro­tected, we have to uti­lize the 42 ini­tia­tive and zeal of public-minded per­sons and organ­i­sa­tions by allow­ing them to move the court and act for a gen­eral or group inter­est, even though, they may not be directly injured in their own rights. It is for this rea­son that in pub­lic inter­est lit­i­ga­tion – lit­i­ga­tion under­taken for the pur­pose of redress­ing pub­lic injury, enforc­ing pub­lic duty, pro­tect­ing social, col­lec­tive, ‘dif­fused’ rights and inter­ests or vin­di­cat­ing pub­lic inter­est, any cit­i­zen who is act­ing bona fide and who has suf­fi­cient inter­est has to be accorded stand­ing. What is suf­fi­cient inter­est to give stand­ing to a mem­ber of the pub­lic would have to be deter­mined by the Court in each indi­vid­ual case. It is not pos­si­ble for the Court to lay down any hard and fast rule or any strait-jacket for­mula for the pur­pose of defin­ing or delim­it­ing ‘suf­fi­cient inter­est’, it has nec­es­sar­ily to be left to the dis­cre­tion of the Court. the rea­son is that in a mod­ern com­plex soci­ety which is seek­ing to bring about trans­for­ma­tion of its social and eco­nomic struc­ture and try­ing to reach social jus­tice to the vul­ner­a­ble sec­tions of the peo­ple by cre­at­ing new social, col­lec­tive ‘dif­fuse’ rights and inter­ests and impos­ing new pub­lic duties on the State and other pub­lic author­i­ties, infi­nite num­ber of sit­u­a­tions are bound to arise which can­not be impris­oned in a rigid mould or a pro­crustean for­mula. The Judge who has the cor­rect social per­spec­tive and who is on the same wave-length as the Con­sti­tu­tion will be able to decide, with­out any dif­fi­culty and in con­so­nance with the con­sti­tu­tional objec­tives, whether a mem­ber of the pub­lic mov­ing the court in a par­tic­u­lar case has suf­fi­cient inter­est to ini­ti­ate the action.

 

It is inter­est­ing to note that the con­cept of pub­lic inter­est lit­i­ga­tion had its ori­gin in the United States and over the years, it has passed through var­i­ous vicis­si­tudes in the coun­try of its ori­gin. We do not pro­pose to enu­mer­ate or exam­ine var­i­ous deci­sions given by the Supreme Court of the United States from time to time in regard to stand­ing in pub­lic inter­est lit­i­ga­tion, for no use­ful pur­pose would be served by such exer­cise. Suf­fice it to state in that coun­try, the strict require­ment of legal inter­est has been watered down. Jus­tice Dou­glas said in Asso­ci­a­tion of Data Pro­cess­ing Ser­vice v. William B. Camp (1970) 397 US 150 : 43 25 Law Ed 2d 184 that “the legal inter­est tests goes to the merits.

 

The ques­tion of stand­ing is dif­fer­ent”. Sim­i­larly Jus­tice Bren­nan. Cit­ing Flats, observed that “the ques­tion is whether the per­son whose stand­ing is chal­lenged is a proper party to request an adju­di­ca­tion of a par­tic­u­lar issue and not…… whether the plain­tiff had a legally pro­tected inter­est which the defendant’s action invaded” Ital­ics (herein under­line) sup­plied). This view also found expres­sion in Office of Com­mu­ni­ca­tion of United Church of Christ v. FCC 123 US App DC 328 where the stand­ing of tele­vi­sion view­ers was upheld with the fol­low­ing obser­va­tions: Since the con­cept of stand­ing is “one designed to assure that only one with a gen­uine and legit­i­mate inter­est can par­tic­i­pate in a pro­ceed­ing, we can see no rea­son to exclude those with such an obvi­ous and acute con­cern as the lis­ten­ing audi­ence.” Vide arti­cle on “Evolv­ing Trends in Locus Standi; Mod­els For Decision-Making” by D.Y. Chan­dra­chud. But of late, there has been a slight regres­sion in this dynamic approach.

 

See United States v. William B. Richard­son, (1974) 418 US 166 and Warth v. Seldin, (1974) 422 US 490, where the Supreme Court of United States seems to have recoiled a title against expan­sion of its judi­cial power.

 

So far as the United King­dom is con­cerned, there have been remark­able devel­op­ments in this area in recent times largely due to the dynamic activism of Lord Den­ning. The Mc.

 

Whirter case and the three well known Black­burn cases clearly estab­lish that any mem­ber of the pub­lic hav­ing suf­fi­cient inter­est can main­tain an action for enforc­ing a pub­lic duty against a statu­tory or pub­lic author­ity. We need not make a detailed ref­er­ence to all these cases but it will be suf­fi­cient if we refer to the Mc. Whirter case and one of the three Black­burn cases. The Mc Whirter case is reported in Attor­ney Gen­eral v. Inde­pen­dent Broad­cast­ing Author­ity (1973) 1 All ER 689. This was an action by Mc Whirter for injunc­tion against the Broad­cast­ing Author­ity which was threat­en­ing to show a film which did not com­ply with the statu­tory require­ments and the show­ing of which would there­fore be ille­gal. Lord Den­ning con­sid­ered the ques­tion whether Mc Whirter had locus standi to bring the action when 44 leave to bring a rela­tor action was refused by the Attor­ney Gen­eral, and answer­ing this ques­tion in the affir­ma­tive, he said: “We live in an age when Par­lia­ment has placed statu­tory duties on gov­ern­ment depart­ments and pub­lic author­i­ties for the ben­e­fit of the pub­lic – but has pro­vided no rem­edy for the breach of them. If a gov­ern­ment depart­ment or a pub­lic author­ity trans­gresses the law laid down by Par­lia­ment, or threat­ens to trans­gress it, can a mem­ber of the pub­lic come to the Court and draw the mat­ter to its atten­tion…. I am of the opin­ion that, in the last resort, if the Attor­ney Gen­eral refuses leave in a proper case or improp­erly or unrea­son­ably delays in giv­ing leave, or his machin­ery works too slowly, then a mem­ber of the pub­lic who has suf­fi­cient inter­est, can him­self apply to the Court itself.” Lord Den­ning held that Mc Whirter had suf­fi­cient inter­est to bring the action since he had a tele­vi­sion set for which he had paid licence fee and his sus­cep­ti­bil­ity would be offended like that of many oth­ers watch­ing tele­vi­sion if the film was shown in breach of the statu­tory require­ments. It may be noticed that in this case the duty which was sought to be enforced against the Broad­cast­ing Author­ity was one which the Broad­cast­ing Author­ity owed to the gen­eral pub­lic and not to any spe­cific indi­vid­ual or class or group of indi­vid­u­als. The same prin­ci­ple was applied by Lord Den­ning in Reg v. Greater Lon­don Coun­cil, Ex parte Black­burn, (1976) 3 All ER 184 to accord stand­ing to Black­burn to main­tain an action for an order of pro­hi­bi­tion pre­vent­ing the greater Lon­don Coun­cil from allow­ing, con­trary to law, the exhi­bi­tion of porno­graphic films. Here again the duty owned by the Greater Lon­don Coun­cil was to the gen­eral pub­lic and not to any spe­cific or deter­mi­nate class or group of per­sons and there was no one who could claiom that a spe­cific legal injury was caused to him by the exhi­bi­tion of porno­graphic films. But even so Lord Den­ning held that Black­burn was enti­tled to main­tain an action because he had suf­fi­cient inter­est, he was a cit­i­zen of Lon­don, his wife was a rate payer and he had chil­dren who might be harmed by the exhi­bi­tion of porno­graphic films. The learned Mas­ter of the Rolls empha­sized that if Black­burn had no suf­fi­cient inter­est, no other cit­i­zen had, and in that event no one would be able to bring an action for enforc­ing the law and the trans­gres­sion of the law would con­tinue unabated. The prin­ci­ple on 45 which the learned Mas­ter of the Rolls pro­ceeded was for­mu­lated by him in these words: “I regard it as a mat­ter of high con­sti­tu­tional prin­ci­ple, that if there is good ground for sup­pos­ing that a gov­ern­ment depart­ment or a pub­lic author­ity is trans­gress­ing the law, or is about to trans­gress it, in a way which offends or injures thou­sands of his Majesty’s sub­jects, then any­one of those offended or injured can draw it to the atten­tion of the courts of law and seek to have the law enforced, and the courts in their dis­cre­tion can grant what­ever rem­edy is appro­pri­ate.” The House of Lords, of course, in Gouriet v. UPW 1978 AC 482 took the view that the Attor­ney Gen­eral alone can sue for enforc­ing the obser­vance of the law and if he refuses to give his con­sent to a rela­tor action, such refusal was not review­able by the courts and with­out such con­sent, a mem­ber of the pub­lic could not main­tain his action. We do not think it nec­es­sary to exam­ine this deci­sion because it has no bind­ing effect upon us. But we may point out that this deci­sion has been severely crit­i­cized by jurists in Eng­land and else­where. It is clearly erro­neous and shows the high water mark of abdi­ca­tion of judi­cial power which is likely to stul­tify the devel­op­ment of pub­lic law in the United King­dom. There is how­ever one dis­tin­guish­ing fea­ture which we must point out, namely, that the action in that case was a rela­tor action and not appli­ca­tion for a writ.

 

We would, there­fore, hold that any mem­ber of the pub­lic hav­ing suf­fi­cient inter­est can main­tain an action for judi­cial redress for pub­lic injury aris­ing from breach of pub­lic duty or from vio­la­tion of some pro­vi­sion of the Con­sti­tu­tion or the law and seek enforce­ment of such pub­lic duty and obser­vance of such con­sti­tu­tional or legal provision.

 

This is absolutely essen­tial for main­tain­ing the rule of law, fur­ther­ing the cause of jus­tice and accel­er­at­ing the pace of real­iza­tion of the con­sti­tu­tional objec­tive “Law, as pointed out by Jus­tice Krishna Iyer in Fer­til­izer Cor­po­ra­tion Kam­gar Union v. Union of India, AIR 1981 SC 344 “is a social audi­tor and this audit func­tion can be put into action when some one with real pub­lic inter­est ignites the juris­dic­tion. A fear is some­times expressed that if we keep the door wide open for any mem­ber of the pub­lic to enter the por­tals of the Court to enforce pub­lic 46 duty or to vin­di­cate pub­lic inter­est, the Court will be flooded with lit­i­ga­tion. But this fear is totally unfounded and the argu­ment based upon it is answered com­pletely by the Aus­tralian Law Reforms Com­mis­sion in the fol­low­ing words: “The idle and whim­si­cal plain­tiff, a dilet­tante who lit­i­gates for a lark, is a spec­tre which haunts the legal lit­er­a­ture, not the court room (Prof. K. E. Scott: “Stand­ing in the Supreme Court: A Func­tional Analy­sis” (1973) 86) A major expressed rea­son for lim­it­ing stand­ing rights is fear of a spate of actions brought by busy­bod­ies which will unduly extend the resources of the courts. No argu­ment is eas­ier put, none more dif­fi­cult to rebut. Even if the fear be jus­ti­fied it does not fol­low that present restric­tions should remain. If proper claims exist it may be nec­es­sary to pro­vide recourses for their deter­mi­na­tion. How­ever, the issue must be con­sid­ered. ……. Over recent years suc­ces­sive deci­sions of the United States Supreme Court have lib­er­alised stand­ing so as to afford a hear­ing to any per­son with a real inter­est in the rel­e­vant con­tro­versy. Sur­vey­ing the result in 1973 Pro­fes­sor Scott com­mended: (Op Cit, 673) ‘When the flood­gates of lit­i­ga­tion are opened to some new class of con­tro­versy by a deci­sion it is notable how rarely one can dis­cern the flood that the dis­sentors feared.

 

Pro­fes­sor Scott went on to point out that the lib­er­alised stand­ing rules had caused no sig­nif­i­cant increase in the num­ber of actions brought, argu­ing that par­ties will not lit­i­gate at con­sid­er­able per­sonal cost unless they have a real inter­est in a mat­ter.” We wholly endorse these remarks of the Aus­tralian Law Reforms Com­mis­sion. We may add, with Jus­tice Krishna Iyer: “In a soci­ety where free­doms suf­fer from atro­phy, and activism is essen­tial for par­tic­i­pa­tive pub­lic jus­tice, some risks have to be taken and more oppor­tu­ni­ties opened for the pub­lic minded cit­i­zen to rely on the legal process and not be repelled from it by nar­row pedantry now sur­round­ing locus standi.” It is also inter­est­ing to note that in India, as 47 in other Com­mon­wealth coun­tries, the strict rule of stand­ing does not apply to a writ of quo war­ranto or a rate payer’s action against a munic­i­pal­ity, but there is no evi­dence that this has let loose the flood gates of lit­i­ga­tion in these areas. The time, money and other incon­ve­niences involved in lit­i­gat­ing a case act as suf­fi­cient deter­rent for most of us to take recourse to legal action vide arti­cle of Dr. S.N.

 

Jain on “Stand­ing and Pub­lic Inter­est Lit­i­ga­tion.” Before we part with this gen­eral dis­cus­sion in regard to locus standi, there is one point we would like to empha­sise and it is that cases may arise where there is undoubt­edly pub­lic injury by the act or omis­sion of the State or a pub­lic author­ity but such act or omis­sion also causes a spe­cific legal injury to an indi­vid­ual or to a spe­cific class or group of indi­vid­u­als. In such cases, a mem­ber of the pub­lic hav­ing suf­fi­cient inter­est can cer­tainly main­tain an action chal­leng­ing the legal­ity of such act or omis­sion, but if the per­son or spe­cific class or group of per­sons who are pri­mar­ily injured as a result of such act or omis­sion, do not wish to claim any relief and accept such act or omis­sion will­ingly and with­out protest, the mem­ber of the pub­lic who com­plains of a sec­ondary pub­lic injury can­not main­tain the action, for the effect of enter­tain­ing the action at the instance of such mem­ber of the pub­lic would be to foist a relief on the per­son or spe­cific class or group of per­sons pri­mar­ily injured, which they do not want.” The Hon’ble Supreme Court has held in Sub­hash Kumar v. State of Bihar and oth­ers, AIR 1991 SC 420 that recourse to pub­lic inter­est lit­i­ga­tion should be taken up by a per­son gen­uinely inter­ested in pro­tect­ing soci­ety and the same can­not be invoked by per­son or body of per­sons to sat­isfy his or its per­sonal grudge and enmity. Their Lord­ships have held as under:- “Arti­cle 32 is designed for the enforce­ment of Fun­da­men­tal Rights of a cit­i­zen by the Apex Court. It pro­vides for an extra­or­di­nary pro­ce­dure to safe­guard the Fun­da­men­tal rights of a cit­i­zen. Right to live is a fun­da­men­tal right under Art.

 

21 of the Con­sti­tu­tion and it includes the right of enjoy­ment of pol­lu­tion free water and air for full enjoy­ment of life. If any­thing endan­gers of impairs that qual­ity of life in dero­ga­tion of laws, a cit­i­zen has right to have recourse to Art. 32 of the Con­sti­tu­tion 48 for remov­ing the pol­lu­tion of water or air which may be deter­mined to the qual­ity of life. A peti­tion under Art. 32 for the pre­ven­tion of pol­lu­tion is main­tain­able at the instance of affected per­sons or even by a group of social work­ers or jour­nal­ists. But recourse to pro­ceed­ings under Art. 32 of the Con­sti­tu­tion should be taken by a per­son gen­uinely inter­ested in the pro­tec­tion of soci­ety on behalf of the com­mu­nity. Pub­lic inter­est lit­i­ga­tion can­not be invoked by a per­son or body of per­sons to sat­isfy his or its per­sonal grudge and enmity. If such peti­tions under Arti­cle 32, are enter­tained it would amount to abuse of process of the Court, pre­vent­ing speedy rem­edy to other gen­uine peti­tion­ers from this Court. Per­sonal inter­est can­not be enforced through the process of this Court under Art. 32 of the Con­sti­tu­tion in the garb of a pub­lic inter­est lit­i­ga­tion. Pub­lic inter­est lit­i­ga­tion con­tem­plates legal pro­ceed­ing for vin­di­ca­tion or enforce­ment of fun­da­men­tal rights of a group of per­sons or com­mu­nity which are not able to enforce their fun­da­men­tal rights on account of their inca­pac­ity, poverty or igno­rance of law. A per­son invok­ing the juris­dic­tion of this Court under Art.

 

32 must approach this Court for the vin­di­ca­tion of the fun­da­men­tal rights of affected per­sons and not for the pur­pose of vin­di­ca­tion of his per­sonal grudge or enmity. It is duty of this Court to dis­cour­age such peti­tions and to ensure that the course of jus­tice is not obstructed or pol­luted by unscrupu­lous lit­i­gants by invok­ing the extra­or­di­nary juris­dic­tion of this Court for per­sonal mattes under the garb of the pub­lic inter­est lit­i­ga­tion, see Band­hua Mukti Morch v. Union of India, (1984) 2 SCC 295 at p 331 : (AIR 1987 SC 1109); Ramsha­ran Autyanuprasi v. Union of India (1989) Supp 117 SCC 251 and Chhetriya Par­dushan Mukti Sang­harsh Samiti v. State of U.P., (1990) 4 SCC 449.” The Hon’ble Supreme Court in The Janta Dal v. H.S. Chowd­hary and oth­ers, AIR 1993 SC 892 held that in defin­ing the rule of locus standi no rigid test can be applied since broad con­tours are still devel­op­ing. Their lord­ships have held as under:- “Though it is imper­a­tive to lay down clear guide­lines and propo­si­tions; and out­line the cor­rect para­me­ters for enter­tain­ing a 49 Pub­lic Inter­est Lit­i­ga­tion – par­tic­u­larly on the issue of locus standi yet no hard and fast rules have yet been for­mu­lated and no com­pre­hen­sive guide­lines have been evolved. There is also one view that such adum­bra­tion is not pos­si­ble and it would not be expe­di­ent to lay down any gen­eral rule which would gov­ern all cases under all circumstances.

 

Be that as it is may, it need­less to empha­sise that the require­ment of locus standi of a party to a lit­i­ga­tion is manda­tory; because the legal capac­ity of the party to any lit­i­ga­tion whether in pri­vate or pub­lic action in rela­tion to any spe­cific rem­edy sought for has to be pri­mar­ily ascer­tained at the threshold.

 

The tra­di­tional syn­tax of law in regard to locus standi for a spe­cific judi­cial redress, sought by an indi­vid­ual per­son or deter­mi­nate class or iden­ti­fi­able group of per­sons, is avail­able only to that per­son or class or group of per­sons who has or have suf­fered a legal injury by rea­sons of vio­la­tion of his or their legal right or a right legally pro­tected, the inva­sion of which gives rise to action­abil­ity within the cat­e­gories of law. In a pri­vate action, the lit­i­ga­tion is bipo­lar; two opposed par­ties and locked in a con­fronta­tional con­tro­versy which per­tains to the deter­mi­na­tion of the legal con­se­quences of past events unlike in pub­lic action. The char­ac­ter of such lit­i­ga­tion is essen­tially that of vin­di­cat­ing pri­vate rights, pro­ceed­ings being brought by the per­sons in whom the right per­son­ally inhere or their legally con­sti­tuted rep­re­sen­ta­tives who are thus obvi­ously most com­pe­tent to com­mence the litigation.

 

In con­trast, the strict rule of locus standi applic­a­ble to pri­vate lit­i­ga­tion is relaxed and a broad rule is evolved which gives the right of locus standi to any mem­ber of the pub­lic act­ing bona fide and hav­ing suf­fi­cient inter­est in insti­tut­ing an action for redres­sal of pub­lic wrong or pub­lic injury, but who is not a mere busy body or a med­dle­some inter­loper, since the dom­i­nant object of PIL is to ensure obser­vance of the pro­vi­sions of the Con­sti­tu­tion or the law which can be best achieved to advance the cause of com­mu­nity or dis­ad­van­taged groups and indi­vid­u­als or pub­lic inter­est by per­mit­ting any per­son, hav­ing no per­sonal gain or pri­vate moti­va­tion or any other oblique con­sid­er­a­tion but act­ing bona fide and hav­ing suf­fi­cient inter­est in main­tain­ing an action for judi­cial redress for pub­lic injury to put the judi­cial machin­ery 50 in motion like actio pop­u­laris of Roman Law whereby any cit­i­zen could bring such an action in respect of a pub­lic delict.

 

From the above pro­nounce­ments, it emerges that this sum­mit Court has widely enlarged the scope of PIL by relax­ing and lib­er­al­is­ing the rule of stand­ing by treat­ing let­ters or peti­tions sent by any per­son or asso­ci­a­tion com­plain­ing vio­la­tion of any fun­da­men­tal rights and also enter­tain­ing Writ peti­tions filed under Art. 32 of the Con­sti­tu­tion by pub­lic spir­ited and pol­icy ori­ented activist per­sons or jour­nal­ists or of any organ­i­sa­tion reject­ing seri­ous chal­lenges made with regard to the main­tain­abil­ity of such peti­tions ren­dered many vir­tu­osic pro­nounce­ments and issued man­i­fold direc­tions to the Cen­tral and the State Gov­ern­ments, all local and other author­i­ties within the ter­ri­tory of India or under the con­trol of the Gov­ern­ment of India for the bet­ter­ment of the pub­lic at large in many fields in con­for­mity with con­sti­tu­tional pre­scrip­tions of what con­sti­tutes the good life in a socially just democ­racy. The newly invented propo­si­tion of law laid down by many learned Judges of this Court in the arena of PIL irrefutably and man­i­festly estab­lish that our dynamic activism in the field of PIL is by no means less than those of other activist judi­cial sys­tems in other part of the world.

 

It may not be out of place to men­tion here that there may be numer­ous cir­cum­stances jus­ti­fy­ing the enter­tain­ing of Pub­lic Inter­est Lit­i­ga­tion but we can­not obvi­ously enu­mer­ate an exhaus­tive list of all such situations.

 

It is thus clear that only a per­son –act­ing bona fide and hav­ing suf­fi­cient inter­est in the pro­ceed­ing of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suf­fer­ing from vio­la­tion of their fun­da­men­tal rights, but not a per­son for per­sonal gain or pri­vate profit or polit­i­cal motive or any oblique con­sid­er­a­tion. Sim­i­larly, a vex­a­tious peti­tion under the colour of PIL brought before the Court for vin­di­cat­ing any per­sonal griev­ance, deserves rejec­tion at the threshold.

 

The Hon’ble Supreme Court has held in Dr. Meera Massey (Mrs.) ver­sus Dr. S.R. Mehro­tra and Oth­ers, (1998) 3 SCC 88 that the Pro­fes­sor had the locus standi to assail the appoint­ments of the Research Asso­ciates who are Eval­u­a­tors 51 and Lec­tur­ers by the Exec­u­tive Coun­cil in con­tra­ven­tion of the Ordi­nance of the Uni­ver­sity. Their Lord­ships have held as under:- “Hav­ing con­sid­ered the sub­mis­sions, we do not find any of the obser­va­tions made here­in­be­fore is applic­a­ble in the present case. We find Dr. Mehro­tra has filed the writ peti­tion being con­cerned with the anom­alies and ille­gal­i­ties in the pro­ce­dure adopted by the Uni­ver­sity in mak­ing selec­tion and reg­u­lar­is­ing the var­i­ous posts in con­tra­dic­tion to the Acts, Statute and Ordi­nances. He was aware fully of all what was hap­pen­ing with full grip of all the mate­ri­als. Facts reveal he was gen­uinely con­cerned to rec­tify the wrongs with­out any per­sonal ani­mos­ity against any­one. His feel­ings were bona fide, being pro­fes­sor of His­tory in the same Uni­ver­sity. He had all the details, fully equipped with facts and the law per­tain­ing to the Uni­ver­sity. It was not for any per­sonal gain. It was nei­ther polit­i­cally moti­vated nor for pub­lic­ity. The golden key for pub­lic inter­est lit­i­ga­tion was deliv­ered in the land mark deci­sion of this Court in, S.P. Gupta’s case, 1981 (Suppl) SCC 87 : (AIR 1982 SC 149). This was devised for increas­ing cit­i­zens par­tic­i­pa­tion in the judi­cial process for mak­ing access to the judi­cial deliv­ery sys­tem to such who could not oth­er­wise reach Court for var­i­ous rea­sons. But it is also true, since then this Court repeat­edly has been cau­tion­ing its mis­use lay­ing down restric­tions to scut­tle out unde­sir­able per­sons or body. It is in this con­text the above obser­va­tions were made by this Court as relied by the appel­lants but that very author­ity accords approval for fil­ing such pub­lic inter­est lit­i­ga­tion. After hav­ing elab­o­rately explained the con­cept of PIL, the learned Judge held that: (SCC p. 218, para 23) “… any mem­ber of the pub­lic hav­ing suf­fi­cient inter­est can main­tain an action for judi­cial redress for pub­lic injury aris­ing from breach of pub­lic duty or from vio­la­tion of some pro­vi­sion of the Con­sti­tu­tion or the law and seek enforce­ment of such pub­lic duty and obser­vance of such con­sti­tu­tional or legal pro­vi­sion. This absolutely essen­tial for main­tain­ing the rule of law, fur­ther­ing the cause of jus­tice and accel­er­at­ing the pace of real­iza­tion of the con­sti­tu­tional objec­tives.” 52 The Hon’ble Supreme Court has held in “J. Jay­alalitha ver­sus Gov­ern­ment of Tamil Nadu and Oth­ers, (1999) 1 SCC 53 that any tax­payer in the State has a right to chal­lenge the mis­use or improper use of any pub­lic prop­erty by any­one includ­ing the polit­i­cal party in power, where large sums of tax­pay­ers’ money had been spent to build such pub­lic prop­erty. Their Lord­ships have held as under:- “We put this sug­ges­tion to learned Coun­sel and after some per­sua­sive dis­cus­sion, look­ing to the sen­si­tiv­ity of the mat­ter, they have agreed to such propo­si­tion. We must has­ten to add that this solu­tion came after it was made clear to the par­ties’ coun­sel that in the face of the ban imposed, we saw no jus­ti­fi­ca­tion for let­ting out the Sta­dium to any per­son to con­duct activ­i­ties other than sports and games or activ­i­ties sub­servient, ancil­lary, or con­se­quen­tial to these objects. The step we have devised is just to save embar­rass­ment to all con­cerned because we are told that lot of money has been spent in print­ing invi­ta­tions to the invi­tees and as oth­er­wise this would lead to lot of con­fu­sion to dig­ni­taries who might have plans to come to par­tic­i­pate in the cel­e­bra­tion. We make it clear that the instance referred to in the let­ter of per­mis­sion and the counter-affidavit filed by the respon­dents per­tain­ing to a one time user of the Sta­dium by the present appel­lant when a Chief Min­is­ter, would in no event be per­mit­ted to be quoted as prece­dent or cre­at­ing any right in favour of any­one to ever claim the Sta­dium for the pur­poses other than those men­tioned ear­lier so long as the ban con­tin­ues and we see no rea­son why the ban should not con­tinue ever after. We are told that crores of rupees have gone to erect such a Sta­dium which meets inter­na­tional stan­dards. It goes with­out say­ing that it was the tax-payers money which went to build the Sta­dium. The tax-payers have a right to its being main­tained as such and not to be treated as just any other pub­lic place for being hired at con­ve­nience by any­one. The jus­ti­fi­ca­tion sought here that the State would be richer by two lacs of rupees as rental for the day does not con­vince us a wee bit. That under­stand­ing is totally alien to the pur­pose for which sta­dia are built and most of all, the present one.

 

53 The Hon’ble Supreme Court has held in Chair­man, Rail­way Board and Oth­ers ver­sus Chan­drima Das (Mrs.) and Oth­ers, (2002) 2 SCC 465 that for the main­tain­abil­ity of the pub­lic inter­est peti­tion, per­sonal injury or loss is not an essen­tial ele­ment of stand­ing. Their Lord­ships have held as under:- “The main con­tention of the learned coun­sel for the appel­lants is that Mrs. Chan­drima Das was only a prac­tis­ing advo­cate of the Cal­cutta High Court and was, in no way, con­nected or related to the vic­tim, Smt. Hanuffa Kha­toon and, there­fore, she could not have filed a peti­tion under Arti­cle 226 for dam­ages or com­pen­sa­tion being awarded to Smt. Hanuffa Kha­toon on account of the rape com­mit­ted on her. This con­tention is based on a mis­con­cep­tion. Learned coun­sel for the appel­lants is under the impres­sion that the peti­tion filed before the Cal­cutta High Court was only a peti­tion for dam­ages or com­pen­sa­tion for Smt.

 

Hanuffa Kha­toon. As a mat­ter of fact, the reliefs which were claimed in the peti­tion included the relief for com­pen­sa­tion. But many other reliefs as, for exam­ple, relief for erad­i­cat­ing anti­so­cial and crim­i­nal activ­i­ties of var­i­ous kinds at Howrah Rail­way Sta­tion were also claimed. The true nature of the peti­tion, there­fore, was that of a peti­tion filed in pub­lic interest.

 

The exis­tence of a legal right, no doubt, is the foun­da­tion for a peti­tion under Arti­cle 226 and a bare inter­est, may be of a min­i­mum nature, may give locus standi to a per­son to file a Writ Peti­tion, but the con­cept of “Locus Standi” has under­gone a sea change, as we shall presently notice. In Dr. Satya­narayana Sinha v. S. Lal and Co.

 

Pvt. Ltd., AIR 1973 SC 2720 : (1973) 2 SCC 696, it was held that the foun­da­tion for exer­cis­ing juris­dic­tion under Arti­cle 32 or Arti­cle 226 is ordi­nar­ily the per­sonal or indi­vid­ual right of the peti­tioner himself.

 

In writs like Habeas Cor­pus and Quo War­ranto, the rule has been relaxed and modified.

 

Hav­ing regard to the nature of the peti­tion filed by respon­dent Mrs. Chan­drima Das and the relief claimed therein it can­not be doubted that this peti­tion was filed in pub­lic inter­est which could legally be filed by the respon­dent and the argu­ment that she; could not file that 54 peti­tion as there was noth­ing per­sonal to her involved in that peti­tion must be rejected.” The Hon’ble Supreme Court in M.S. Jayaraj ver­sus Com­mis­sioner of Excise, Ker­ala and Oth­ers, (2000) 7 SCC 552 has lib­er­alised the prin­ci­ple of locus standi. Their Lord­ships have held as under:- “In this con­text we noticed that this Court has changed from the ear­lier strict inter­pre­ta­tion regard­ing locus standi as adopted in Nagar Rice & Flour Mills v. N. Teekappa Gowda & Bros., (1970) 1 SCC 575 : (AIR 1971 SC 246) and Jas­b­hai Motib­hai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC 671 : (AIR 1976 SC 578) and a much wider can­vass has been adopted in later years regard­ing a person’s enti­tle­ment to move the High Court involv­ing writ juris­dic­tion. A four Judge Bench in Jas­b­hai Motib­hai Desai (AIR 1976 SC 578) (supra) pointed out three cat­e­gories of per­sons vis-a-vis the locus standi : (1) a per­son aggrieved; (2) a stranger; (3) a busy­body or a med­dle­some inter­loper. Learned Judges in that deci­sion pointed out that any one belong­ing to the third cat­e­gory is eas­ily dis­tin­guish­able and such per­son inter­feres in things which do not con­cern him as he mas­quer­ades to be a cru­sader of jus­tice. The Judg­ment has cau­tioned that the High Court should do well to reject the peti­tions of such busy­body at the thresh­old itself. Then their Lord­ships observed the fol­low­ing: (SCC p. 683, para 38) : “38. The dis­tinc­tion between the first and sec­ond cat­e­gories of appli­cants, though real, is not always well demar­cated. The first cat­e­gory has as it were, two con­cen­tric zones; a solid cen­tral zone of cer­tainty, and a grey outer cir­cle of less­en­ing cer­tainty in a slid­ing cen­trifu­gal scale, with an out­er­most neb­u­lous fringe of uncertainty.

 

Appli­cants falling within the cen­tral zone are those whose legal rights have been infringed. Such appli­cants undoubt­edly stand in the cat­e­gory of ‘per­sons aggrieved’. In the grey outer cir­cle the bounds which sep­a­rate the first cat­e­gory from the sec­ond, inter­mix, inter­fuse and over­lap increas­ingly in a cen­trifu­gal direc­tion. All per­sons in this outer zone may not be per­sons aggrieved.” 55 The Hon’ble Supreme Court in Ghu­lam Qadir ver­sus Spe­cial Tri­bunal and Oth­ers, (2002) 1 SCC 33 had made far reach­ing changes in the ortho­dox rule of inter­pre­ta­tion regard­ing locus standi. Their Lord­ships have held as under:- “There is no dis­pute regard­ing the legal propo­si­tion that the rights under Arti­cle 226 of the Con­sti­tu­tion of India can be enforced only by an aggrieved per­son except in the case where the writ prayed is for habeas cor­pus or quo war­ranto. Another excep­tion in the gen­eral rule is the fil­ing of a writ peti­tion in pub­lic inter­est. The exis­tence of the legal right of the peti­tioner which is alleged to have been vio­lated is the foun­da­tion for invok­ing the juris­dic­tion of the High Court under the afore­said Arti­cle. The ortho­dox rule of inter­pre­ta­tion regard­ing the locus standi of a per­son to reach the court has under­gone a seachange with the devel­op­ment of con­sti­tu­tional law in our coun­try and the con­sti­tu­tional courts have been adopt­ing a lib­eral approach in deal­ing with the cases or dis-lodging the claim of a lit­i­gant merely on hyper-technical grounds. If a per­son approach­ing the court can sat­isfy that the impugned action is likely to adversely affect his right which is shown to be hav­ing source in some statu­tory pro­vi­sion, the peti­tion filed by such a per­son can­not be rejected on the ground of his hav­ing not the locus standi. In other words, if the per­son is found to be not merely a stranger hav­ing no right what­so­ever to any post or prop­erty, he can­not be non-suited on the ground of his not hav­ing the locus standi.” Their Lord­ships of the Hon’ble Supreme Court have held in Indian Banks’ Asso­ci­a­tion, Bom­bay and Oth­ers ver­sus Devkala Con­sul­tancy Ser­vice and Oth­ers, (2004) 11 SCC that the Supreme Court under Arti­cle 32 and the High Courts under Arti­cle 226 are enti­tled to enter­tain the peti­tions moved by a per­son hav­ing knowl­edge in the sub­ject mat­ter of the lis and, thus, hav­ing an inter­est therein as con­tradis­tin­guished from a busy­body for the wel­fare of the peo­ple. Their Lord­ships have held as under:- “The writ peti­tioner before the High Court was a firm of the Char­tered Accoun­tant. As an expert in accoun­tancy and au56 dit­ing, it must have come across sev­eral cases where its client had to pay a higher amount of inter­est to the banks pur­suant to or in fur­ther­ance of the impugned action of the appel­lants. By rea­son of such an action on the part of the appel­lants as also the Reserve Bank of India, as noticed here­in­be­fore, the cit­i­zens of India had to pay a higher amount of tax as also a higher amount of inter­est for no fault on their part. The same had been recov­ered from them with­out any author­ity of law. While enter­tain­ing a pub­lic inter­est lit­i­ga­tion, this Court in exer­cise of its juris­dic­tion under Art. 32 of the Con­sti­tu­tion of India and the High Courts under Art. 226 thereof are enti­tled to enter­tain a peti­tion moved by a per­son hav­ing knowl­edge in the sub­ject­mat­ter of Us and, thus, hav­ing an inter­est therein as con­tra dis­tin­guished from a busy body, is the wel­fare of the peo­ple. The rule of locus has been relaxed by the Courts for such pur­poses with a view to enable a cit­i­zen of India to approach the Courts to vin­di­cate legal injury or legal wrong caused to a sec­tion of peo­ple by way of vio­la­tion of any statu­tory or con­sti­tu­tional right.” The Hon’ble Apex Court has held in Nand­k­ishore Ganesh Joshi vesus Com­mis­sioner, Munic­i­pal Cor­po­ra­tion of Kalyan & Dom­bivali and Oth­ers, (2004) 11 SCC 417 that the mem­ber of the Stand­ing Com­mit­tee had the req­ui­site stand­ing in fil­ing the pub­lic inter­est lit­i­ga­tion. Their Lord­ships have held as under:- “… Sub­mis­sion of Mr. Rad­hakr­ish­nan that the Appel­lant has no locus standi to main­tain the writ peti­tion can­not be accepted keep­ing in view the fact that he was the Chair­man of the Stand­ing Com­mit­tee and although the Stand­ing Com­mit­tee itself was not the writ peti­tioner. A ques­tion involv­ing proper inter­pre­ta­tion as regard the statu­tory pro­vi­sions con­fer­ring a statu­tory right on a statu­tory author­ity vis-a-vis a statu­tory duty on the part of the Com­mis­sioner could be gone into by the High Court even in a pub­lic inter­est lit­i­ga­tion.” The Hon’ble Apex Court has held in Dit­taraj Nathuji Thaware ver­sus State of Maha­rash­tra and Oth­ers, (2005) 1 SCC 590 that a per­son act­ing bona fide and 57 hav­ing suf­fi­cient inter­est in the pro­ceed­ings of pub­lic inter­est lit­i­ga­tion will alone have a locus standi and can approach the Court to wipe out vio­la­tion of fun­da­men­tal rights and gen­uine infrac­tion of statu­tory pro­vi­sion, but nor for per­sonal gain or pri­vate profit or polit­i­cal motive or any oblique con­sid­er­a­tion. Their Lord­ships have held as under:- “The Court has to be sat­is­fied about (a) the cre­den­tials of the appli­cant; (b) the prima facie cor­rect­ness or nature of infor­ma­tion given by him; © the infor­ma­tion being not vague and indef­i­nite. The infor­ma­tion should show grav­ity and seri­ous­ness involved. Court has to strike bal­ance between two con­flict­ing inter­ests; (i) nobody should be allowed to indulge in wild and reck­less alle­ga­tions besmirch­ing the char­ac­ter of oth­ers; and (ii) avoid­ance of pub­lic mis­chief and to avoid mis­chie­vous peti­tions seek­ing to assail, for oblique motives, jus­ti­fi­able exec­u­tive actions. In such case, how­ever, the Court can­not afford to be lib­eral. It has to be extremely care­ful to see that under the guise of redress­ing a pub­lic griev­ance, it does not encroach upon the sphere reserved by the Con­sti­tu­tion to the Exec­u­tive and the Leg­is­la­ture. The Court has to act ruth­lessly while deal­ing with imposters and busy­bod­ies or med­dle­some inter­lop­ers imper­son­at­ing as public-spirited holy men. They mas­quer­ade as cru­saders of jus­tice. They pre­tend to act in the name of pro bono pub­lico, though they have no inter­est of the pub­lic or even of their own to pro­tect.” 2. Whether the present writ peti­tion can be termed as pub­lic inter­est lit­i­ga­tion in view of the con­sti­tu­tional issues raised for pro­tect­ing the fun­da­men­tal rights of the peti­tion­ers as well as the rights of co-villagers for the restora­tion of their land on the basis of amend­ment car­ried out in the year 2001, which ear­lier stood vested in the State in the year 1974? The entire con­cept of pub­lic inter­est lit­i­ga­tion, class lit­i­ga­tion and social action lit­i­ga­tion has been suc­cinctly dealt with by the Supreme Court in the fol­low­ing cases: 58 The Hon’ble Apex Court has held in Fer­tililzer Cor­po­ra­tion Kam­a­gar Union (Regd.) Sin­dri and oth­ers v. Union of India and Oth­ers, AIR 1981 SC 344 that pub­lic inter­est lit­i­ga­tion is part of the process of par­tic­i­pate jus­tice and “stand­ing” in civil lit­i­ga­tion of that pat­tern must have lib­eral recep­tion at the judi­cial door steps. Their Lord­ships have held as under:- “That dis­poses of the ques­tion as regards the main­tain­abil­ity of the writ peti­tion. But, we feel con­cerned to point out that the main­tain­abil­ity of a writ peti­tion which is cor­re­lated to the exis­tence and vio­la­tion of a fun­da­men­tal right is not always to be con­fused with the locus to bring a pro­ceed­ing under Arti­cle 32. These two mat­ters often min­gle and coa­lesce with the result that it becomes dif­fi­cult to con­sider them in water­tight com­part­ments. The ques­tion whether a per­son has the locus to file a pro­ceed­ing depends mostly and often on whether he pos­sesses a legal right and that right is vio­lated. But, in an appro­pri­ate case, it may become nec­es­sary in the chang­ing aware­ness of legal rights and social oblig­a­tions to take a broader view of the ques­tion of locus to ini­ti­ate a pro­ceed­ing, be it under Art. 226 or under Art. 32 of the Con­sti­tu­tion. If pub­lic prop­erty is dis­si­pated, it would require a strong argu­ment to con­vince the Court that rep­re­sen­ta­tive seg­ments of the pub­lic or at least a sec­tion of the pub­lic which is directly inter­ested and affected would have no right to com­plain of the infrac­tion of pub­lic duties and oblig­a­tions. Pub­lic enter­prises are owned by the peo­ple and those who run them are account­able to the peo­ple. The account­abil­ity of the pub­lic sec­tor to the Par­lia­ment is inef­fec­tive because the Par­lia­men­tary con­trol of pub­lic enter­prises is “dif­fuse and hap­haz­ard”. We are not too sure if we would have refused relief to the work­ers if we had found that the mile was unjust, unfair or mala fide.

 

A prag­matic approach to social jus­tice com­pels us to inter­pret con­sti­tu­tional pro­vi­sions, includ­ing those like Arts. 32 and 226, with a view to see that effec­tive polic­ing of the cor­ri­dors of power is car­ried out by the. court until other ombuds­man arrange­ments — a prob­lem with which Par­lia­ment has been wrestling for too long — emerges. I have dwelt at a lit­tle length on this pol­icy aspect and the court process because the learned Attor­ney Gen­eral chal­lenged the 59 petitioner’s locus standi either qua worker or qua cit­i­zen to ques­tion in court the wrong doings of the pub­lic sec­tor although he main­tained that what had been done by the Cor­po­ra­tion was both bona fide and cor­rect. We cer­tainly agree that judi­cial inter­fer­ence with the Admin­is­tra­tion can­not be metic­u­lous in our Mon­tesquien sys­tem of sep­a­ra­tion of pow­ers. The court can­not usurp or abdi­cate, and the para­me­ters of judi­cial review must be clearly defined and never exceeded. If the Direc­torate of a Gov­ern­ment com­pany has acted fairly, even if it has fal­tered in its wis­dom, the court can­not, as a super­au­di­tor, take the Board of Direc­tors to task.

 

This func­tion is, lim­ited to test­ing whether the admin­is­tra­tive action has been fair and free from the taint of unrea­son­able­ness and has sub­stan­tially com­plied with the norms of pro­ce­dure set for it by rules of pub­lic administration.

 

Law, as I con­ceive it, is a social ‚audi­tor and this audit func­tion can be put into action only when some one with real pub­lic inter­est ignites the juris­dic­tion. We can­not be scared by the fear that all and sundry will be litigation-happy and waste their time and money and the time of the court through false and friv­o­lous cases. In a soci­ety where free­doms suf­fer from atro­phy and activism is essen­tial for par­tic­i­pa­tive pub­lic jus­tice, some risks have to be taken and more oppor­tu­ni­ties opened for the pub­lic minded cit­i­zen to rely on the legal process and not be repelled from it by nar­row pen­dantry now sur­round­ing locus standi.

 

Schwartz and H. W. R. Wade wrote in Legal Con­trol of Gov­ern­ment: “Restric­tive rules about stand­ing are in gen­eral inim­i­cal to a healthy sys­tem of admin­is­tra­tive law. If a plain­tiff with a good case is turned away, merely because he is not suf­fi­ciently affected per­son­ally, that means that some gov­ern­ment agency is left free to vio­late the law, and that is con­trary to the pub­lic inter­est. Lit­i­gants are unlikely to expend their time and money unless they have some real inter­est at stake. In. the rare cases where they wish to sue merely out of pub­lic spirit, why should they be dis­cour­aged?” [Pro­fes­sors Bernard Schwartz and H. W. R. Wade, O. C., in Legal Con­trol of Gov­ern­ment (1972), p. 291.] They fur­ther observed: “The prob­lem of stand­ing, or locus standi is inher­ent in all legal sys­tems.….…. But in the United States, per­haps because of the 60 con­sti­tu­tional basis which the sub­ject has acquired in fed­eral law it can be dis­cussed as a sin­gle topic. In Britain it is a thing of shreds and patches, made up of var­i­ous dif­fer­ing rules which apply to var­i­ous dif­fer­ent reme­dies and pro­ce­dures. It is a typ­i­cal prod­uct of the untidy sys­tem of reme­dies, each with its own tech­ni­cal­i­ties, which all British admin­is­tra­tive lawyers would like to see reformed”.

 

[Ibid].

 

We have no doubt that hav­ing regard to the con­di­tions in Third World coun­tries. Cap­pel­letti is right in his stress on the impor­tance of access: “The right of effec­tive access to jus­tice has emerged with the new social rights. Indeed, it is of para­mount impor­tance among these new rights since, clearly, the enjoy­ment of tra­di­tional as well as new social rights pre­sup­poses mech­a­nisms for their effec­tive pro­tec­tion. Such pro­tec­tion, more­over, is best assured by a work­able rem­edy within the frame­work of the judi­cial system.

 

Effec­tive access to jus­tice can thus be seen as the most basic require­ment — the most basic ‘human right” — of a sys­tem which pur­ports to guar­an­tee legal rights”. [M. Cap­pel­letti, Rabels Z (1976) 669 at 672.] The need for a rad­i­cal approach has been under­scored in New Zealand by Black: “.….….…… today it is unreal to sug­gest that, a per­son looks to the law Solely to pro­tect his inter­ests in a nar­row sense. It is nec­es­sary to do no more than read the news­pa­pers to see the breadth of the inter­ests that today’s cit­i­zen expects the law to pro­tect — and he expects the court where nec­es­sary to pro­vide that pro­tec­tion. He is inter­ested in results, not pro­ce­dural niceties. ” [Black. ‘The Right to be Heard”. New Zealand L. J., No. 4, 1977, 66.] India is an a for­tiori case, espe­cially as it suf­fers from the pathol­ogy of mid Vic­to­rian con­cepts about cause of action. The Aus­tralian Law Reform Com­mis­sion in its dis­cus­sion paper No. 4 has con­sid­ered the pros and cons and strongly sup­ported the wider basis for access to jus­tice. Class-actions will activise the legal process where indi­vid­u­als can­not approach the court for many rea­sons. I quote from the Dis­cus­sion Paper No. 4: [The Law Reform Com­mis­sion, Dis­cus­sion Paper No. 4 — Access to the Court –1, Stand­ing: Pub­lic Inter­est Suits, p. 4.] 61 ‘Widened stand­ing rules may. assist con­sumers in attain­ing rel­e­vant injunc­tive or declara­tory relief but they do not assist in recov­er­ing losses inflicted by ille­gal trad­ing prac­tices, nor do they threaten the ille­gal trader where he is most hurt, his pocket book.

 

The most potent legal instru­ment in that regard so far devised is the mod­ern class action, to some an ‘engine of destruc­tion,’ to oth­ers a mighty force for good. Con­sider the New York Com­mis­sioner of Con­sumer Affairs giv­ing evi­dence before a United States Sen­ate Com­mit­tee in 1970. [Evi­dence of Mrs. Bess Myer­son, Commr. of Con­sumer Affairs of the City of New York, before the Con­sumer Sub-committee of the U. S. Sen­ate Com­mit­tee on Com­merce, No.

 

91–48, at 172.] ‘A fed­eral class action law will have more impact on the mar­ket places of the nation than all the myr­i­ads of laws and ordi­nances against fraud and decep­tion which are hid­den away, in the statute books of the 50 States and their var­i­ous sub-divisions, put together.

 

All these laws make fraud ille­gal. But they have not made fraud unprof­itable. Many of these laws can only be invoked by admin­is­tra­tive agen­cies, which long ago lost their con­cern for the con­sumer and their appetite for action.

 

A Fed­eral class action law .… will put the power to seek jus­tice in court where it belongs — beyond the reach of cam­paign con­trib­u­tors, indus­try lob­by­ists, or Wash­ing­ton lawyers — and it will put power in the hands of the con­sumers them­selves and in the hands of their own lawyers, retained by them to rep­re­sent their inter­ests alone. ’ ” Pub­lic inter­est lit­i­ga­tion is part of the process of par­tic­i­pate jus­tice and ‘stand­ing’ in civil, lit­i­ga­tion of that pat­tern must have lib­eral recep­tion at the judi­cial doorsteps. The flood­gates argu­ment has been nailed by the Aus­tralian Law Reforms Com­mis­sion : “The idle and whim­si­cal plain­tiff, a dilet­tante who lit­i­gates for a lark, is a spec­tre which haunts the legal lit­er­a­ture, not the court room. [Prof. K. E. Scott : “Stand­ing in the Supreme Court : A Func­tional Analy­sis” (1973) 86.] A major expressed rea­son for lim­it­ing stand­ing rights is fear of a spate of actions brought by busy­bod­ies which will unduly extend the resources of the courts. No argu­ment is eas­ier put, none more dif­fi­cult to rebut. Even if the fear be jus­ti­fied it does not fol­low that 62 present restric­tions should remain. If proper claims exist it may be nec­es­sary to pro­vide resources for their deter­mi­na­tion. How­ever, the issue must be considered.

 

.….….….….. Over recent years suc­ces­sive deci­sions of the United States Supreme Court have lib­er­alised stand­ing so as to afford a hear­ing to any per­son with a real inter­est in the rel­e­vant con­tro­versy. Sur­vey­ing the result in 1973 Pro­fes­sor Scott com­mented: [Op Cit, 673 ] When the flood­gates of lit­i­ga­tion are opened to some new class of con­tro­versy by a deci­sion it is notable how rarely one can dis­cern the flood that the dis­senters feared.

 

Pro­fes­sor Scott went on to point out that the lib­er­alised stand­ing rules bad caused no sig­nif­i­cant increase in the num­ber of actions brought, argu­ing that par­ties will not lit­i­gate at con­sid­er­able per­sonal cost unless they have a real inter­est in a mat­ter.” We agree with the con­clu­sion of the Com­mis­sion : “The moral, per­haps, applies; if the courts can­not, or will not, give relief to peo­ple who are in fact con­cerned about a mat­ter then they will resort to self-help, with grave results for other per­sons and the rule of law. Some may reply that if there Is no evi­dence of a great increase in num­bers there is no evi­dence of need for enlarged stand­ing rights. The reply would over­look two con­sid­er­a­tions. One case may have a dra­matic effect on behav­iour in hun­dreds of oth­ers; this is the whole notion of the legal ‘test case’. Sec­ondly, the mere expo­sure to pos­si­ble action is likely to affect the behav­iour of per­sons who presently feel them­selves immune from legal control”.

 

In the Munic­i­pal Coun­cil, Rat­lam, (AIR 1980 SC 1622) a bench of this Court observed: ” ‘it is pro­ce­dural rules’ as this appeal proves, ‘which infuse life into sub­stan­tive rights, which acti­vate them to make them effec­tive’ .….….… The truth is that a few pro­found issues of proces­sual jurispru­dence of great strate­gic sig­nif­i­cance to our legal sys­tem face us and we must zero-in on them as they involve prob­lems of access to jus­tice for the peo­ple beyond the blink­ered rules of ‘stand­ing’ of British Indian vin­tage. If the cen­tre of grav­ity of jus­tice is to shift, as the Pre­am­ble to the Con­sti­tu­tion man­dates, from the 63 tra­di­tional indi­vid­u­al­ism. of locus standi to the com­mu­nity ori­en­ta­tion of pub­lic inter­est lit­i­ga­tion, these issues must be con­sid­ered. In that sense, the case before us between the Rat­lam Munic­i­pal­ity and the cit­i­zens of a ward, is a path-finder in the field of people’s involve­ment in the jus­tic­ing process, sans which as Prof. Sikes points the sys­tem may ‘crum­ble under the bur­den or its own insensitivity’ .….….

 

Our judi­cial sys­tem has been aptly described as fol­lows : Admirable though it may be, (it) is at once slow and costly. It is a fin­ished prod­uct of great beauty, but entails an immense sac­ri­fice of time, money and talent.

 

This “beau­ti­ful’ sys­tem is fre­quently a lux­ury; it tends to give a high qual­ity of jus­tice only when, for one rea­son or another, par­ties can sur­mount the sub­stan­tial bar­ri­ers which it erects to most peo­ple and to many types of claims.

 

Why drive com­mon peo­ple to pub­lic inter­est action? Where Direc­tive Prin­ci­ples have found statu­tory expres­sion in Do’s and Dont’s the court will not sit idly by.….….….” [Munic­i­pal Coun­cil, Rat­lam v. Shri Vardhichand-S. L. P. (Crl.) No. 2856 of 1979 — decided on July 29, 1980. (reported in AIR 1980 SC 1622).] After all Aus­tralian, 16 Novem­ber, 1977 was right. We quote as a con­clud­ing thought of benign import for us :- “Under a ban­ner ‘Eas­ier Access to Courts of Law the Aus­tralian, 16 Novem­ber 1977 declared: ‘Per­haps — and it is only a per­haps there was once some jus­ti­fi­ca­tion for restrict­ing access to the courts to pre­vent their being bogged down in a morass of inef­fec­tu­al­ity. But today’s bet­ter informed, bet­ter edu­cated, more lit­er­ate and more polit­i­cally aware cit­i­zens should cer­tainly not be barred from the courts by tradition.

 

The law can no longer be a closed shop.” The Hon’ble Supreme Court has held in Band­hua Mukti Mor­cha v. Union of India and Oth­ers, AIR 1984 SC 802 that the pub­lic inter­est lit­i­ga­tion is not in the nature of adver­sary lit­i­ga­tion but is a chal­lenge and an oppor­tu­nity to the Gov­ern­ment and its offi­cers to make basic human rights mean­ing­ful to the deprived and vul­ner­a­ble sec­tions of the com­mu­nity and to assure them social and eco­nomic 64 jus­tice which is the sig­na­ture tune of our Con­sti­tu­tion. Their Lord­ships have held as under:- “We have on more occa­sions than one said that pub­lic inter­est lit­i­ga­tion is not in the nature of adver­sary lit­i­ga­tion but it is a chal­lenge and an oppor­tu­nity to the gov­ern­ment and its offi­cers to make basic human rights mean­ing­ful to the deprived and vul­ner­a­ble sec­tions of the com­mu­nity and to assure them social and eco­nomic jus­tice which is the sig­na­ture tune of our Con­sti­tu­tion. The Gov­ern­ment and its offi­cers must wel­come pub­lic inter­est lit­i­ga­tion, because it would pro­vide them an occa­sion to exam­ine whether the poor and the down-trodden are get­ting their social and eco­nomic enti­tle­ments or whether they are con­tin­u­ing to remain vic­tims of decep­tion and exploita­tion at the hands of strong and pow­er­ful sec­tions of the com­mu­nity and whether social and eco­nomic jus­tice has become a mean­ing­ful real­ity for them or, it has remained merely a teas­ing illu­sion and a promise of unre­al­ity, so that in case the com­plaint in the pub­lic inter­est lit­i­ga­tion is found to be true, they can in dis­charge of their con­sti­tu­tional oblig­a­tion root out exploita­tion and injus­tice and ensure to the weaker sec­tions their rights and enti­tle­ments. When the Court enter­tains pub­lic inter­est lit­i­ga­tion, it does not do so in a cav­illing spirit or in a con­fronta­tional mood or with a view to tilt­ing at exec­u­tive author­ity or seek­ing to usurp it, but its attempt is only to ensure, obser­vance of social and eco­nomic res­cue pro­grammes, leg­isla­tive as well as exec­u­tive, framed for the ben­e­fit of the havenots and the hand­i­capped and to pro­tect them against vio­la­tion of their basic human rights, which is also the con­sti­tu­tional oblig­a­tion of the, exec­u­tive. The Court is thus merely assist­ing in the real­i­sa­tion of the con­sti­tu­tional objectives.

 

The Hon’ble Apex Court in The Janta Dal v. H.S. Chowd­hary and Oth­ers, AIR 1993 SC 892 has explained the expres­sion pub­lic inter­est lit­i­ga­tion to mean legal action ini­ti­ated for enforce­ment of pub­lic or gen­eral inter­est. Their Lord­ships have held as under:- “The expres­sion ‘lit­i­ga­tion’ means a legal action includ­ing all pro­ceed­ings therein, ini­ti­ated in a Court of Law with the pur­pose of 65 enforc­ing a right or seek­ing a rem­edy. There­fore, lex­i­cally the expres­sion ‘PIL’ means a legal action ini­ti­ated in a Court of Law for the enforce­ment of pub­lic inter­est or gen­eral inter­est in which the pub­lic or a class of the com­mu­nity have pecu­niary inter­est or some inter­est by which their legal rights or lia­bil­i­ties are affected. There is a host of deci­sions explain­ing the expres­sion ‘PIL’ in its wider con­no­ta­tion in the present day con­text in mod­ern soci­ety, a few of which we will refer to in the appro­pri­ate part of this judgment.

 

From the above pro­nounce­ments, it emerges that this sum­mit Court has widely enlarged the scope of PIL by relax­ing and lib­er­al­is­ing the rule of stand­ing by treat­ing let­ters or peti­tions sent by any per­son or asso­ci­a­tion com­plain­ing vio­la­tion of any fun­da­men­tal rights and also enter­tain­ing Writ peti­tions filed under Art. 32 of the Con­sti­tu­tion by pub­lic spir­ited and pol­icy ori­ented activist per­sons or jour­nal­ists or of any organ­i­sa­tion reject­ing seri­ous chal­lenges made with regard to the main­tain­abil­ity of such peti­tions ren­dered many vir­tu­osic pro­nounce­ments and issued man­i­fold direc­tions to the Cen­tral and the State Gov­ern­ments, all local and other author­i­ties within the ter­ri­tory of India or under the con­trol of the Gov­ern­ment of India for the bet­ter­ment of the pub­lic at large in many fields in con­for­mity with con­sti­tu­tional pre­scrip­tions of what con­sti­tutes the good life in a socially just democ­racy. The newly invented propo­si­tion of law laid down by many learned Judges of this Court in the arena of PIL irrefutably and man­i­festly estab­lish that our dynamic activism in the field of PIL is by no means less than those of other activist judi­cial sys­tems in other part of the world.

 

It may not be out of place to men­tion here that there may be numer­ous cir­cum­stances jus­ti­fy­ing the enter­tain­ing of Pub­lic Inter­est Lit­i­ga­tion but we can­not obvi­ously enu­mer­ate an exhaus­tive list of all such situations.

 

Bhag­wati, J. in S. P. Gupta’s case, (AIR 1982 SC 149) (pop­u­larly known as Judges’ Appoint­ment and Trans­fer case) which was heard by a Bench of seven learned Judges, has clearly defined ‘what PIL means and is’ and expressed his views in metic­u­lous detail in the fol­low­ing. terms (para 17 of AIR): 66 “It may there­fore now be taken as well estab­lished that where a legal wrong or a legal injury is caused to a per­son or to a deter­mi­nate class of per­sons by rea­son of vio­la­tion of any con­sti­tu­tional or legal right or any bur­den is imposed in con­tra­ven­tion of any con­sti­tu­tional or legal pro­vi­sion or with­out author­ity of law or any such legal wrong or legal injury or ille­gal bur­den is threat­ened and such per­son or deter­mi­nate class of per­sons is by rea­son of poverty, help­less­ness or dis­abil­ity or socially or eco­nom­i­cally dis­ad­van­taged posi­tion, unable to approach the Court for relief, any mem­ber, of the pub­lic can main­tain an appli­ca­tion for an appro­pri­ate direc­tion, order or writ in the High Court under Arti­cle 226 and in case of breach of any fun­da­men­tal right of such per­son or deter­mi­nate class of per­sons, in this Court under Art. 32 seek­ing judi­cial redress for the legal wrong or injury caused to such per­son or deter­mi­nate class of per­sons .….….. This Court will read­ily respond even to a let­ter addressed by such indi­vid­ual act­ing pro bono pub­lico. It is true that there are rules made by this Court pre­scrib­ing the pro­ce­dure for mov­ing this Court for relief under Arti­cle 32 and they require var­i­ous for­mal­i­ties to be gone through by a per­son seek­ing to approach this Court. But it must not be for­got­ten that pro­ce­dure is but a hand­maiden of jus­tice and the cause of jus­tice can never be allowed to be thwarted by any pro­ce­dural tech­ni­cal­i­ties. The Court would there­fore unhesi­tat­ingly and with­out the slight­est qualms of con­science cast aside the tech­ni­cal rules of pro­ce­dure in the exer­cise of its dis­pens­ing power and treat the let­ter of pub­lic­minded indi­vid­ual as a writ peti­tion and act upon it.….….….….….….….….….….….….….….….….….….…..But we must has­ten to make it clear that the indi­vid­ual who moves the Court for judi­cial redress in cases of this kind must be act­ing bona fide with a view to vin­di­cat­ing the cause of jus­tice and if he is act­ing for per­sonal gain or pri­vate profit or out of polit­i­cal moti­va­tion or other oblique con­sid­er­a­tion, the Court should not allow itself to be activised at the instance of such per­son and must reject his appli­ca­tion at the thresh­old, whether it be in the form of a let­ter addressed to the Court or peti­tion even in the form of a reg­u­lar writ filed in Court. We may also point out that as a mat­ter of pru­dence and not as a rule of law, the Court may con­fine this strate­gic exer­cise of juris­dic­tion to 67 cases where legal wrong or legal injury is caused to a deter­mi­nate class or group of per­sons or the con­sti­tu­tional or legal right of such deter­mi­nate class or group of per­sons is vio­lated and as far as pos­si­ble, not enter­tain cases of indi­vid­ual wrong or injury at the instance of a third party, where there is an effec­tive legal-aid orga­ni­za­tion which can take care of such cases.” After hav­ing elab­o­rately explained the con­cept of PIL, the learned Judge held that : “.….…..any mem­ber of the pub­lic hav­ing suf­fi­cient inter­est can main­tain an action for judi­cial redress for pub­lic injury aris­ing from breach of pub­lic duty or from vio­la­tion of some pro­vi­sion of the Con­sti­tu­tion or the law and seek enforce­ment of such pub­lic duty and obser­vance of such con­sti­tu­tional or legal pro­vi­sion. This is absolutely essen­tial for main­tain­ing the rule of law, fur­ther­ing the cause of jus­tice and accel­er­at­ing the pace of real­iza­tion of the con­sti­tu­tional objec­tives.” How­ever, the learned Judge has sounded a note of cau­tion to the Courts to be observed while enter­tain­ing a Pub­lic Inter­est Lit­i­ga­tion as fol­lows: “But we must be care­ful to see that the mem­ber of the pub­lic, who approaches the Court in cases of this kind, is act­ing bona fide and not for per­sonal gain or pri­vate profit or polit­i­cal moti­va­tion or other oblique con­sid­er­a­tion. The Court must not allow its process to be abused by politi­cians and oth­ers to delay legit­i­mate admin­is­tra­tive action or to gain a polit­i­cal objec­tive.” The Hon’ble Apex Court has held in Gau­rav Jain ver­sus Union of India and Oth­ers, (1997) 8 SCC 114 that the pub­lic inter­est lit­i­ga­tion is not adver­sar­ial and it is one of col­lab­o­ra­tion and coop­er­a­tion between the State and the Court.

Their Lord­ships have held fur­ther that the rigour of the plead­ings or the relief sought for in adver­sar­ial lit­i­ga­tion, be soft­ened, new meth­ods, tools and pro­ce­dures be evolved to mete out jus­tice to enforce the fun­da­men­tal rights. Their Lord­ships have held as under:- “It would, thus, be the estab­lished pro­ce­dure of this Court under Arti­cle 32 that the pub­lic inter­est lit­i­ga­tion is not adver­sar­ial. It is one of col­lab­o­ra­tion and coop­er­a­tion between 68 the State and the Court. This Court as the sen­tinel on the qui vive, is con­sti­tu­tion­ally oblig­ated to enforce the fun­da­men­tal rights of all the cit­i­zens of the coun­try and to pro­tect them from exploita­tion and to pro­vide guid­ance and direc­tion for facil­i­ties and oppor­tu­ni­ties to them for secur­ing socio-economic jus­tice, empow­er­ment and to free the hand­i­capped per­sons from the dis­abil­i­ties with which they suf­fer from and to make them realise and enjoy the fun­da­men­tal rights ensured to them under the Con­sti­tu­tion. In that behalf, this Court is enti­tled and empow­ered under Arti­cle 32 to adopt such pro­ce­dure as is expe­di­ent in a given fact sit­u­a­tion and deal with the mat­ter appropriately.

 

There­fore, the rigour of the plead­ings or the reliefs sought for in adver­sar­ial lit­i­ga­tion, has been soft­ened; new meth­ods, tools and pro­ce­dures were evolved to mete out jus­tice and to enforce the fun­da­men­tal rights. Obvi­ously, there­fore, when a lim­ited relief to estab­lish sep­a­rate schools for the chil­dren of the fallen women was sought for by the petitioner-Gaurav Jain, this Court did not con­fine to the same. It, instead, enlarged the scope and directed the author­i­ties as an interim mea­sure to have those chil­dren admit­ted in the gen­eral schools to make the chil­dren over­come the dis­abil­i­ties had from foul atmos­phere and to gen­er­ate the feel­ing of one­ness and dis­seg­re­ga­tion. In addi­tion, this Court appointed V. C. Maha­jan Com­mit­tee to enquire into and sub­mit a report. The report was accord­ingly sub­mit­ted after exten­sive trav­el­ling to far and wide parts of the coun­try; it stud­ied not only the prob­lem of the chil­dren of the fallen women but also the route cause of the men­ace of child pros­ti­tu­tion and the pros­ti­tu­tion as such and the need for its erad­i­ca­tion. The pre­vail­ing con­di­tions have been pointed out in the Report and ben­e­fi­cial actions already taken by some of the Social Action Groups have been pointed and also noted as illus­trated here­in­above. They have also dealt with the prob­lems of the chil­dren. The State Gov­ern­ments and the Cen­tral Gov­ern­ment were sup­plied with the copies of the Report and they have not even objected to the rec­om­men­da­tions; in fact, they can­not be objected to since it is a fact pre­vail­ing, unfor­tu­nately, in the coun­try. There­fore, the relief can­not be restricted to the plead­ings or to the scope of the direc­tions ear­lier issued; the 69 Court can take cog­nizance from indis­putable or the undis­puted facts from the Report of V. C. Maha­jan Com­mit­tee and other reports and arti­cles pub­lished in recog­nised Jour­nals and act upon it. Plac­ing reliance thereon, the direc­tions given in the Order, aim not only at giv­ing ben­e­fits to the chil­dren but also to root out the very source of the prob­lem as has been pointed out in the first part of the Order, it is for the Gov­ern­ment to evolve suit­able pro­gramme of action. My learned brother has very gra­ciously agreed to the sec­ond part of the order relat­ing to the set­ting up of juve­nile homes for the pros­ti­tute chil­dren and chil­dren of fallen women.

 

The Hon’ble Supreme Court has reit­er­ated the para­me­ters with regard to fil­ing and main­tain­abil­ity of the pub­lic inter­est lit­i­ga­tion in BALCO Employ­ees Union (Regd.) v. Union of India and Oth­ers, AIR 2002 SC 350 as under:- “Pub­lic inter­est lit­i­ga­tion, or PIL as it is more com­monly known, entered the Indian judi­cial process in 1970. It will not be incor­rect to say that it is pri­mar­ily the judges who have inno­vated this type of lit­i­ga­tion as there was a dire need for it. At that stage, it was intended to vin­di­cate pub­lic inter­est where fun­da­men­tal and other rights of the peo­ple who were poor, igno­rant or in socially or eco­nom­i­cally dis­ad­van­ta­geous posi­tion and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adver­sar­ial in nature and was to be a co-operative and col­lab­o­ra­tive effort of the par­ties and the Court, so as to secure jus­tice for the poor and the weaker sec­tions of the com­mu­nity who were not in a posi­tion to pro­tect their own inter­ests. Pub­lic inter­est lit­i­ga­tion was intended to mean noth­ing more than what words them­selves said viz., ‘lit­i­ga­tion in the inter­est of the public’.

 

While PIL ini­tially was invoked mostly in cases con­nected with the relief to the peo­ple and the weaker sec­tions of the soci­ety and in areas where there was vio­la­tion of human rights under Arti­cle 21, but with the pas­sage of time, peti­tions have been enter­tained in other spheres. Prof. S.B. Sathe has sum­marised the extent of the juris­dic­tion which has now been exer­cised in fol­low­ing words :- “PIL may, there­fore, be described as 70 sat­is­fy­ing one or more of the fol­low­ing para­me­ters. These are not exclu­sive but merely descrip­tive: * Where the con­cerns under­ly­ing a peti­tion are not indi­vid­u­al­ist but are shared widely by a large num­ber of peo­ple bonded labourer, under­trial pris­on­ers, prison inmates.. * Where the affected per­sons belong to the dis­ad­van­taged sec­tions of soci­ety women, chil­dren, bonded labourer, unor­gan­ised labourer etc… * Where judi­cial law mak­ing is nec­es­sary to avoid exploita­tion inter-country adop­tion, the edu­ca­tion of the chil­dren of the pros­ti­tutes.. * Where judi­cial inter­ven­tion is nec­es­sary for the pro­tec­tion of the sanc­tity of demo­c­ra­tic insti­tu­tions inde­pen­dence of the judi­ciary, exis­tence of griev­ances redres­sal forums.. * Where admin­is­tra­tive deci­sions related to devel­op­ment are harm­ful to the envi­ron­ment and jeop­ar­dize people’s to nat­ural resources such as air or water”.

 

It will be seen that when­ever the Court has inter­fered and given direc­tions while enter­tain­ing PIL, it has mainly been where there has been an ele­ment of vio­la­tion of Arti­cle 21 or of human rights or where the lit­i­ga­tion has been ini­ti­ated for the ben­e­fit of the poor and the under­priv­i­leged who are unable to come to court due to some dis­ad­van­tage. In those cases also, it is the legal rights which are secured by the courts. We may, how­ever, add that pub­lic inter­est lit­i­ga­tion was not meant to be a weapon to chal­lenge the finan­cial or eco­nomic deci­sions which are taken by the gov­ern­ment in exer­cise of their admin­is­tra­tive power. No doubt, a per­son per­son­ally aggrieved by any such deci­sion, which he regards as ille­gal, can impugn the same in a court of law, but, a pub­lic inter­est lit­i­ga­tion at the behest of a stranger ought not to be enter­tained. Such a lit­i­ga­tion can­not per se be on behalf of the poor and the down­trod­den, unless the Court is sat­is­fied that there has been vio­la­tion of Arti­cle 21, and the per­sons adversely affected, are unable to approach the Court.” The Hon’ble Supreme Court has held in Mohd. Aslam alias Bhure ver­sus Union of India and Oth­ers, (2003) 4 SCC 1 that it would not approach mat­ters where pub­lic inter­est is involved in a tech­ni­cal or a nar­row man­ner. Their Lord­ships have held as under:- 71 “On sev­eral occa­sions this Court has treated let­ters, telegrams or post cards or news reports as writ peti­tions. In such peti­tions, on the basis of plead­ings that emerge in the case after notice to dif­fer­ent par­ties, relief has been given or refused. There­fore, this Court would not approach mat­ters where pub­lic inter­est is involved in a tech­ni­cal or a nar­row man­ner. Par­tic­u­larly, when this Court has enter­tained this peti­tion, issued notice to dif­fer­ent par­ties, new par­ties have been impleaded and interim order has also been granted, it would not be appro­pri­ate for his Court to dis­pose of the peti­tion on that ground.” The Hon’ble Supreme Court in Guru­vay­oor Devas­wom Man­ag­ing Com­mit­tee and Another ver­sus C.K. Rajan and Oth­ers, (2003) 7 SCC 546 has sum­marised the prin­ci­ples evolved by the Hon’ble Supreme Court in rela­tion to Pub­lic Inter­est Lit­i­ga­tion as under:- “The prin­ci­ples evolved by this Court in this behalf may be suit­ably sum­ma­rized as under : (i) The Court in exer­cise of pow­ers under Art. 32 and Art. 226 of the Con­sti­tu­tion of India can enter­tain a peti­tion filed by any inter­ested per­son in the wel­fare of the peo­ple who is in a dis­ad­van­taged posi­tion and, thus, not in a posi­tion to knock the doors of the Court.

 

The Court is con­sti­tu­tion­ally bound to pro­tect the fun­da­men­tal rights of such dis­ad­van­taged peo­ple so as to direct the State to ful­fill its con­sti­tu­tional promises. (See S. P. Gupta v. Union of India (1981 (Supp) SCC 87), People’s Union for Demo­c­ra­tic Rights and oth­ers v. Union of India (1982) 2 SCC 494; Band­hua Mukti Mor­cha v. Union of India and oth­ers (1984) 3 SCC 161 and Janata Dal v. H. S. Chowd­hary and oth­ers (1992) 4 SCC 305).

 

(ii) Issue of pub­lic impor­tance, enforce­ment of fun­da­men­tal rights of large num­ber of pub­lic vis-a– vis the con­sti­tu­tional duties and func­tions of the State, if raised, the Court treat a let­ter or a telegram as a pub­lic inter­est lit­i­ga­tion upon relax­ing pro­ce­dural laws as also the law relat­ing to plead­ings. (See Charles Sobraj v. Supdt, Cen­tral Jail, Tihar, New 72 Delhi (1978) 4 SCC 104 and Hus­sainara Kha­toon and oth­ers v.

 

Home Sec­re­tary, State of Bihar (1980) 1 SCC 81).

 

(iii) When­ever injus­tice is meted out to a large num­ber of peo­ple, the Court will not hes­i­tate in step­ping in. Arti­cles 14 and 21 of the Con­sti­tu­tion of India as well as the Inter­na­tional Con­ven­tions on Human Rights pro­vide for rea­son­able and fair trial.

 

Mrs. Maneka San­jay Gandhi and another v. Miss Rani Jeth­malani, AIR 1979 SC 468, it was held : “2. Assur­ance of a fair trial is the first imper­a­tive of the dis­pen­sa­tion of jus­tice and the cen­tral cri­te­rion for the Court to con­sider when a motion for trans­fer is made is not the hyper­sen­si­tiv­ity or rel­a­tive con­ve­nience of a party or easy avail­abil­ity of legal ser­vices or like mini-grievances. Some­thing more sub­stan­tial, more com­pelling, more imper­il­ing, from the point of view of pub­lic jus­tice and its atten­dant, envi­ron­ment, is neces­si­tous if the Court is to exer­cise its power of trans­fer. This is the car­di­nal prin­ci­ple although the cir­cum­stances may be myr­iad and vary from case to case. We have Lo test the petitioner’s grounds on this touch­stone bear­ing in mind the rule that nor­mally the com­plainant has the right to choose any Court hav­ing juris­dic­tion and the accused can­not dic­tate where the case against him should be tried. Even so, the process of jus­tice should not harass the par­ties and from that angle the Court may weigh the cir­cum­stances.” (See also Dwarka Prasad Agar­wal (D) by L.Rs. and another v. B.

 

D. Agar­wal and oth­ers, 2003 (6) Scale 138).

 

(iv) The com­mon rule of locus stand! is relaxed so as to enable the Court to look into the griev­ances com­plained on behalf of the poor, depraved, illit­er­ate and the dis­abled who can­not vin­di­cate the legal wrong or legal injury caused to them for any vio­la­tion of any con­sti­tu­tional or legal right. (See Fer­til­izer Cor­po­ra­tion Kam­gar Union v. Union of India, AIR 1981 SC 344; S. P. Gupta (supra); People’s Union for Demo­c­ra­tic Rights (supra); Dr. D. C. Wad­hwa v. State of Bihar (1987) 1 SCC 378 and Balco Employ­ees’ Union (Regd.) v. Union of India and oth­ers (2002) 2 SCC 333).

 

73 (v) When the Court is prima facie sat­is­fied about vari­a­tion of any con­sti­tu­tional right of a group of peo­ple belong­ing to the dis­ad­van­taged cat­e­gory, it may riot allow the State or the Gov­ern­ment from rais­ing the ques­tion as to the main­tain­abil­ity of the peti­tion. (See Band­hua Mukti Mor­cha (supra)).

 

(vi) Although pro­ce­dural laws apply on PIL cases but the ques­tion as to whether the prin­ci­ples of res judi­cata or prin­ci­ples anal­o­gous thereto would apply depend on the nature of the peti­tion as also facts and cir­cum­stances of the case. (See Rural Lit­i­ga­tion and Enti­tle­ment Kendra v. State of U.P., 1989 Supp (1) SCC 504 and For­ward Con­struc­tion Co. and oth­ers v. Prab­hat Man­dal (Regd.), And­heri and oth­ers (1986) 1 SCC 100).

 

(vii) The dis­pute between two war­ring groups purely in the realm of pri­vate law would not be allowed to be agi­tated as a pub­lic inter­est lit­i­ga­tion. (See Ramsha­ran Autyanuprasi and another v. Union of India and oth­ers, 1989 Supp (1) SCC 251).

 

(viii) How­ever, in an appro­pri­ate case, although the peti­tioner might have moved a Court in his pri­vate inter­est and for redres­sal of the per­sonal griev­ances, the Court in fur­ther­ance of the pub­lic inter­est may treat it nec­es­sary to enquire into the state of affairs of the sub­ject of lit­i­ga­tion in the inter­est of jus­tice. (See Shiv­a­ji­rao Nilangekar Patil v. Dr. Mahesh Mad­hav Gosavi and oth­ers (1987) 1 SCC 227).

 

(ix) The Court in spe­cial sit­u­a­tions may appoint Com­mis­sion, or other bod­ies for the pur­pose of inves­ti­gat­ing into the alle­ga­tions and find­ing out facts. It may also direct man­age­ment of a pub­lic insti­tu­tion taken over by such Committee.

 

(See Band­hua Mukti Mor­cha (supra), Rakesh Chan­dra Narayan v.

 

State of Bihar, 1989 Supp (1) SCC 644 and A. P. Pol­lu­tion Con­trol Board v. M. V. Nayudu (1999) 2 SCC 718) In Sachi­danand Pandey and another v. State of West Ben­gal and oth­ers ((1987) 2 SCC 295), this Court held : “61. It is only when Courts are apprised of gross vio­la­tion of fun­da­men­tal rights by a group or a class action or when basic human rights are invaded or when there are com­plaints of such acts as shock the judi­cial con­science that the Courts, espe­cially this Court, should leave aside pro­ce­dural shack­les and hear such peti­tions and extend its juris­dic­tion under all avail­able pro74 visions for rem­e­dy­ing the hard­ships and mis­eries of the needy, the under­dog and the neglected. I will be sec­ond to none in extend­ing help when such is required. But this does mean that the doors of this Court are always open for any­one to walk in. It is nec­es­sary to have some self-imposed restraint on pub­lic inter­est lit­i­gants.” In Janata Dal v. H. S.Chowdhary and oth­ers (1992) 4 SCC 305, this Court opined .

 

“109. It is thus clear that only a per­son act­ing bona fide and hav­ing suf­fi­cient inter­est in the pro­ceed­ing of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suf­fer­ing from vio­la­tion of their fun­da­men­tal rights but not a per­son for per­sonal gain or pri­vate profit or polit­i­cal motive or any oblique con­sid­er­a­tion. Sim­i­larly, a vex­a­tious peti­tion under the colour of PIL brought before the Court for vin­di­cat­ing any per­sonal griev­ance, deserves rejec­tion at the thresh­old.” The Court will not ordi­nar­ily trans­gress into a pol­icy. It shall also take utmost care not to trans­gress its juris­dic­tion while pur­port­ing to pro­tect the rights of the peo­ple from being violated.

 

Nar­mada Bachao Andolan v. Union of India Paras and oth­ers ((2000) 10 SCC 664), it was held; “229. It is now well set­tled that the Courts, in the exer­cise of their juris­dic­tion, will not trans­gress into the field of policy-decision.

 

Whether to have an infra­struc­tural project or not and what is the type of project to be under­taken and how it has to be exe­cuted, are part of policy-making process and the Courts are ill-equipped to adju­di­cate on a policy-decision so under­taken. The Court, no doubt, has a duty to see that in the under­tak­ing of a deci­sion, no law is vio­lated and people’s fun­da­men­tal rights are not trans­gressed upon except to the extent per­mis­si­ble under the Con­sti­tu­tion. Even then any chal­lenge to such a policy-decision must be before the exe­cu­tion of the project is under­taken. Any delay in the exe­cu­tion of the project means over­run in costs and the deci­sion to under­take a project, If chal­lenged after its exe­cu­tion has com­menced, should be thrown out at the very thresh­old on the ground of laches if the peti­tioner had the knowl­edge of such a deci­sion and could have approached the Court at that time. Just because a peti­tion is termed 75 as a PIL does not mean that ordi­nary prin­ci­ples applic­a­ble to lit­i­ga­tion will not apply. Laches is one of them.

 

232. While pro­tect­ing the rights of the peo­ple from being vio­lated in any man­ner utmost care has to be taken that the Court does not trans­gress its juris­dic­tion. There is, in our con­sti­tu­tional frame­work a fairly clear demar­ca­tion of pow­ers. The Court has come down heav­ily when­ever the exec­u­tive has sought to impinge upon the Court’s juris­dic­tion.” (x) The Court would ordi­nar­ily not step out of the known areas of judi­cial review. The High Courts although may pass an order for doing com­plete jus­tice to the par­ties, it does not have a power akin to Art. 142 of the Con­sti­tu­tion of India.

 

(xi) Ordi­nar­ily the High Court should not enter­tain a writ peti­tion by way of Pub­lic Inter­est Lit­i­ga­tion ques­tion­ing con­sti­tu­tion­al­ity or valid­ity of a statute or a Statu­tory Rule.

 

In M. C. Mehta v. Kamal Nath ((2000) 6 SCC 213, it was held : “20. The scope of Art. 142 was con­sid­ered in sev­eral deci­sions and recently in Supreme Court Bar Asso­ci­a­tion v. Union of India (1998) 4 SCC 409 by which the deci­sion of this Court in Vinay Chan­dra Mishra, Re (1995) 2 SCC 584 was partly over­ruled, it was held that the ple­nary pow­ers of this Court under Art. 142 of the Con­sti­tu­tion are inher­ent in the Court and are “COMPLEMENTARY” to those pow­ers which are specif­i­cally con­ferred on the Court by var­i­ous statutes. This power exists as a sep­a­rate and inde­pen­dent basis of juris­dic­tion apart from the statutes. The Court fur­ther observed that though the pow­ers con­ferred on the Court by Art. 142 are cura­tive in nature, they can­not be con­strued as pow­ers which autho­rise the Court to ignore the sub­stan­tive rights of a lit­i­gant. The Court fur­ther observed that this power can­not be used to “sup­plant” sub­stan­tive law applic­a­ble to the case or cause under con­sid­er­a­tion of the Court. Arti­cle 142, even with the width of its ampli­tude, can­not be used to build a new edi­fice where none existed ear­lier, by ignor­ing express statu­tory pro­vi­sions deal­ing with a sub­ject and thereby achieve some­thing indi­rectly which can­not be achieved directly.” (See also Supreme Court Bar Asso­ci­a­tion v. Union of India (1998) 4 SCC 409).

 

76 This Court in Balco Employ­ees Union (Regd.) (supra) suc­cinctly opined: “Pub­lic inter­est lit­i­ga­tion, or PIL as it is more com­monly known, entered the Indian judi­cial process in 1970. It will not be incor­rect to say that it is pri­mar­ily the Judges who have inno­vated this type of lit­i­ga­tion as there was a dire need for it. At i that stage, it was intended to vin­di­cate pub­lic inter­est where fun­da­men­tal and other rights of the peo­ple who were poor, igno­rant or in socially or eco­nom­i­cally dis­ad­van­ta­geous posi­tion and were unable to seek legal redress were required to be espoused. PIL was not meant to be adver­sar­ial in nature and was to be a co-operative and col­lab­o­ra­tive effort of the par­ties and the Court so as to secure jus­tice for the poor and the weaker sec­tions of the com­mu­nity who were not in a posi­tion to pro­tect their own interests.

 

Pub­lic inter­est lit­i­ga­tion was intended to mean noth­ing more than what words them­selves said viz. “lit­i­ga­tion in the inter­est of the pub­lic.” While PIL ini­tially was invoked mostly in cases con­nected with the relief to the peo­ple and the weaker sec­tions of the soci­ety and in areas where there was vio­la­tion of human rights under Art. 21, but with the pas­sage of time, peti­tions have been enter­tained in other spheres. Prof.

 

S. B. Sathe has sum­marised the extent of the juris­dic­tion which has now been exer­cised in the fol­low­ing words : “PIL may, there­fore, be described as sat­is­fy­ing one or more of the fol­low­ing para­me­ters. These are not exclu­sive but merely descrip­tive : — Where the con­cerns under­ly­ing a peti­tion are not indi­vid­u­al­ist but are shared widely by a large num­ber of peo­ple (bonded labour, under-trial pris­on­ers, prison inmates).

 

- Where the affected per­sons belong to the dis­ad­van­taged sec­tions of soci­ety (women, chil­dren, bonded labour, unor­gan­ised labour etc.).

 

- Where judi­cial law mak­ing is nec­es­sary to avoid exploita­tion (inter­coun­try adop­tion, the edu­ca­tion of the chil­dren of the prostitutes).

 

77 - Where judi­cial inter­ven­tion is nec­es­sary for the pro­tec­tion of the sanc­tity of demo­c­ra­tic insti­tu­tions (inde­pen­dence of the judi­ciary, exis­tence of griev­ances redres­sal forums).

 

- Where admin­is­tra­tive deci­sions related to devel­op­ment are harm­ful to the envi­ron­ment and jeop­ar­dize people’s right to nat­ural resources such as air or water.” There is, in recent years, a feel­ing which is not with­out any foun­da­tion that pub­lic inter­est lit­i­ga­tion is now tend­ing to become pub­lic­ity inter­est lit­i­ga­tion or pri­vate inter­est lit­i­ga­tion and has a ten­dency to be counterproductive.

 

PIL is’ not a pill or a panacea for all wrongs. It was essen­tially meant to pro­tect basic human rights of the weak and the dis­ad­van­taged and was a pro­ce­dure which was inno­vated where a pub­lic spir­ited per­son files a peti­tion in effect on behalf of such per­sons who on account of poverty, help­less­ness or eco­nomic and social dis­abil­i­ties could not approach the Court for relief. There, have been, in recent times, increas­ingly instances of abuse of PIL. There­fore, there is a need to re-emphasise the para­me­ters within which PIL can be resorted to by a peti­tioner and enter­tained by the Court. This aspect has come up for con­sid­er­a­tion before this Court and all we need to do is to reca­pit­u­late and reem­pha­sise the same.” We do not intend to say that the dicta of this Court in Balco Employ­ees’ Union (supra) con­tains the last words. But the same may be con­sid­ered to be in the nature of guide­lines for enter­tain­ing pub­lic inter­est litigation.

 

Inci­den­tally, on admin­is­tra­tive side of this Court, cer­tain guide­lines have been issued to be fol­lowed for enter­tain­ing Letters/ Peti­tions received by this Court as Pub­lic Inter­est Litigation.

 

We do not intend to lay down any strict rule as to the scope and extent of Pub­lic Inter­est Lit­i­ga­tion, as each case has to be judged on its own mer­its. Fur­ther­more, dif­fer­ent prob­lems may have to be dealt with dif­fer­ently.” 78 The Hon’ble Apex Court has explained the nature and scope of pub­lic inter­est lit­i­ga­tion in Ashok Kumar Pandey ver­sus State of W.B., (2004) 3 SCC 349 as under:- “It is nec­es­sary to take note of the mean­ing of expres­sion ‘pub­lic inter­est lit­i­ga­tion’. In Strouds Judi­cial Dic­tio­nary, Vol­ume 4 (IV Edi­tion), ‘Pub­lic Inter­est’ is defined thus: “Pub­lic Inter­est (1) a mat­ter of pub­lic or gen­eral inter­est does not mean that which is inter­est­ing as grat­i­fy­ing curios­ity or a love of infor­ma­tion or amuse­ment but that in which a class of the com­mu­nity have a pecu­niary inter­est, or some inter­est by which their legal rights or lia­bil­i­ties are affected.” In Black’s Law Dic­tio­nary (Sixth Edi­tion), “pub­lic inter­est” is defined as fol­lows : “Pub­lic Inter­est some­thing in which the pub­lic, or some inter­est by which their legal rights or lia­bil­i­ties are affected. It does not mean any­thing the par­tic­u­lar local­i­ties, which may be affected by the mat­ters in ques­tion. Inter­est shared by national gov­ern­ment.…” Pub­lic inter­est lit­i­ga­tion is a weapon which has to be used with great care and cir­cum­spec­tion and the judi­ciary has to be extremely care­ful to see that behind the beau­ti­ful veil of pub­lic inter­est an ugly pri­vate mal­ice, vested inter­est and/or pub­lic­ity seek­ing is not lurk­ing. It is to be used as an effec­tive weapon in the armory of law for deliv­er­ing social jus­tice to the cit­i­zens. The attrac­tive brand name of pub­lic inter­est lit­i­ga­tion should not be used for sus­pi­cious prod­ucts of mis­chief. It should be aimed at redres­sal of gen­uine pub­lic wrong or pub­lic injury and not pub­lic­ity ori­ented or founded on per­sonal vendetta. As indi­cated above, Court must be care­ful to see that a body of per­sons or mem­ber of pub­lic, who approaches the court is act­ing bona fide and not for per­sonal gain or pri­vate motive or polit­i­cal moti­va­tion or other oblique con­sid­er­a­tion. The Court must not allow its process to be abused for oblique con­sid­er­a­tions. Some per­sons with vested inter­est indulge in the pas­time of med­dling with 79 judi­cial process either by force of habit or from improper motives. Often they are actu­ated by a desire to win noto­ri­ety or cheap pop­u­lar­ity. The peti­tions of such busy bod­ies deserve to be thrown out by rejec­tion at the thresh­old, and in appro­pri­ate cases with exem­plary costs.” The prin­ci­ples explained in Ashok Panday’s case have been reit­er­ated in Dr. B. Singh ver­sus Union of India and Oth­ers, (2004) 3 SCC 363.

 

The Hon’ble Supreme Court has held in Indian Banks’ Asso­ci­a­tion, Bom­bay and Oth­ers ver­sus Devkala Con­sul­tancy Ser­vice and Oth­ers, (2004) 11 SCC 1 that in an appro­pri­ate case, whether the peti­tioner might have moved a Court in his pri­vate inter­est and for redres­sal of his per­sonal griev­ance, the Court in fur­ther­ance of pub­lic inter­est may treat it a neces­sity to enquire into the state of affairs of the sub­ject of lit­i­ga­tion in the inter­est of jus­tice. The Hon’ble Supreme Court has fur­ther has fur­ther held that a pri­vate inter­est case can also be treated as pub­lic inter­est case. Their Lord­ships have held as under:- “The writ peti­tioner before the High Court was a firm of the Char­tered Accoun­tant. As an expert in accoun­tancy and audit­ing, it must have come across sev­eral cases where its client had to pay a higher amount of inter­est to the banks pur­suant to or in fur­ther­ance of the impugned action of the appel­lants. By rea­son of such an action on the part of the appel­lants as also the Reserve Bank of India, as noticed here­in­be­fore, the cit­i­zens of India had to pay a higher amount of tax as also a higher amount of inter­est for no fault on their part. The same had been recov­ered from them with­out any author­ity of law. While enter­tain­ing a pub­lic inter­est lit­i­ga­tion, this Court in exer­cise of its juris­dic­tion under Art. 32 of the Con­sti­tu­tion of India and the High Courts under Art. 226 thereof are enti­tled to enter­tain a peti­tion moved by a per­son hav­ing knowl­edge in the subject-matter of Us and, thus, hav­ing an inter­est therein as con­tra dis­tin­guished from a busy body, is the wel­fare of the peo­ple. The rule of locus has been relaxed by the Courts for such pur­poses with a view to enable a cit­i­zen of India to approach the Courts to vin­di­cate legal injury or legal wrong caused to 80 a sec­tion of peo­ple by way of vio­la­tion of any statu­tory or con­sti­tu­tional right.” In view of the plead­ings of the par­ties and after tak­ing into con­sid­er­a­tion the sub­mis­sions of the par­ties, we are of the con­sid­ered opin­ion that this peti­tion can be termed as pub­lic inter­est lit­i­ga­tion for the enforce­ment and pro­tec­tion of the fun­da­men­tal rights of the peti­tion­ers as well as co-villagers, who had been divested of their lands in the year 1974. The peti­tion has been pri­mar­ily filed seek­ing direc­tion to the respondent-State to return the lands of the peti­tion­ers as well as the lands of the co-villagers after the amend­ment car­ried out in the Prin­ci­pal Act in the year 2001.

3. Whether the present writ peti­tion suf­fers from the vice of delay and laches and neg­li­gence on the part of the peti­tion­ers? The peti­tion­ers have assailed the vires of Sec­tion 8-A inserted in the Prin­ci­pal Act by way of Act no.18 of 1981. The peti­tion­ers were deprived of their land on the basis of the Prin­ci­pal Act which received the pres­i­den­tial assent on 9.8.1974. The peti­tion­ers sub­mis­sion is that term ‘devel­op­ment’ in Sec­tion 8-A will mean only if it is car­ried out towards the agri­cul­tural pur­suits in fur­ther­ance of the main objec­tive of the Prin­ci­pal Act and term ‘devel­op­ment’ will not include grant of lease for the pur­pose of min­ing. The peti­tion­ers had been returned land mea­sur­ing 4276.01 bighas but the remain­ing land mea­sur­ing 1338.03 bighas has not been returned to them on the pre­text that the same had been used by the State by grant­ing it on lease for the pur­pose of min­ing activ­i­ties. The peti­tion raises ques­tions of great con­sti­tu­tional and pub­lic impor­tance and are required to be gone into by this Court being the pro­tec­tor of the con­sti­tu­tional and legal rights of the cit­i­zens of India.

Ms. Jyot­sna Rewal Dua learned coun­sel appear­ing for the peti­tion­ers sub­mit­ted that ini­tially the vires of the Act included in the 9^th sched­ule could be assailed only on the lim­ited ground as per the law laid down by the Hon’ble 81 Supreme Court in Waman Rao’s case AIR 1981 SC 271 but after the lat­est judg­ment of the Hon’ble Supreme Court in Lr.Coelho(dead) by LRs. v. State of T.N.,(2007)2 SCC-1 the vires of the Act can be chal­lenged if it is viola­tive of the rights enu­mer­ated in Part-III of the Con­sti­tu­tion of India. The State has not taken the objec­tion with regard to delay and laches. It is only the respon­dent No.3 who had taken up the plea of delay and laches in reply to the petition.

We are of the opin­ion that there is no inor­di­nate delay in chal­leng­ing the vires of Sec­tion 8-A of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 as well as action of the respon­dent State for not return­ing their lands to which they are enti­tled as per Act No.20 of 2001.This peti­tion has been admit­ted after tak­ing into con­sid­er­a­tion the con­sti­tu­tional and legal issues involved in this peti­tion and we are not inclined to dis­miss the same on the tech­ni­cal­i­ties of delay and latches, more par­tic­u­larly when the peti­tion­ers are seek­ing enforce­ment of their con­sti­tu­tional and legal rights and they belong to the lower strata of the society.

The Hon’ble Supreme Court has enu­mer­ated the law with regard to delay and laches in the fol­low­ing pro­nounce­ments: The Hon’ble Supreme Court has held in Ram­chan­dra Shankar Deod­har and oth­ers v. The State of Maha­rash­tra and oth­ers, (1974)1 SCC 317 that for the enforce­ment and pro­tec­tion of fun­da­men­tal rights the relief can­not be refused solely on the ground of laches, delay or the like. Their Lord­ships have held as under: “The first pre­lim­i­nary objec­tion raised on behalf of the respon­dents was that the peti­tion­ers were guilty of gross laches and delay in fil­ing the peti­tion. The divi­sional cadres of Mamlatdars/Tehsildars were cre­ated as far back as 1^st Novem­ber, 1956 by the Gov­ern­ment Res­o­lu­tion of that date, and the pro­ce­dure far mak­ing pro­mo­tion to the posts of Deputy Col­lec­tor on the basis of divi­sional select lists, which was a nec­es­sary con­se­quence of the cre­ation of the divi­sional cadre of Mamlatdars/Tehsildars, had been in oper­a­tion for a long num­ber 82 of years, at any rate from 7^th April, 1961, and the Rules of 30^th July, 1959 were also given effect to since the date of their enact­ment and yet the peti­tioner did not file the peti­tion until 14^th July, 1969. There was a delay of more than ten or twelve years in fil­ing the peti­tion since the accrual of the cause of com­plaint, and this delay, con­tended the respon­dents, was suf­fi­cient to dis­en­ti­tle the peti­tion­ers to any relief in a peti­tion under Art. 32 of the Con­sti­tu­tion. We do not think this con­tention should pre­vail with us. In the first place, it must be remem­bered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of prac­tice based on sound and proper exer­cise of dis­cre­tion, and there is no invi­o­lable rule that when­ever there is delay, the court must nec­es­sar­ily refuse to enter­tain the peti­tion. Each case must depend on its own facts. The ques­tion, as pointed out by Hiday­at­ul­lah, C. J., in Tilockc­hand Motic­hand v. H. B. Mun­shi, (1969) 2 SCR 824 = (AIR 1970 SC 898) “is one dis­cre­tion for this Court to fol­low from case to case. There is no lower limit and there is no upper limit.…It will all depend on what the breach of the Fun­da­men­tal Right and the rem­edy claimed are and how the delay arose.” Here the peti­tion­ers were informed by the Com­mis­sioner, Aurangabad Divi­sion, by his let­ter dated 18^th Octo­ber, 1960 and also by the then Sec­re­tary of the Rev­enue Depart­ment in Jan­u­ary 1961 that the rules of recruit­ment to the posts of Deputy Col­lec­tor in the reor­gan­ised State of Bom­bay had not yet been uni­fied, and that the peti­tion­ers con­tin­ued to be gov­erned by the rules of Ex-Hyderabad State and the Rules of 30^th July, 1959 had no appli­ca­tion to them. The peti­tion­ers were, there­fore, jus­ti­fied in pro­ceed­ing on the assump­tion that there were no uni­fied rules of recruit­ment to the posts of Deputy Col­lec­tor and the pro­mo­tions that were being made by the State Gov­ern­ment were only pro­vi­sional, to be reg­u­larised when uni­fied rules of recruit­ment were made. It was only when the peti­tion in Kapoor’s case was decided by the Bom­bay High Court that the peti­tion­ers came to know that it was the case of the State Gov­ern­ment in that peti­tion — and that case was accepted by the Bom­bay High Court — that the Rules of 30^th July, 1959 were the uni­fied rules of recruit­ment to the posts of Deputy 83 Col­lec­tor applic­a­ble through­out the reor­gan­ised State of Bom­bay. The peti­tion­ers there­after did not lose any time in fil­ing the present peti­tion. More­over, what is chal­lenged in the peti­tion is the valid­ity of the pro­ce­dure for mak­ing pro­mo­tions to the posts of Deputy Col­lec­tor — whether it is viola­tive of the equal oppor­tu­nity clause — and since this pro­ce­dure is not a thing of the past, but is still being fol­lowed by the State Gov­ern­ment, it is but desir­able that its con­sti­tu­tion­al­ity should be adjudged when the ques­tion has come before the Court at the instance of par­ties prop­erly aggrieved by it. It may also be noted that the prin­ci­ple on which the Court pro­ceeds in refus­ing relief to the peti­tioner on ground of laches or delay is that the rights which have accrued to oth­ers by rea­son of the delay in fil­ing the peti­tion should not be allowed to be dis­turbed unless there is rea­son­able expla­na­tion for the delay. This prin­ci­ple was stated in the fol­low­ing terms by Hiday­at­ul­lah, C. J., in (1969 2 SCR 824 = (AIR 1970 SC 898): “The party claim­ing Fun­da­men­tal Rights must move the Court before other rights come into exis­tence. The action of courts can­not harm inno­cent par­ties if their rights emerge by rea­son of delay on the part of the per­son mov­ing the Court.” Sikri, J., (as the then was), also re-stated the same prin­ci­ple in equally felic­i­tous lan­guage when he said in R. N. Bose .v Union of India, (1970) 2 SCR 697 = (AIR 1970 SC 470): “It would be unjust to deprive the respon­dents of the rights which have accrued to them.

 

Each per­son ought to be enti­tled to sit back and con­sider that his appoint­ment and pro­mo­tion effected a long time ago would not be set aside after the lapse of a num­ber of years.” Here, as admit­ted by the State Gov­ern­ment in para­graph 55 of the affi­davit in reply, all pro­mo­tions that have been made by the State Gov­ern­ment are pro­vi­sional and the posi­tion has not been crys­tallised to the prej­u­dice of the peti­tion­ers. No rights have, there­fore, accrued in favour of oth­ers by rea­son of the delay in fil­ing the peti­tion. The pro­mo­tions being pro­vi­sional, they have not con­ferred any rights on those pro­moted and they are by their very nature liable to be set at naught, if the cor­rect legal posi­tion, as finally deter­mined, so requires. We were also told by the learned coun­sel for the 84 peti­tion­ers, and that was not con­tro­verted by the learned coun­sel appear­ing on behalf of the State Gov­ern­ment, that even if the peti­tion were allowed and the reliefs claimed by the peti­tion­ers granted to them, that would not result in the rever­sion of any Deputy Col­lec­tor or offi­ci­at­ing Deputy Col­lec­tor to the post of Mamlatdar/Tehsildar; the only effect would be merely to dis­turb their inter se senior­ity as offi­ci­at­ing Deputy Col­lec­tors or as Deputy Col­lec­tors More­over, it may be noticed that the claim for enforce­ment of the fun­da­men­tal right of equal oppor­tu­nity under Art. 16 is itself a fun­da­men­tal right guar­an­teed under Arti­cle 32 and this Court which has been assigned that role of a sen­tinel on the qui vive for pro­tec­tion of the fun­da­men­tal rights can­not eas­ily allow itself to be per­suaded to refuse relief solely of the jujune ground of laches, delay or the like.” Their Lord­ships of the Hon’ble Supreme Court in H.D. Vora v. State of Maha­rash­tra and oth­ers, (1984) 2 SCC 337 in view of valid and strong ground of chal­lenge did not dis­miss the peti­tion on the pre­lim­i­nary point of laches. Their Lord­ships have held as under: “But it was con­tended on behalf of the appel­lant that even if the order of req­ui­si­tion was invalid as hav­ing been made for a pur­pose other than a pub­lic pur­pose, the 3^rd respon­dent was not enti­tled to chal­lenge the same after a lapse of over 30 years and the writ peti­tion should there­fore have been dis­missed by the High Court. Now if the only ground on which the order of req­ui­si­tion was chal­lenged in the writ peti­tion was that it was not made for a pub­lic pur­pose and was there­fore void, per­haps it might have been pos­si­ble to suc­cess­fully repel this ground of chal­lenge by rais­ing an objec­tion that the High Court should not have enter­tained the writ peti­tion chal­leng­ing the order of req­ui­si­tion after a lapse of over 30 years. But we find that there is also another ground of chal­lenge urged on behalf of the 3^rd respon­dent and that is a very for­mi­da­ble ground to which there is no answer. The argu­ment urged under this ground of chal­lenge was that an order of req­ui­si­tion is by its very nature tem­po­rary in char­ac­ter and it can­not endure for an indef­i­nite period of time and the order of req­ui­si­tion in the present case 85 there­fore ceased to be valid and effec­tive after the expi­ra­tion of a rea­son­able period of time and that it could not, under any cir­cum­stances, con­tinue for a period of about 30 years and hence it was liable to be quashed and set aside or in any event the State Gov­ern­ment was bound to revoke the same and to dereq­ui­si­tion the flat. This con­tention has, in our opin­ion, great force and must be sus­tained. There is a basic and fun­da­men­tal dis­tinc­tion recog­nised by law between req­ui­si­tion and acqui­si­tion. The Con­sti­tu­tion itself in Entry 42 of List III of the Sev­enth Sched­ule makes a dis­tinc­tion between acqui­si­tion and req­ui­si­tion­ing of prop­erty. The orig­i­nal Art. 31 clause (2) of the Con­sti­tu­tion also recog­nised this dis­tinc­tion between com­pul­sory acqui­si­tion and req­ui­si­tion­ing of prop­erty. The two con­cepts, one of req­ui­si­tion and the other of acqui­si­tion are totally dis­tinct and inde­pen­dent. Acqui­si­tion means the acquir­ing of the entire title of the expro­pri­ated owner what­ever the nature and extent of that title may be. The entire bun­dle of rights which was vested in the orig­i­nal holder passes on acqui­si­tion to the acquirer leav­ing noth­ing to the for­mer. Vide : Obser­va­tions of Mukher­jee, J. in Charanjitlal’s case 1950 SCR 869 : (AIR 1951 SC 41). The con­cept of acqui­si­tion has an air of per­ma­nence and final­ity in that there is trans­fer­ence of the title of the orig­i­nal holder to the acquir­ing author­ity. But the con­cept of req­ui­si­tion involves merely tak­ing of “domain or con­trol over prop­erty with­out acquir­ing rights of own­er­ship” and must by its very nature be of tem­po­rary, dura­tion. If req­ui­si­tion­ing of prop­erty could legit­i­mately con­tinue for an indef­i­nite period of time, the dis­tinc­tion between req­ui­si­tion and acqui­si­tion would tend to become blurred, because in that event for all prac­ti­cal pur­poses the right to pos­ses­sion and enjoy­ment of the prop­erty which con­sti­tutes a major con­stituent ele­ment of the right of own­er­ship would be vested indef­i­nitely with­out any lim­i­ta­tion of time in the req­ui­si­tion­ing author­ity and it would be pos­si­ble for the author­ity to sub­stan­tially take over the prop­erty with­out acquir­ing it and pay­ing full mar­ket value as com­pen­sa­tion. under the Land Acqui­si­tion Act, 1894. We do not think that the gov­ern­ment can under the guise of req­ui­si­tion con­tin­ued for an indef­i­nite period of time in sub­stance acquire the prop­erty, 86 because that would be a fraud on the power con­ferred on the gov­ern­ment. If the gov­ern­ment wants to take over the prop­erty for an indef­i­nite period of time, the gov­ern­ment must acquire the prop­erty but it can­not use the power of req­ui­si­tion for achiev­ing that object. The power of req­ui­si­tion is exer­cis­able by the gov­ern­ment only for a pub­lic pur­pose which is of a tran­si­tory char­ac­ter. If the pub­lic pur­pose for which the premises we required is of a peren­nial or per­ma­nent char­ac­ter from the very incep­tion, no order can be passed req­ui­si­tion­ing the premises.

 

and in such a case the order of req­ui­si­tion, if passed, would be a fraud upon the statute, for the gov­ern­ment would be req­ui­si­tion­ing the premises when really speak­ing they want the premises for acqui­si­tion, the object of tak­ing the premises being not tran­si­tory but per­ma­nent in char­ac­ter. Where the pur­pose for which the premises are required is of such a char­ac­ter that from the very incep­tion it can never be served by req­ui­si­tion­ing the premises but can be achieved only by acquir­ing the prop­erty which would be the case where the pur­pose is of a per­ma­nent char­ac­ter or likely to sub­sist for an indef­i­nite period of time, the gov­ern­ment may acquire the premises but it cer­tainly can­not req­ui­si­tion the premises and con­tinue the req­ui­si­tion­ing indef­i­nitely. Here in the present case the order of req­ui­si­tion was made as for back as 9^th April 1951 and even if it was male for hous­ing a home­less per­son and the appel­lant at that time fell within the cat­e­gory of home­less per­son, it can­not be allowed to con­tinue for much an inor­di­nately long period as thirty years.

 

We must there­fore hold that the order of req­ui­si­tion even if it was valid when made, ceased to be valid and effec­tive after the expi­ra­tion of a rea­son­able period of time it is not nec­es­sary for us to decide what period of time may be regarded as rea­son­able for the con­tin­u­ance of an order of req­ui­si­tion in a given case, because ulti­mately the answer to this ques­tion must depend on the facts and cir­cum­stances of each case but there can be no doubt that what­ever be the pub­lic pur­pose for which an order of req­ui­si­tion is made, the period of time for which the order of req­ui­si­tion may be con­tin­ued can­not be an unrea­son­ably long period such as thirty years. The High Court was, there­fore, in any view of the mat­ter, right in hold­ing that in the cir­cum­stances 87 the order of req­ui­si­tion could not sur­vive any longer and the State Gov­ern­ment was bound to revoke the order of req­ui­si­tion and dereq­ui­si­tion the flat and to take steps to evict the appel­lant from the flat and to hand over vacant pos­ses­sion of it to the 3^rd respon­dent.” Their Lord­ships of the Supreme Court have held in K. Prasad and oth­ers v. Union of India and oth­ers, AIR 1988 SC 535 that hav­ing regard to the com­pli­cated nature of issues involved, the peti­tioner should not be put out of court. Their Lord­ships have held as under: “It has been vehe­mently con­tended for the respon­dents that the writ peti­tion should be dis­missed on the ground of laches. It is true that the peti­tion­ers have come to court some­what belat­edly. Coun­sel urged that they had been under a bona fide impres­sion that they had been con­sid­ered and found inel­i­gi­ble. But this does not appear to be cor­rect. There is on record (at p. 44 of the paper book) a rep­re­sen­ta­tion made by one of them on 20−4−67 from which it seems that he was even then aware that his name had not been con­sid­ered at all because of an inter­pre­ta­tion that the junior posts were lim­ited to 19 only.

 

Nev­er­the­less, they did not take any steps. The Gujarat, Kar­nataka and Maha­rash­tra judg­ments on which the peti­tion­ers rely had been ren­dered in 1978, Jan. 1981 and August 1981 respec­tively but even after that the peti­tion­ers allowed time to lapse. There has there­fore been delay on the part of the peti­tion­ers in com­ing to Court. Nev­er­the­less, hav­ing regard to the com­pli­cated nature of the issues involved, we do not think that the peti­tion­ers should be put out of court on the ground of laches. The posi­tion as it has now emerged is that all 82 eli­gi­ble offi­cers as on 1-10-1966 should be con­sid­ered and not merely some of them. Their suit­abil­ity should be adjudged. If they are not found suit­able, rea­sons should be given which the U.P.S.C.

 

should be able to con­sider. If they are found suit­able a list of such offi­cers should be drawn up with rank­ing given to them in the order of pref­er­ence for the con­sid­er­a­tion of the U.P.S.C.

 

Since this has not been done the recruit­ments have to be set 88 aside and the mat­ter remanded with direc­tions that it should be finalised as per the Recruit­ment Rules and in the light of the above dis­cus­sion.” Their Lord­ships of the Supreme Court have held in M/s Dehri Rohtas Light Rail­way Com­pany Lim­ited v. Dis­trict Board, Bho­jpur and oth­ers, (1992)2 SCC 598 that for deter­min­ing the delay and laches the test is not to phys­i­cal run­ning of time where the cir­cum­stances jus­ti­fy­ing the con­duct exists, the ille­gal­ity which is man­i­fest can­not be sus­tained on the sole ground of laches. Their Lord­ships have held as under: “The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of prac­tice based on sound and proper exer­cise of dis­cre­tion. Each case must depend upon its on facts. It will all depend on what the breach of the fun­da­men­tal right and the rem­edy claimed are and how the delay arose. The prin­ci­ple on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to oth­ers by rea­son of the delay in fil­ing the peti­tion should not be allowed to be dis­turbed unless there is rea­son­able expla­na­tion for the delay. The real test to deter­mine delay in such cases is that the peti­tioner should come to the writ Court before a par­al­lel right is cre­ated and that the lapse of time is not attrib­ut­able to any laches or neg­li­gence. The test is not to phys­i­cal run­ning of time. Where the cir­cum­stances jus­ti­fy­ing the con­duct exists, the ille­gal­ity which is man­i­fest can­not be sus­tained on the sole ground of laches. The deci­sion in Tir­lok Chand (AIR 1970 SC 898) (supra) relied on is dis­tin­guish­able on the facts of the present case. The levy if based on the net prof­its of the rail­way under­tak­ing was beyond the author­ity and the ille­gal nature of the same has been ques­tioned though belat­edly in the pend­ing pro­ceed­ings after the pro­nounce­ment of the High Court in the mat­ter relat­ing to the sub­se­quent years. That being the case, the claim of the appel­lant can­not be turned down on the sole ground of delay.

 

We are of the opin­ion that the High Court was wrong in dis­miss­ing the writ peti­tion in lim­ine and refus­ing to grant the 89 relief sought for. We how­ever agree that the suit has been rightly dis­missed.” Accord­ingly we hold that there is no neg­li­gence, laches or acqui­es­cence on the part of the peti­tion­ers as may dis­en­ti­tle them to the grant of relief.

4. Whether respon­dents No.4 to 329 could waive or barter away their fun­da­men­tal rights after pass­ing of the 2001 Act? The Con­sti­tu­tion Bench of the Hon’ble Supreme Court has held in Olga Tel­lis and oth­ers v. Bom­bay Munic­i­pal Cor­po­ra­tion and oth­ers, AIR 1986 SC 180 that prin­ci­ples of waiver or estop­pel are not applic­a­ble with regard to fun­da­men­tal rights. Their Lord­ships have held as under : “It is not pos­si­ble to accept the con­tention that the peti­tion­ers are estopped from set­ting up their fun­da­men­tal rights as a defence to the demo­li­tion of the huts put up by them on pave­ments or parts of pub­lic roads. There can be no estop­pel against the Con­sti­tu­tion. The Con­sti­tu­tion is not only the para­mount law of the land but, it is the source and sus­te­nance of all laws. Its pro­vi­sions are con­ceived in pub­lic inter­est and are intended to serve a pub­lic pur­pose. The doc­trine of estop­pel is based on the prin­ci­ple that con­sis­tency in word and action imparts cer­tainty and hon­esty to human affairs. If a per­son makes a rep­re­sen­ta­tion to another, on the faith of which the lat­ter acts to his prej­u­dice, the for­mer can­not resile from the rep­re­sen­ta­tion made by him. He must make it good. This prin­ci­ple can have no appli­ca­tion to rep­re­sen­ta­tions made regard­ing the asser­tion or enforce­ment of fun­da­men­tal rights.

 

For exam­ple, the con­ces­sion made by a per­son that he does not pos­sess and would not exer­cise his right to free speech and expres­sion or the right to move freely through­out the ter­ri­tory of India can­not deprive him of those con­sti­tu­tional rights, any more than a con­ces­sion that a per­son has no right of per­sonal lib­erty can jus­tify his deten­tion con­trary to the terms of Arti­cle 22 of the Con­sti­tu­tion. Fun­da­men­tal rights are undoubt­edly con­ferred by the Con­sti­tu­tion upon indi­vid­u­als which have to be asserted and 90 enforced by them, if those rights are vio­lated. But the high pur­pose which the Con­sti­tu­tion seeks to achieve by con­fer­ment of fun­da­men­tal rights is not only to ben­e­fit indi­vid­u­als but to secure the larger inter­ests of the com­mu­nity. The Pre­am­ble of the Con­sti­tu­tion says that India is a demo­c­ra­tic Repub­lic. It is in order to ful­fil the promise of the Pre­am­ble that fun­da­men­tal rights are con­ferred by the Con­sti­tu­tion, some on cit­i­zens like those guar­an­teed by Arti­cles 15, 16, 19, 21 and 29 and, some on cit­i­zens and non-citizens alike, like those guar­an­teed by Arti­cles 14, 21, 22 and 25 of the Con­sti­tu­tion. No indi­vid­ual can barter away the free­doms con­ferred upon him by the Con­sti­tu­tion. A con­ces­sion made by him in a pro­ceed­ing, whether under a mis­take of law or oth­er­wise. that he does not pos­sess or will not enforce any par­tic­u­lar fun­da­men­tal right, can­not cre­ate an estop­pel against him in that or any sub­se­quent proceeding.

 

Such a con­ces­sion, if enforced, would defeat the pur­pose of the Con­sti­tu­tion. Were the argu­ment of estop­pel valid, an allpow­er­ful State could eas­ily tempt an indi­vid­ual to forgo his pre­cious per­sonal free­doms on promise of tran­si­tory, imme­di­ate ben­e­fits., There­fore, notwith­stand­ing the fact that the peti­tion­ers had con­ceded in the Bom­bay High Court that they have no fun­da­men­tal right to con­struct hut­ments on pave­ments and that they will not object to their demo­li­tion after Octo­ber 15, 1981, they are enti­tled to assert that any such action on the part of pub­lic author­i­ties will be in vio­la­tion of their fun­da­men­tal rights.

 

How far the argu­ment regard­ing the exis­tence and scope of the right claimed by the peti­tion­ers is well founded is another mat­ter. But, the argu­ment has to be exam­ined despite the con­ces­sion.” “The plea of estop­pel is closely con­nected with the plea of waiver, the object of both being to ensure bona fides in day-today trans­ac­tions. In Bashesh­war Nath v. Commr. of Income-tax, Delhi, (1959) Supp (1) SCR 528 : (AIR 1959 SC 149), a Con­sti­tu­tion Bench of this Court con­sid­ered the ques­tion whether the fun­da­men­tal rights con­ferred by the Con­sti­tu­tion can be waived. Two mem­bers of the Bench (Das C.J. and Kapoor J.) held that there can be no waiver of the fun­da­men­tal right founded on Arti­cle 14 of the Con­sti­tu­tion. Two oth­ers (N. H.

 

91 Bhag­wati and Subba Rao, JJ.) held that not only could there be no waiver of the right con­ferred by Arti­cle 14, but there could be no waiver of any other fun­da­men­tal right guar­an­teed by Part III of the Con­sti­tu­tion. The Con­sti­tu­tion makes no dis­tinc­tion, accord­ing to the learned Judges, between fun­da­men­tal rights enacted for the ben­e­fit of an indi­vid­ual and those enacted in pub­lic inter­est or on grounds of pub­lic pol­icy.” Sim­i­larly the Apex Court has held in Nar Singh Pal v. Union of India and oth­ers, (2000)3 SCC 588 that the fun­da­men­tal rights can­not be waived nor there can be any estop­pel against exer­cise of fun­da­men­tal rights. Their Lord­ships have held as under: “The Tri­bunal as also the High Court, both appear to have been moved by the fact that the appel­lant had encashed the cheque through which retrench­ment com­pen­sa­tion was paid to him. They intended to say that once retrench­ment com­pen­sa­tion was accepted by the appel­lant, the chap­ter stands closed and it is no longer open to the appel­lant to chal­lenge his retrench­ment. This, we are con­strained to observe, was wholly erro­neous and was not the cor­rect approach. The appel­lant was a casual labour who had attained the “tem­po­rary” sta­tus after hav­ing put in ten years of ser­vice. Like any other employee, he had to sus­tain him­self, or, maybe, his fam­ily mem­bers on the wages he got. On the ter­mi­na­tion of his ser­vices, there was no hope left for pay­ment of salary in future. The retrench­ment com­pen­sa­tion paid to him, which was only a mea­ger amount of Rs.6350/-, was uti­lized by him to sus­tain him­self. This does not mean that he had sur­ren­dered all his con­sti­tu­tional rights in favour of the respon­dents. Fun­da­men­tal Rights under the Con­sti­tu­tion can­not be bartered away. They can­not be com­pro­mised nor can there be any estop­pel against the exer­cise of Fun­da­men­tal Rights avail­able under the Con­sti­tu­tion. As pointed out ear­lier, the ter­mi­na­tion of the appel­lant from ser­vice was puni­tive in nature and was in vio­la­tion of the prin­ci­ples of nat­ural jus­tice and his con­sti­tu­tional rights. Such an order can not be sus­tained. “ 92 In view of the law laid down by the Hon’ble Supreme Court we are of the firm view that nei­ther the peti­tion­ers nor respon­dents No.4 to 329 could barter or waive off their fun­da­men­tal rights. Respon­dents No.4 to 329 who belong to the lower strata of soci­ety have been made to agree by respon­dent No.3 sup­port­ing his ver­sion of the grant of lease in his favour.

5. What is the effect of the amend­ment car­ried out by way of Act No. 18 of 1981 in the Prin­ci­pal Act by adding sec­tion 8-A? By way of Act No.20 of 2001 assented by the Gov­er­nor on 27.9.2001 clause (d) along with the pro­viso has been incor­po­rated in sub sec­tion (2) of sec­tion 3 ret­ro­spec­tively i.e. from 29.8.1974. It is a set­tled rule of inter­pre­ta­tion by now that when a sub­se­quent Act amends ear­lier one in such a way as to incor­po­rate itself or a part of it, into the ear­lier, the ear­lier Act must there­after be read and con­strued (except where that would lead to a repug­nancy, incon­sis­tency or absur­dity) as if the altered words had been writ­ten into the ear­lier act with pen and ink.

Their Lord­ships of the Supreme Court have held in Sham­rao v. Parulekar and oth­ers v. Dis­trict Mag­is­trate, Thana, Bom­bay and oth­ers, Air 1952 SC 324 as under: “The con­struc­tion of an Act which has been amended is now gov­erned by tech­ni­cal rules and we must first be clear regard­ing the proper can­nos of con­struc­tion. The rule is that when a sub­se­quent Act amends an ear­lier one in such a way as to incor­po­rate itself, or a part of itself, into the earlier,the ear­lier Act must there­after be read and con­strued (except where that would lead to a repug­nancy, incon­sis­tency or absur­dity) as if the altered words had been writ­ten into the ear­lier Act with pen and ink and the old words scored out so that there­after there is no need to refer to the amend­ing Act at all. This is the rule in Eng­land : see Craies on Statute Law, 5^th Edi­tion, page 207; it is the law in Amer­ica: see Craw­ford on Statu­tory Con­struc­tion, page 110; and it is the law which the Privy Coun­cil applied to India in ‘KESHORAM PODDAR v. NUNDO LAL MALLICK’ 54 Ind App 152 (PC) at p. 155. Bear­ing this in mind, it will be seen that 93 the Act of 1950 remains the Act of 1950 all the way through even with its sub­se­quent amend­ments. There­fore, the moment the Act of 1952 was passed and sec­tion 2 came into oper­a­tion, the Act of 1950 meant the Act of 1950 as amended by sec­tion 2, that is to say, the Act of 1950 now due to expire on the 1st of Octo­ber 1952.” Their Lord­ship of the Supreme Court have reit­er­ated in Ori­ent Paper and Indus­tries Ltd. and anr. Vs. State of Orissa and oth­ers, 1991 supp. (1) SC 81 the prin­ci­ples laid down in Shah Rao’s case. Their lord­ships have rein­forced the ear­lier prin­ci­ple as under: “We see no sub­stance in the con­tention that a sec­ond noti­fi­ca­tion under Sec­tion 1(3) of Act 22 of 1981 was required to bring into effect the sub­sti­tuted pro­vi­sions intro­duced by Act 4 of 1989. That Act con­tain­ing the deem­ing pro­vi­sions in Sec­tion 1(2) is deemed to have come into force on the date on which Act 22 of 1981 came into force i.e., on Sep­tem­ber 5, 1981 when that Act was noti­fied in the Orissa Gazette. Sec­tion 1(3) of Act 22 of 1981 being the gov­ern­ing pro­vi­sion for bring­ing the statute into force with spe­cific ref­er­ence to par­tic­u­lar pro­duce and par­tic­u­lar areas as from spec­i­fied dates, the statute came into force for spe­cific oper­a­tion in respect of bam­boos I the areas in ques­tion not on Sep­tem­ber 5, 1981, but on Octo­ber 1, 1988, as spec­i­fied in the Noti­fi­ca­tion dated Sep­tem­ber 21, 1988 issued by the Gov­ern­ment of Orissa relat­ing to bam­boos in exer­cise of its pow­ers under Sec­tion 1(3) of the prin­ci­pal Act. The effect of the deem­ing pro­vi­sions in Act 4 of 1989 is to project back­wards the pro­vi­sions of that Amend­ing Act so as to read them into the prin­ci­pal Act (Act 22 of 1981) as if they were part of the prin­ci­pal Act on the date on which it was noti­fied in the Orissa Gazette, i.e., on Sep­tem­ber 5, 1981. The new pro­vi­sions are thus, in the absence of any incon­sis­tency or absur­dity, deemed to have always formed part of the pro­vi­sions orig­i­nally enacted. That being the posi­tion in law, as an inevitable corol­lary, the noti­fi­ca­tion issued under Sec­tion 1(3) is deemed to be applic­a­ble to the prin­ci­pal Act with the sub­se­quently sub­sti­tuted retroac­tive pro­vi­sions writ­ten into it; and, no fur­ther noti­fi­ca­tion 94 under Sec­tion 1(3) in respect of Act 4 of 1989 is, there­fore, required.

 

To recall the words of Lord Asquith in this con­text: “If you are bid­den to treat an imag­i­nary state of affairs as real, you must surely, unless pro­hib­ited from doing so, also imag­ine as real the con­se­quences and inci­dents which if the puta­tive state of affairs had in fact existed, must inevitably have flowed from or accom­pa­nied it … The statute says that you must imag­ine a cer­tain state of affairs; it does not say that hav­ing done so, you must cause or per­mit your imag­i­na­tion to bog­gle when it comes to the inevitable corol­lar­ies of that state of affairs.” To con­tend that a sec­ond noti­fi­ca­tion under Sec­tion 1(3) of Act 22 of 1981 is required to bring Act 4 of 1989 into force is to cause or per­mit one’s imag­i­na­tion to bog­gle.” Thus, the amend­ment car­ried out in the year 2001 restor­ing the land to the peti­tion­ers and co-villagers has to be given full effect by treat­ing the same to be an inte­gral part of the Prin­ci­pal Act since 1974 as if the land of the peti­tion­ers and co-villagers had never been taken over by the State Government.

6. Whether the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion and whether grant­ing lease for min­ing pur­poses falls out side the scope of agrar­ian reform and thus not enti­tled to the pro­tec­tion of Arti­cle 31-A of the Con­sti­tu­tion of India? 9. Whether the Court can read down sec­tion 8-A to avoid strik­ing it down, if it is found viola­tive of Arti­cles 14 and 19 of the Con­sti­tu­tion of India? Since both these ques­tions are inter-linked, the same are taken up together for determination.

To ascer­tain whether the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion or not we 95 may have to advert to the State­ment of Objects and Rea­sons neces­si­tat­ing the intro­duc­tion of the Bill. It is evi­dent from the con­tents of the state­ment of objects and rea­sons that since the Pun­jab Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Reg­u­la­tion) Act, 1961 was not being imple­mented prop­erly by the Pan­chayat in respect of leases, an amend­ment was car­ried out in the Pun­jab Com­mon Lands Vest­ing and Uti­liza­tion (Reg­u­la­tion) Act, 1964 pro­hibit­ing lease in the areas i.e. Kan­gra, Shimla, Una and Nala­garh and inspite of that amend­ment things have not improved and irreg­u­lar­i­ties con­tin­ued to be com­mit­ted by the Pan­chayat in leas­ing out the land. It was to achieve this object that it was con­sid­ered proper to vest the sham­lat land in the State Gov­ern­ment for its proper man­age­ment and uti­liza­tion. The Himachal Pradesh Leg­isla­tive Assem­bly passed the Himachal Pradesh Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 on 11.4.1974. The Act was placed at Ser­ial No.139 of the Schedule-IX, as per 40^th Amend­ment of the Con­sti­tu­tion. The Act received the assent of the Pres­i­dent of India on 9.8.1974 and the same stood pub­lished as Act No.18 of 1974 in Raj­pa­tra Himachal Pradesh Extra­or­di­nary. Sec­tion 2 of the Prin­ci­pal Act 18 of 1974 defines the expres­sion “inhab­i­tant of an estate,” land­less per­son” means a per­son who is hold­ing no land for agri­cul­tural pur­poses, whether as an owner or a ten­ant, earns his liveli­hood prin­ci­pally by man­ual labour on land and intends to take the pro­fes­sion of agri­cul­ture and is capa­ble of cul­ti­vat­ing the land per­son­ally. Clause (h) of Sec­tion 2 defines the word “land” and “pri­vate forests” to have the same mean­ings as assigned to these expres­sions in the H.P. Ceil­ing on Land Hold­ings Act, 1972. Sec­tion 8 of the Prin­ci­pal Act pro­vides that all lands vested in the State Gov­ern­ment under the Act shall be uti­lized for the fol­low­ing pur­poses:- (a) an area not less than fifty per cent of the total area vested in the State Gov­ern­ment under sec­tion 3 of this Act for graz­ing and other com­mon pur­poses of the inhab­i­tants of an estate, and (b) the remain­ing land.- 96 (i) for allot­ment to a land­less per­son or any other eli­gi­ble per­son; or (ii) for allot­ment of site to a hand­i­capped or house­less per­son for the con­struc­tion of a house; under a scheme to be framed by the State Gov­ern­ment by noti­fi­ca­tion in the Offi­cial Gazette and the allot­tee shall pay an amount at the rate of forty-eight times of the land rev­enue and rates and cesses charge­able on the land allot­ted to him under the said scheme, either in lump sum or in six monthly instal­ments not exceed­ing four.” The State has framed Rules called the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Rules 1975. It pro­vides that on receipt of the infor­ma­tion the Col­lec­tor shall start a file for demar­ca­tion of land for graz­ing and com­mon pur­poses and the land to be ear­marked for allotable pool and send the same to the Tehsil Rev­enue Offi­cer for proper demar­ca­tion of the land for graz­ing and com­mon pur­poses and for allotable pool. The per­cent­age of the land to be reserved for graz­ing and com­mon pur­poses is to be fixed in con­sul­ta­tion with the estate right holder keep­ing in view the pro­vi­sions of sec­tion 8. The Tehsil Rev­enue Offi­cer and the Col­lec­tor are to be guided for demar­ca­tion of shami­lat land for the said pur­poses on the fol­low­ing con­sid­er­a­tion: (1) total cat­tle pop­u­la­tion of the estate; (2) the num­ber of eli­gi­ble per­sons in the estate; (3) total acreage of exist­ing cul­ti­vated land exclud­ing area under ille­gal possession/encroachments; (4) the total area of cha­rand lands; (5) the land which is used for com­mon pur­poses like cat­tle ponds, manure pits, sand bihag, kuhls, paths and the land recorded in the kha­tou­nis, of ‘Sharai-am’ and ‘Rafai-am’ etc.etc.

The State Gov­ern­ment had framed the Scheme called the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Scheme, 1975. The detailed pro­ce­dure has been pro­vided under Para 3 of the Scheme for receipt 97 of the appli­ca­tion imme­di­ately after the land is mutated in favour of the State Gov­ern­ment from eli­gi­ble per­sons. The detailed pro­ce­dure for prepa­ra­tion of state­ment of land avail­able for allot­ment and the pro­ce­dure for allot­ment of land from the allotable pool has been pro­vided under paras 4 and 5. Para 8 of the Scheme pro­vides for deliv­ery of pos­ses­sion and para 9 pro­vides con­di­tions of allotment.

The State has also framed the Himachal Pradesh .Lease Rules, 1993 in exer­cise of the pow­ers vested under Sec­tion 13 of the Himachal Pradesh, Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 and under Sec­tion 26 of the Himachal Pradesh Ceil­ing on Land Hold­ings Act, 1972. Rule 4 pre­scribes the pur­poses for which the lease may be granted and the max­i­mum limit of grant is pro­vided under Rule 5. Rule 6 pro­vides eli­gi­bil­ity for the grant of land on lease.

It is evi­dent from the objects and rea­sons, the read­ing of the entire Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 and the Rules framed there­un­der, the Himachal Pradesh Vil­lage Com­mon Lands, Vest­ing and Uti­liza­tion Scheme, 1975 as well as Lease Rules, 1993 as amended from time to time that the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is a piece of Agrar­ian Legislation.

The land which had vested in the State has been divided into two parts.

50% of the total area vested in the State Gov­ern­ment under Sec­tion 3 of the Act has been reserved for graz­ing and other com­mon pur­poses for the inhab­i­tants of an estate and the remain­ing for allot­ment to a land­less per­son or any other eli­gi­ble per­son and also for allot­ment of site to hand­i­capped and house­less per­son for the con­struc­tion of a house. The expres­sion ‘other eli­gi­ble per­son’ has been added by Sec­tion 2 of the Himachal Pradesh, Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 1987.

The amend­ment has been car­ried out in the Prin­ci­pal Act of the Himachal Pradesh, Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 by 98 way of Himachal Pradesh, Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 1981 whereby Sec­tion 8-A has been inserted in the Prin­ci­pal Act, namely, Sec­tion 8-A to the fol­low­ing effects: “8-A. Util­i­sa­tion of land for devel­op­ment of the State:- Notwith­stand­ing any­thing con­tained in Sec­tion 8 of the Act, the State Gov­ern­ment may uti­lize any area of the land vested in it under the Act by lease to any per­son or by trans­fer to any Depart­ment of the Gov­ern­ment in the inter­ests of the devel­op­ment of the State, if the State Gov­ern­ment is sat­is­fied that there are suf­fi­cient rea­sons to do so sub­ject to the con­di­tion that land for the pur­poses men­tioned in clause (a) of sub-section (1) of sec­tion 8 in no case shall be less than fifty present of the land vested in the Gov­ern­ment under the Act.

 

Pro­vided that when land is not used by a per­son for the pur­pose for which it has been leased, the lease shall stand ter­mi­nated free from all encum­brances and the Gov­ern­ment shall re-enter on the demised premises and lease money, “if paid to the Gov­ern­ment, shall be for­feited and no per­son shall be enti­tled to any com­pen­sa­tion for any improve­ment made and for any build­ing con­structed thereon.” The vires of sec­tion 8-A have been chal­lenged by the peti­tion­ers inter­alia on the grounds that the same is in con­tra­ven­tion of the Scheme of the Himachal Pradesh Vil­lage Com­mon Lands vest­ing & Uti­liza­tion, Act, 1974.. The basic under­lined prin­ci­ple for the enact­ment of the Himachal Pradesh Vil­lage Com­mon Lands vest­ing & Uti­liza­tion, Act, 1974 is to uplift the per­sons liv­ing in vil­lages by reserv­ing cer­tain por­tion of the land for graz­ing and other com­mon pur­poses and the remain­ing land for allot­ment to the land­less and other eli­gi­ble per­sons. The graz­ing pas­tures have been reserved for the inhab­i­tants of the area for the live stock which is also the main stay of the agri­cul­tural economy.

The remain­ing land is to be allot­ted to the land­less per­sons who before the enact­ment of this act were pri­mar­ily work­ing as farm labour­ers. The enact­ment 99 had made it pos­si­ble for the land­less per­sons to be allot­ted land as per the scheme of the Act for cul­ti­va­tion. Thus the land which has vested in the state under sec­tion 3 of the Act is only to be used pri­mar­ily for agri­cul­tural pur­poses and the same could not be uti­lized for any other pur­pose as per sec­tion 8-A inserted by way of Act No.18 of 1981.

The Hon’ble Supreme Court has held in the fol­low­ing cases that Recitals in Objects and Rea­sons of the enact­ment can be looked into to deter­mine the Will and Pol­icy of the legislature.

The Apex Court has held in Chern Taong Shang and oth­ers v.

 

Com­man­der S.D.Baijal and oth­ers, (1988) 1 SCC 507 that inter­pret­ing a statute the Court has to ascer­tain the will and pol­icy of the leg­is­la­ture as dis­cernible from the object and scheme of the enact­ment and the lan­guage used therein. Their Lord­ships have held as under: “It is per­ti­nent to men­tion that in inter­pret­ing a statute the Court has to ascer­tain the will and pol­icy of the leg­is­la­ture as dis­cernible from the object and scheme of the enact­ment and the lan­guage used therein. Viewed in this con­text it is appar­ent that the said Act has been made with the sole pur­pose of pre­vent­ing poach­ing of fishes by for­eign ves­sels char­tered by Indian cit­i­zens within the exclu­sive eco­nomic zone of India as spec­i­fied in Rule 8(1)(q) of Mar­itime Zones of India Rules as amended in 1982 (1984?) as well as in breach of the pro­vi­sions of the said Act and the terms and con­di­tions of per­mit issued under Sec­tion 5 of the said Act.” The Apex Court in Shashikant Lax­man Kale and another v. Union of India and another, AIR 1990 SC 2114 has held that for deter­min­ing the pur­pose of object of the leg­is­la­tion, it is per­mis­si­ble to look into the cir­cum­stances which pre­vailed at the time when the law was passed and which neces­si­tated the pass­ing of that law and for the lim­ited pur­pose of appre­ci­at­ing the back­ground and the antecedent fac­tual matrix lead­ing to the leg­is­la­tion, it is 100 per­mis­si­ble to look into the State­ment of Objects and Rea­sons of the Bill which actu­ated the step to pro­vide a rem­edy for the then exist­ing mal­ady. Their Lord­ships have held as under: “For deter­min­ing the pur­pose or object of the leg­is­la­tion, it is per­mis­si­ble to look into the cir­cum­stances which pre­vailed at the time when the law was passed and which neces­si­tated the pass­ing of that law. For the lim­ited pur­pose of appre­ci­at­ing the back­ground and the antecedent fac­tual matrix lead­ing to the leg­is­la­tion, it is per­mis­si­ble to look into the State­ment of Objects and Rea­sons of the Bill which actu­ated the step to pro­vide a rem­edy for the then exist­ing mal­ady. In A. Than­gal Kunju Musaliar v. M. Venki­tacha­lam Potti, (1955) 2 SCR 1196: (AIR 1956 SC 246), the State­ment of Objects and Rea­sons was used for judg­ing the rea­son­able­ness of a clas­si­fi­ca­tion made in an enact­ment to see if it infringed or was con­trary to the con­sti­tu­tion. In that deci­sion for deter­min­ing the ques­tion, even affi­davit on behalf of the State of “the cir­cum­stances which pre­vailed at the time when the law there under con­sid­er­a­tion had been passed and which neces­si­tated the pass­ing of that law” was relied on. It was reit­er­ated in State of West Ben­gal v. Union of India, (1964) 1 SCR 371: (AIR 1963 SC 1241) that the State­ment and Objects and Rea­sons accom­pa­ny­ing a Bill, when intro­duced in Par­lia­ment, can be used for ‘the lim­ited pur­pose of under­stand­ing the back­ground and the antecedent state of affairs lead­ing up to the leg­is­la­tion.’ Sim­i­larly, in Pan­nalal Bin­jraj v. Union of India, 1957 SCR 233: (AIR 1957 SC 397) — a chal­lenge to the valid­ity of clas­si­fi­ca­tion was repelled plac­ing reliance on an affi­davit filed on behalf of the Cen­tral Board of Rev­enue dis­clos­ing the true object of enact­ing the impugned pro­vi­sion in the Income-tax Act.” The Apex Court has held in Devadoss(dead) by LRs. and another v.

 

Veera Makali Amman Koil Athalur, AIR 1998 SC 750 that state­ment of objects and rea­sons can be used for under­stand­ing the back­ground, the 101 antecedent state of affairs and the evil sought to be reme­died by the statute.

Their Lord­ships have held as under: “Ques­tion arises nat­u­rally whether the Court can refer to the State­ment of Objects and Rea­sons men­tioned in a Bill when it is placed before the Leg­is­la­ture and even if it is per­mis­si­ble, to what extent the Court can make use of the same. On this aspect, the law is well set­tled. In Narain Kham­man v. Par­gu­man Kumar Jain, (1985) 1 SCC 1 (8) : (AIR 1985 SC 4 ), it was stated that though the State­ment of Objects and Rea­sons accom­pa­ny­ing a leg­isla­tive Bill could not be used to deter­mine the true mean­ing and effect of the sub­stan­tive pro­vi­sions of a statute, it was per­mis­si­ble to refer to the same for the pur­pose of under­stand­ing the back­ground, the antecedent state of affairs, the sur­round­ing cir­cum­stances in rela­tion to the statute, and the evil which the statute sought to rem­edy. (See also Kumar Jagdish Chan­dra Sinha v. Elleen K. Patri­cia D’Sozarie (1995) 1 SCC 164 : (1994 AIR SCW 4770).

 

The Apex Court in Ashok Ley­land Ltd. v. State of T.N. and another, (2004) 3 SCC-1 has taken into con­sid­er­a­tion the State­ment of Objects and Rea­sons of the Cen­tral Sales Tax Act vis-à-vis the rec­om­men­da­tions made by the Law Com­mis­sion while inter­pret­ing Sec­tion 6-A of the Act. Their Lord­ships have held as under: “Hav­ing regard to the State of objects and Rea­sons of the Cen­tral Sales Tax Act vis-à-vis the rec­om­men­da­tions made by the Law Com­mis­sion, as referred to here­in­be­fore, it would appear that Par­lia­ment with a view to bring in expe­di­ency in such a mater so that the dis­pute can be deter­mined as expe­di­tiously as pos­si­ble, amended Sec­tion 6– A. Sec­tion 6 of the Act pro­vides for lia­bil­ity to tax on inter– State sales in terms whereof every dealer is liable to pay tax there­un­der on sales effected by him in the course of inter– State trade or com­merce sub­ject to the excep­tion con­tained in the pro­viso appended thereto. Such tax would be levi­able notwith­stand­ing the fact that no tax is levi­able either on the 102 seller or the pur­chaser under the State tax laws of the appro­pri­ate State if that sale had taken place inside the State.” Sim­i­larly, the Apex Court in Godawat Pan Masala Prod­ucts I.P.Ltd.

 

and another v. Union of India and oth­ers, (2004) 7 SCC 68 has taken into con­sid­er­a­tion the State­ment of objects and Rea­sons as under: “The afore­said inter­nal evi­dence in the statute, by rea­son of the pre­am­ble, and the exter­nal evi­dence in the State­ment of Objects and Rea­sons, indi­cate that Par­lia­ment has evinced its inten­tion to bring out a com­pre­hen­sive enact­ment to deal with tobacco and tobacco prod­ucts. How­ever, the pro­vi­sions of the statute do not sug­gest that Par­lia­ment had con­sid­ered it to be expe­di­ent to ban tobacco or tobacco prod­ucts in pub­lic inter­est or to pro­tect pub­lic health. Act 34 of 2003 passed by Par­lia­ment does not totally ban the man­u­fac­ture of tobacco or tobacco prod­ucts Sec­tion 6 merely pro­hibits sale of cig­a­rettes and tobacco prod­ucts to a per­son under the age of eigh­teen years. There are strin­gent pro­vi­sions made in the Act con­tain­ing the pro­hi­bi­tion of adver­tise­ment of cig­a­rettes and tobacco prod­ucts. Sec­tion 3℗ defines the expres­sion “tobacco prod­ucts” as the prod­ucts spec­i­fied in the Sched­ule. Entry 8 of the Sched­ule to the Act reads “pan masala or any chew­ing mate­r­ial hav­ing tobacco as one of its ingre­di­ents (by what­ever name called).” Thus, pan masala or any chew­ing mate­r­ial hav­ing tobacco is also one of the prod­ucts in respect of which the Act could have imposed a total pro­hi­bi­tion, if Par­lia­ment was so minded. On the other hand, there is only con­di­tional pro­hi­bi­tion of these prod­ucts against sale to per­sons under eigh­teen years of age”.

 

The Hon’ble Supreme Court in the fol­low­ing judg­ments has touched and dis­cussed the expres­sion ‘Agrar­ian Reforms’ The Apex Court has held in (1) Ran­jit Singh and oth­ers (In C.A.No.743 of 1963) (2) Major (now Lt. Col.) Micheal A.R.Skinner and 103 oth­ers (C.A.Nos. 553–554 of 1962) v. The State of Pun­jab and oth­ers, AIR 1965 SC 632 that the scheme of rural devel­op­ment today envis­ages not only equi­table dis­tri­b­u­tion of land so that there is no undue imbal­ance in soci­ety result­ing in a land­less class on the one hand and a con­cen­tra­tion of land in the hands of a few, on the other, but envis­ages also the ris­ing of eco­nomic stan­dards and bet­ter­ing rural health and social con­di­tions. Their Lord­ships have held as under: “The High Court was also right in the view that the pro­posed changes in he sham­lat deh and abadi deh of rural areas were included in the gen­eral scheme of plan­ning of rural areas and the pro­duc­tive uti­liza­tion of vacant and waste lands. The scheme of rural devel­op­ment today envis­ages not only equi­table dis­tri­b­u­tion of land so that there is no undue imbal­ance in soci­ety result­ing in a land­less class on the one hand and a con­cen­tra­tion of land in the hands of a few, on the other, but envis­ages also the ris­ing of eco­nomic stan­dards and bet­ter­ing rural health and social conditions.

 

Pro­vi­sions for the assign­ment of lands to Vil­lage Pan­chayat for the use of the gen­eral com­mu­nity, or for hos­pi­tals, schools, manure pits, tan­ning grounds etc. ensure for the ben­e­fit of rural pop­u­la­tion and must be con­sid­ered to be essen­tial part of the redis­tri­b­u­tion of hold­ings and open lands to which no objec­tion is appar­ently taken. If agrar­ian reforms are to suc­ceed, mere dis­tri­b­u­tion of land to the land­less is not enough. There must be a proper plan­ning of rural econ­omy and con­di­tions and a body like the vil­lage Pan­chayat is best designed to pro­mote rural wel­fare than indi­vid­ual own­ers of small por­tions of lands. Fur­ther, the vil­lage Pan­chayat is an author­ity for pur­poses of Part III as was con­ceded before us and it has the pro­tec­tion of Art. 31-A because of this char­ac­ter even if the tak­ing over of sham­lat deh amounts to acqui­si­tion. In our opin­ion, the High Court was right in decid­ing as it did on this part of the case.

 

104 The Full Bench of Ker­ala High Court has held in V.N. Narayanan Nair and oth­ers Ver­sus State of Ker­ala and oth­ers, AIR 1971 Ker­ala 98 that sec­tion 106 and 106-A which made the spe­cial pro­vi­sions regard­ing leases for com­mer­cial or indus­trial pur­poses and build­ings used by Kudiki­dap­pukars for com­mer­cial or indus­trial pur­poses would appear to be out­side the scope of agrar­ian reform and, there­fore, not enti­tled to pro­tec­tion of Arti­cle 31-A. Their Lord­ships have held as under: “Prima facie sec­tions 106 and 106-A which make spe­cial pro­vi­sions regard­ing leases for com­mer­cial or indus­trial pur­poses and build­ings used by Kudiki­dap­pukars for com­mer­cial or indus­trial pur­poses would appear to be out­side the scope of agrar­ian reform and, there­fore, not enti­tled to pro­tec­tion of Arti­cle 31-A. But here, as in the case of many of the other pro­vi­sions which have been assailed, no peti­tion has made out how he is aggrieved and there­fore we think it nec­es­sary to say any­thing about the valid­ity of these sec­tions.” Jus­tice Mathew has made these obser­va­tions while inter­pret­ing sec­tion 96 of the Agrar­ian Reforms Act (1 of 1964): “Sec­tion 96 of the Act says that the Land Board shall after reserv­ing in each vil­lage the lands nec­es­sary for pub­lic pur­poses, assign on reg­istry the remain­ing Lands vested in the Gov­ern­ment under sec­tion 86 or 87, as spec­i­fied in the sec­tion. It was argued that reser­va­tion of land for pub­lic pur­pose has no rela­tion to agrar­ian reform, but is a colourable device for acquir­ing prop­erty for pub­lic pur­poses not relat­ing to agrar­ian reform with­out pay­ing the com­pen­sa­tion as pro­vided under Arti­cle 31 (2). But if the pro­vi­sion is read as pro­vid­ing for reser­va­tion of land for pub­lic pur­poses in rela­tion to agrar­ian reform, it would be immune from attack. I think, it is per­mis­si­ble to read the pro­vi­sion in this restricted man­ner. It is a gen­eral rule of con­struc­tion that a word or expres­sion though wide in its nat­ural and ordi­nary con­no­ta­tion must be restricted to the 105 pur­pose of the statute as evi­denced by the con­text. Besides, the rule gov­ern­ing the sep­a­ra­bil­ity of two, sec­tions of a statute in prin­ci­ple is applic­a­ble where a sin­gle sec­tion of a statute attempts or pur­ports to cover two entirely dis­tinct and sep­a­ra­ble classes of cases, one prop­erly and the other improp­erly, and that it may be upheld as to the class which con­sti­tu­tion­ally may be thus cov­ered, even though con­demned as to the other.” The Hon’ble Supreme Court in the Malankara Rub­ber and Pro­duce Co. Ltd. etc. ver­sus State of Ker­ala and oth­ers etc. AIR 1972 SC 2027 has upheld the judg­ment of the Ker­ala High Court. Their Lord­ships of the Hon’ble Supreme Court have held as under: “It was argued that although the Ker­ala High Court in Narayan Nair’s case, AIR 1971 Ker­ala 98 turned down the con­tention that under the wide lan­guage of S. 96 (1) “the reser­va­tion for pub­lic pur­pose could be for any pur­pose what­ever includ­ing one entirely uncon­nected with agri­cul­ture such as for exam­ple, an “indus­trial under­tak­ing” on the ground that “hav­ing regard to the con­text in which it appears the reser­va­tion for pub­lic pur­poses under that sub-section can only be for pub­lic pur­poses relat­ing to agri­cul­ture, such as the pro­vi­sions for thresh­ing floors or the con­struc­tion of irri­ga­tion or drainage chan­nels or the con­struc­tion of houses for agri­cul­tural labour­ers”, the new sub-sec. (1A) shows that the State did not intend to be bound by the con­struc­tion placed upon S. 96 by the High Court and made it clear that the sec­tion was not to be so read down thereby keep­ing in its hand the mat­ter of reser­va­tion of land for pub­lic pur­pose of any kind not lim­ited to agrar­ian reform.

 

The argu­ment though force­fully put can­not be accepted. The object of both the 1964 Act and the present Act was to effect agrar­ian reform, which only can give to the statue the pro­tec­tion of Arti­cle 31-A. This was made clear by the High Court in its judg­ment and in our view rightly, by read­ing down the said pro­vi­sion as to reser­va­tion for pub­lic 106 pur­poses to reser­va­tion, for pur­poses falling within the expres­sion “agrar­ian reform”. By enact­ing sub-s. (1-A) despite the said con­struc­tion by the High Court it appears that the inten­tion of the State Leg­is­la­ture was to over­rule leg­isla­tively the view expressed by the High Court and not to be bound by the inter­pre­ta­tion placed by the High Court. By so doing, the new sub-section has once again been made prone to the same con­sti­tu­tional chal­lenge. We have no doubt that the sub-section is couched in too gen­eral and wide a lan­guage capa­ble of includ­ing pub­lic pur­poses which would not be those falling within the expres­sion ‘agrar­ian reform’. There was there­fore con­sid­er­able force in the con­tention of coun­sel for the peti­tion­ers. The fact how­ever that the Leg­is­la­ture has once again used the same gen­eral lan­guage in spite of the afore­said inter­pre­ta­tion given by the High Court need not lead us to strike down wholly the subsection.

 

In accor­dance with the well rec­og­nized canon of con­struc­tion adopted in a num­ber of cases decided by this Court we read the sub sec­tion to mean only reser­va­tion of the land for such pub­lic pur­poses as would bring about agrar­ian reform inas­much as any acqui­si­tion under Art. 31-A for any pub­lic pur­pose other than that falling under the expres­sion “agrar­ian reform” can­not be con­sid­ered as hav­ing the pro­tec­tion of that Arti­cle.” The Apex Court has held in Kh. Fida Ali and oth­ers v. State of Jammu and Kash­mir, AIR 1974 SC 1522 that besides the avail­abil­ity of land for the pur­pose, lim­ited in scope in the nature of things, the scheme has to fit in with the local con­di­tions, vari­abil­ity of cli­mate, rain-fall, pecu­liar­ity of ter­rain, suit­abil­ity and prof­itabil­ity of mul­ti­ple crop pat­terns, vul­ner­a­bil­ity to floods and so many other fac­tors in for­mu­lat­ing a scheme of agrar­ian reforms suit­able to a par­tic­u­lar State. Their Lord­ships of the Supreme Court have held as under: “On the other hand, the pre­dom­i­nant object under­ly­ing the pro­vi­sions of the Act is agrar­ian reforms. Nat­u­rally can­not take the same pat­tern through­out the country.

 

107 Besides the avail­abil­ity of land for the pur­pose, lim­ited in scope in the nature of things, the scheme has to fit in with the local con­di­tions, vari­abil­ity of cli­mate, rain-fall, pecu­liar­ity of ter­rain, suit­abil­ity and prof­itabil­ity of mul­ti­ple crop pat­terns, vul­ner­a­bil­ity to floods and so many other fac­tors in for­mu­lat­ing a scheme of agrar­ian reforms suit­able to a par­tic­u­lar State. While a mod­est begin­ning is made with the land at dis­posal, mod­ern meth­ods of mech­a­niza­tion and other improve­ments can be resorted to with the help of the State machin­ery avail­able to the tillers of the soil. Such details can be worked out grad­u­ally by var­i­ous processes in the course of imple­men­ta­tion of the pro­vi­sions of the Act and the rules which def­i­nitely pro­vide suf­fi­cient elas­tic­ity. We are of opin­ion that the impugned Act has been passed with the def­i­nite object of agrar­ian reforms and can­not be suc­cess­fully chal­lenged on the score of vio­la­tion of Arti­cle 14, Arti­cle 19 and Arti­cle 31 in view of the pro­vi­sions of Arti­cle 31 A. The appli­ca­tion, there­fore, fails and is dis­missed. The par­ties will pay and bear their own costs.” The Apex Court has held in Civil Appeals Nos.1398, 1416 and 1417 of 1972: State of Ker­ala and another v. The Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. etc., AIR 1973 SC 2734 that the objec­tives of increas­ing agri­cul­tural pro­duc­tion and pro­mo­tion of wel­fare of the agri­cul­tural pop­u­la­tion are clearly ele­ments of agrar­ian reform. Their Lord­ships have held as under: “What then is the scheme of agrar­ian reform envis­aged in the impugned Act? The title of the Act shows that it is an Act to pro­vide for the vest­ing in the gov­ern­ment of pri­vate forests for the assign­ment thereof to agri­cul­tur­ists and agri­cul­tural labour­ers for cul­ti­va­tion. The pre­am­ble shows that such pri­vate forests which the leg­is­la­ture thought to be agri­cul­tural lands in the sense, already explained should be so uti­lized as to increase their agri­cul­tural pro­duc­tion in the State and to pro­mote the wel­fare of the agri­cul­tural pop­u­la­tion in the State. It is fur­ther stated in the Pre­am­ble that in order to give effect to the above objects it was nec­es­sary that the pri­vate forests should vest in the Govt.

 

108 The objec­tives of increas­ing the agri­cul­tural pro­duc­tion and the pro­mo­tion of the wel­fare of the agri­cul­tural pop­u­la­tion are clearly a pre­dom­i­nant ele­ment in agrar­ian reform. How these objec­tives are to be imple­mented are gen­er­ally stated in Sec­tions 10 and 11. All the pri­vate forests, after cer­tain reser­va­tions, are to be assigned to agri­cul­tur­ists or agri­cul­tural labour­ers and to the proper classes of the rural pop­u­la­tion desir­ing bona fide to take up agri­cul­ture as a means of their liveli­hood. The reser­va­tion in respect of cer­tain por­tions of the forests is also made in the inter­est of the agri­cul­tural pop­u­la­tion because the sec­tion says that the reser­va­tions will be such as may be nec­es­sary for pur­poses directed towards the pro­mo­tion of agri­cul­ture or wel­fare of the agri­cul­tural pop­u­la­tion or for pur­poses ancil­lary thereto.

 

Sec­tion 11 fur­ther pro­vides that after mak­ing the nec­es­sary reser­va­tions the scheme for the assign­ment of the pri­vate forests to the var­i­ous ben­e­fi­cia­ries described in Sec­tion 10 shall as far as may be, be com­pleted within two years from the date of the pub­li­ca­tion of the Act. The con­di­tions and restric­tions under which the assign­ments are to take place have to be pre­scribed by rules. We under­stand that in view of the stay granted by the courts, the rules have not been framed. But it is clear that the rules will have to be framed forth­with because of the urgency of the mat­ter as seen in Sec­tion 11 and these rules will undoubt­edly unfold the details of the scheme gen­er­ally envis­aged in Sec­tion 10. It would not be nec­es­sary to empha­size that the rules will have to be con­sis­tent with the pur­poses of the Act. In Statutes of this nature, pro­vi­sion can only be gen­er­ally made to indi­cate the broad details of the scheme for agrar­ian reform and that is what is done in the Act. In Bal­madies case referred to above no such scheme had been envis­aged. But in another case namely the Kanan Devan Hills Pro­duce v. state of Ker­ala, (1972) 2 SCC 218 = (AIR 1972 SC 2301) the Statute viz. The Kan­nan Devan Hills (Resump­tion of Lands) Act 5 of 1971 dis­closed a scheme in Sec­tion 9 which is very sim­i­lar to our own Sec­tion 10 of the impugned Act. Sec­tion 9 of that act was as fol­lows: 109 “9 Assign­ment of lands.—(1) The Gov­ern­ment shall, after reserv­ing such extent of the lands, the pos­ses­sion of which has vested in the gov­ern­ment under sub-clause (1) of Sec­tion 3…., as may be nec­es­sary for pur­poses directed towards the pro­mo­tion of agri­cul­ture or the wel­fare of the agri­cul­tural pop­u­la­tion to be set­tled on such lands, assign on reg­istry the remain­ing ands to agri­cul­tur­ists and agri­cul­tural labour­ers in such man­ner, on such terms and sub­ject to such con­di­tions and restric­tions, as may be pre­scribed.” That scheme as envis­aged in this sec­tion was upheld by this court a scheme for agrar­ian reform and we do not see any good rea­son why we should take a dif­fer­ent view with regard to the scheme envis­aged in sec­tion 10 of the impugned Act. ‘ “The con­cept of agrar­ian reform is a com­plex and dynamic one pro­mot­ing wider inter­ests than con­ven­tional reor­ga­ni­za­tion of the land sys­tem or dis­tri­b­u­tion of land. It is intended to real­ize the social func­tion of the land and includes— we are merely giv­ing, by way of illus­tra­tion, a few famil­iar pro­pos­als of agrar­ian reform—creation of eco­nomic units of rural pro­duc­tion, estab­lish­ment of ade­quate credit sys­tem, imple­men­ta­tion of mod­ern pro­duc­tion tech­niques, con­struc­tion of irri­ga­tion sys­tems and ade­quate drainage, mak­ing avail­able fer­til­iz­ers, fungi­cides, her­bi­cides and other meth­ods of inten­si­fy­ing and increas­ing agri­cul­tural pro­duc­tion, pro­vid­ing read­ily avail­able means of com­mu­ni­ca­tion and trans­porta­tion, to facil­i­tate proper mar­ket­ing of the vil­lage pro­duce, putting up of silos, ware­houses etc. to the extent nec­es­sary for pre­serv­ing pro­duce and han­dling it so as to bring it con­ve­niently within the reach of the con­sumers when they need it, train­ing of vil­lage youth in mod­ern agri­cul­tural prac­tices with a view to max­i­miz­ing pro­duc­tion and help solve social prob­lems that are found in rela­tion to the life of the agri­cul­tural community.

 

The vil­lage man, his wel­fare, is the tar­get.” 110 Their Lord­ships of the Supreme Court in State of W.B. vs. Ashish Kumar Roya and oth­ers, (2005)10 SCC 110 have con­sid­ered the term ‘agrar­ian’ as under: “In the instant case, the Tri­bunal has been con­sti­tuted under the West Ben­gal Ten­ancy Tri­bunal Act and it has been given the juris­dic­tion to enter­tain dis­putes with regard to the five spec­i­fied acts. Learned coun­sel for the respon­dents argues thus: the tri­bunal con­tem­plated under Arti­cle 323B clause (1) read with clause (2) (d) can only be a tri­bunal for decid­ing dis­putes or mat­ters with respect to land reforms by way of acqui­si­tion of any estate as defined in Arti­cle 31A. Arti­cle 31A itself defines the expres­sion ‘estate’ in clause (2). Both Arti­cle 31A and the def­i­n­i­tion of ‘estate’ in clause (2) of Arti­cle 31A have received judi­cial inter­pre­ta­tion by Con­sti­tu­tional Benches of this Court which have uni­for­mally taken the view that the pro­tec­tion of Arti­cle 31A is avail­able only to laws which are intended to carry out agrar­ian reforms. The pre­dom­i­nant pur­pose of sub-clause (d) of clause (2) of Arti­cle 323B is to con­sti­tute a tri­bunal only with respect to dis­putes per­tain­ing to laws car­ry­ing out agrar­ian reforms. Out of the 5 spec­i­fied Acts, the West Ben­gal Land Reforms Act, 1955, the Cal­cutta Thika Ten­ancy (Acqui­si­tion and Reg­u­la­tion) Act, 1981 and the West Ben­gal Land Hold­ing Rev­enue Act, 1979 have no con­nec­tion what­so­ever with agrar­ian reforms.

 

There­fore, the Tri­bunal con­sti­tuted to deal with these Acts can­not be a tri­bunal within the mean­ing of Arti­cle 323B(2)(d) of the Con­sti­tu­tion. Hence, the learned coun­sel con­tends that the impugned Act is not immune from chal­lenge on the ground of vio­la­tion of the Con­sti­tu­tional provisions.

 

The argu­ment is unac­cept­able for three rea­sons. The first is the fal­la­cious assump­tion that in order to be a valid tri­bunal con­sti­tuted under Arti­cle 323B(1) and 111 323B(2)(d), the tri­bunal must nec­es­sar­ily deal with laws for agrar­ian reforms. In our view, the read­ing of the expres­sion ‘estate’ from clause (2) of Arti­cle 31A into Arti­cle 323B (2)(d) is only for the pur­pose of enu­mer­a­tion. Instead of repeat­ing the entire def­i­n­i­tion con­tained in clause (2) of Arti­cle 31A in sub-clause(d) of 323B,the framers of the Con­sti­tu­tion merely indi­cated that the word ‘estate’ would have the same mean­ing as in Arti­cle 31A. The ref­er­ence to the def­i­n­i­tion of ‘estate’ in Arti­cle 31A made in Arti­cle 323B (2) (d) serves no other purpose.

 

Sec­ondly, the con­cept of ‘agrar­ian reform’ is not con­fined only to agri­cul­ture or its reform. In the words of Krishna Iyer,J. in his con­cur­ring judg­ment in State of Ker­ala and another vs. The Gwalior Rayon Silk Mfg (Wvg.) Co. Ltd. Etc. (AIR 1973 SC 2734) (para 30): “30. The con­cept of agrar­ian reform is a com­plex and dynamic one pro­mot­ing wider inter­ests than con­ven­tional reor­ga­ni­za­tion of the land sys­tem or dis­tri­b­u­tion of land. It is intended to real­ize the social func­tion of the land and includes — we are merely giv­ing, by way of illus­tra­tion, a few famil­iar pro­pos­als of agrar­ian reform — cre­ation of eco­nomic units of rural pro­duc­tion, estab­lish­ment of ade­quate credit sys­tem, imple­men­ta­tion of mod­ern pro­duc­tion tech­niques, con­struc­tion of irri­ga­tion sys­tems and ade­quate drainage, mak­ing avail­able fer­til­iz­ers, fungi­cides, her­bi­cides and other meth­ods of inten­si­fy­ing and increas­ing agri­cul­tural pro­duc­tion, pro­vid­ing read­ily avail­able means of com­mu­ni­ca­tion and trans­porta­tion, to facil­i­tate proper mar­ket­ing of the vil­lage pro­duce, putting up of silos, ware­houses etc. to the extent nec­es­sary for pre­serv­ing pro­duce and han­dling it so as to bring it con­ve­niently within the reach of the con­sumers when they need it, train­ing of vil­lage youth in mod­ern agri­cul­tural prac­tices with a view to max­i­miz­ing pro­duc­tion and help solve social prob­lems 112 that are found in rela­tion to the life of the agri­cul­tural com­mu­nity. The vil­lage man, his wel­fare, is the tar­get.” Fur­ther, in test­ing as to whether the law was intended for agrar­ian reform, the Court is required to look to the sub­stance of the act and not its mere out­ward form.

 

Thirdly, the con­tention also pro­ceeds on a mis­read­ing of Arti­cle 323B (2) (d). Under clause (1) the State Leg­is­la­ture is empow­ered to make a law with regard to entry 18 in List II of the 7^th Sched­ule which reads “Land, that is to say, right in or over land, land tenures includ­ing the rela­tion of land­lord and ten­ant, and the col­lec­tion of rents; trans­fer and alien­ation of agri­cul­tural land; land improve­ment and agri­cul­tural loans, colonization”.

 

Sub-clause (d) of Arti­cle 323 B is not con­fined to land reforms by acqui­si­tions of estates or extin­guish­ment or mod­i­fi­ca­tion of any such rights for the clause ends with the phrase “or in any other way”, which are wide enough to accom­mo­date any other type of law which is intended for “land reforms”.

 

We are, there­fore, unable to accept the con­tention of the learned coun­sel that in order to fall within the pro­tec­tion of umbrella of Arti­cle 323B, the tri­bunal must have been con­sti­tuted only with regard to dis­putes aris­ing under any law intended for agrar­ian reform. As long as it is a law with respect to “land reforms”, it is suf­fi­cient to fall within the ambit of sub-clause (d) of clause (2) of Arti­cle 323B of the Constitution.

 

“Agrar­ian reforms”, itself is a wide con­cept and we do not see why the objects attempted to be ful­filled by the spec­i­fied Acts would not fall within the ambit of this com­pen­dious term. Look­ing at the pre­am­bles and the schemes of the five spec­i­fied Acts, we are unable to find fault with the rea­son­ing of the learned sin­gle Judge that the 113 tri­bunal con­sti­tuted to deal with the dis­putes aris­ing under the said spec­i­fied Acts was very much a tri­bunal within the mean­ing of Arti­cle 323-B of the Constitution”.

 

In view of the above dis­cus­sion, it is held that inser­tion of Sec­tion 8-A by Act No.18 of 1981 in the Prin­ci­pal Act No. 18 of 1974 is against the will and inten­tion of the leg­is­la­ture. The Prin­ci­pal Act No.18 of 1974 has been enacted to achieve agrar­ian reforms to ame­lio­rate the suf­fer­ings of rural masses by dis­tri­b­u­tion of the land as well as plan­ning schemes for their uplift­ment. It is in this back­ground that we have to con­sider whether lease could be made in favour of respon­dent No.3 in the year 2001 by invok­ing Sec­tion 8-A. The answer is in the neg­a­tive. The grant of lease in favour of respon­dent no.3 by no stretch of imag­i­na­tion can be termed as a step towards agrar­ian reforms. The fact of grant­ing lease in favour of respon­dent No.3 is only to ben­e­fit a sin­gle indi­vid­ual at the cost of the peti­tion­ers and other co-villagers.

The sub­mis­sions of Mr. Bhu­pen­der Gupta learned coun­sel that the respon­dent No.3 had engaged 50 labour­ers and had also invested huge amount besides giv­ing employ­ment by pro­vid­ing funds to the vil­lagers is of no sig­nif­i­cance. The devel­op­ment even as per Sec­tion 8-A will mean in those areas which are akin to agri­cul­tural pur­suits unlike min­ing activ­i­ties being car­ried out by respon­dent No.3.

We are also for­ti­fied in tak­ing the view that min­ing activ­i­ties are unre­lated to agrar­ian reform on the basis of the expres­sion “com­mon pur­poses” being now defined as per the Amend­ment Act, 2001 whereby ‘com­mon pur­poses’ have been added after clause (a) in the fol­low­ing man­ner: “(a-1) “Com­mon pur­poses” means and includes graz­ing, col­lec­tion of fuel wood and tree leaves for fod­der, school build­ings, Pan­chayat Ghars, Mahila Man­dal Bhawans, School Play­grounds, Com­mu­nity Halls, Janj Ghars, Dis­pen­saries, Gov­ern­ment Offices, Kisan Mandies, tree plan­ta­tion under 114 var­i­ous State Gov­ern­ment Schemes and any other pub­lic facil­i­ties.” Thus, all the devel­op­men­tal activ­i­ties are required to be relat­able to the pur­poses men­tioned in ‘com­mon pur­poses’ and this def­i­n­i­tion of ‘com­mon pur­poses’ came by way of inser­tion of clause (a-1) is in con­for­mity with the expres­sion agrar­ian reform. The word devel­op­ment can­not be given an exten­sive mean­ing so as to include other activ­i­ties like min­ing etc. Even the word indus­try and tourism men­tioned in the State­ment of Objects and Rea­sons for bring­ing out the Act No. 18 of 1981 have to be given a very very restric­tive mean­ing. The indus­tries could be only agro based and the tourism could only be relat­able to vil­lage tourism. We are also of the view that the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is based on the prin­ci­ple ‘land for the tiller’ and the pro­duc­tion should also be in the hands of the actual pro­ducer. The other moti­vat­ing fac­tor of agrar­ian reform is to give advance­ment or fil­lip to agri­cul­tural groups as well as relat­able to the dis­tri­b­u­tion of landed property.

The State at one time has also taken into con­sid­er­a­tion the dam­age caused to the envi­ron­ment and ecol­ogy of Dis­trict Sir­maur as well as dan­ger of dis­tur­bances to the sta­bil­ity of hill slopes. The State Gov­ern­ment had issued noti­fi­ca­tion on 8^th Decem­ber, 1986. The text of the noti­fi­ca­tion reads thus: “Whereas it is felt that there has been hap­haz­ard and exces­sive growth of min­ing of min­er­als in Dis­trict Sir­maur, H.P. caus­ing the dan­ger of dis­tur­bances to the sta­bil­ity of hill slopes result­ing irre­versible degra­da­tion of envi­ron­ment and upset the eco-system of the area; and Whereas it is found imper­a­tive that detailed stud­ies are under­taken for prov­ing the deposits for the qual­ity and quan­tity, geo­log­i­cal for­ma­tions and struc­ture in sur­round­ing areas, phys­iog­ra­phy of the area and the land use pat­tern of the area which can be put after the min­eral is removed from the area; and 115 Now , there­fore, in exer­cise of the pow­ers con­ferred by rule 58 of the Min­eral Con­ces­sion Rules, 1960, the Gov­er­nor, Himachal Pradesh is pleased to reserve entire area com­prised in Dis­trict Sir­maur of Himachal Pradesh, except the area already granted for Min­ing Lease/Prospecting Licence, for exploita­tion by the Gov­ern­ment, with effect from 5th Decem­ber, 1986.

 

How­ever, the appli­ca­tions filed and pend­ing as on 5.12.1986 will be decided on mer­its.” The mat­ter also needs con­sid­er­a­tion from another angle. It is evi­dent from the lan­guage employed in sec­tion 8-A of the Act that the Gov­ern­ment could uti­lize any area of the land vested in it under the Act by lease to any per­son or by trans­fer to any depart­ment of the Gov­ern­ment in the inter­ests of the devel­op­ment of the State, if the State Gov­ern­ment or the Offi­cer autho­rized by it is sat­is­fied that there are suf­fi­cient rea­sons to do so sub­ject to the con­di­tion that land for the pur­poses men­tioned in clause (a) of sub-section (1) of sec­tion 8 in no case shall be less than fifty per­cent of the land vested in the Gov­ern­ment under the Act. Clause (a) of sub-section (1) of Sec­tion 8 of the Prin­ci­pal Act reads as under: “an area not less than 50% of the total area vested in the State Gov­ern­ment under sec­tion 3 of the Act for graz­ing and other com­mon pur­poses of the inhab­i­tants of an estate.” The amend­ment was car­ried out by way of Act No.10 of 1987 whereby clause (b) of the Prin­ci­pal Act was sub­sti­tuted in the fol­low­ing man­ner: “(b) the remain­ing land– (i) for allot­ment to a land­less per­son or any other eli­gi­ble per­son; or (ii) for allot­ment of site to a hand­i­capped or house­less per­son for the con­struc­tion of a house; under a scheme to be framed by the State Gov­ern­ment by noti­fi­ca­tion in the Offi­cial Gazettee and the allot­tee shall pay an amount at the rate of forty-eight times of the land rev­enue and rates and cesses charge­able on the land allot­ted to him 116 under the said scheme, either in lump sum or in six monthly install­ments nor exceed­ing four.” By way of Act No. 10 of 1987, the word ‘hand­i­capped per­son’, as well as ‘other eli­gi­ble per­son’ were also defined as under: “(dd) “other eli­gi­ble per­son” means a per­son,- (i) who, hold­ing land for agri­cul­tural pur­poses less than an acre whether as an owner or a ten­ant, earns his liveli­hood prin­ci­pally by man­ual labour on land and intends to take the pro­fes­sion of agri­cul­ture and is capa­ble of cul­ti­vat­ing the land per­son­ally; (ii) whose father is not alive; and (iii) whose annual income from all sources does not exceed Rs. 3000/-; and shall not include a per­son who holds a share or a por­tion of an estate jointly owned or cul­ti­vated by two or more per­sons.” It is thus evi­dent from the State­ment of Objects and Rea­sons that bring­ing of Act No. 10 of 1987 was neces­si­tated to define the expres­sion ‘eli­gi­ble per­son’, which was not ear­lier defined. The State­ment of Objects and Rea­sons reads thus: “In 1975, a mas­sive pro­gramme of allot­ment of land was launched by the Gov­ern­ment under the 20-Point Pro­gramme enun­ci­ated by the Prime Min­is­ter. Under this pro­gramme, all the land­less agri­cul­tural labour­ers who had no land or had land less than an acre, were to be allot­ted land upto an acre. The lat­ter cat­e­gory was called. “other eli­gi­ble persons”.

 

Among the sources from which land was and is being allot­ted to both the cat­e­gories, is the vil­lage com­mon land vested in the Gov­ern­ment under the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974.

 

The def­i­n­i­tion of the expres­sion “land­less per­son” as given in that Act at present, was sup­ple­mented by instruc­tions issued in Octo­ber, 1975 lay­ing down that a 117 per­son hav­ing his father alive and income exceed­ing Rs.

 

3,000/- per annum from all sources shall not be a land­less per­son for the pur­poses of allot­ment of land.

 

The allot­ment of land has been made in the light of these guide­lines and allot­ments found to have been made in vio­la­tion of these admin­is­tra­tive instruc­tions had been can­celled by the com­pe­tent authority.

 

This arrange­ment has, how­ever, not found favour with the Civil Courts which have held that the def­i­n­i­tion of the expres­sion “land­less per­son” as given in the Act does not embody the con­di­tions pre­scribed under the admin­is­tra­tive instruc­tions. It has, there­fore, become nec­es­sary to amend the above def­i­n­i­tion and make con­se­quen­tial pro­vi­sions to can­cel the allot­ment of lands obtained by cer­tain unscrupu­lous per­sons by con­ceal­ing facts at the rel­e­vant time.

 

Besides, the State Gov­ern­ment has also decided that a hand­i­capped per­son hav­ing 50% or more dis­abil­ity should be granted house site for con­struc­tion of his house. Then there may be other pur­poses also for which land is often required.

 

At present there is no enabling pro­vi­sion in the Act on this score. Sec­tion 8 has, there­fore, to be amended suitably.

 

This Bill seeks to achieve the afore­said objec­tives.” It is thus evi­dent from the scheme of the Act that 50% of the land was reserved for the pur­pose of graz­ing and other com­mon pur­poses of the inhab­i­tants of the estate and the remain­ing 50% was to be allot­ted to a land­less per­son or any other eli­gi­ble per­son as well as for allot­ment of site to hand­i­capped or house­less per­son for the con­struc­tion of a house. The land which as per the Amend­ment Act No. 18 of 1981 is being allot­ted for devel­op­men­tal activ­i­ties was the remain­ing 50% which was reserved for land­less per­son or any other eli­gi­ble per­son. The expres­sion “land­less per­son” and other “eli­gi­ble per­son” had been defined. It is clear from the com­bined read­ing of both the expres­sion as defined under sec­tion 2 © (dd) that the land was to be allot­ted to agri­cul­tural labourer, who had no land or had land less 118 than an acre. The uti­liza­tion of 50% land, which was to be allot­ted to the land­less and other eli­gi­ble per­sons for min­ing activ­i­ties will run counter to the spirit of the Prin­ci­pal Act. It is not that the land to be allot­ted to the land­less or other eli­gi­ble per­son has dras­ti­cally been reduced but the same has also been put to other non-agricultural pur­poses i.e. min­ing activ­i­ties etc. This was never the inten­tion of the leg­is­la­ture at the time of the enact­ment of the Prin­ci­pal Act.

These obser­va­tions also strengthen our find­ings that the land which has been vested in the State under sec­tion 3 of the Prin­ci­pal Act, could not be per­mit­ted to be used for min­ing purposes.

It is in this back­drop that we have to con­sider whether sec­tion 8-A inserted in the Prin­ci­pal Act by way of Act No. 18 of 1981 is uncon­sti­tu­tional being viola­tive of Arti­cles 14 and 19 of the Con­sti­tu­tion of India. It is reit­er­ated that the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion and it was for this rea­son alone that it was put at Sr. No. 139 in Schedule-IX of the Con­sti­tu­tion of India. The Amend­ment Act 18 of 1981 whereby sec­tion 8-A has been inserted in the Prin­ci­pal Act has never received the assent of the Pres­i­dent of India and its vires can be chal­lenged being viola­tive of the fun­da­men­tal rights enshrined under Part-III of the Con­sti­tu­tion of India. The land which had vested in the State in view of the Prin­ci­pal Act, 1974 was reserved for graz­ing pas­ture as well as for allot­ment to land­less and other eli­gi­ble per­sons. The land­less and other eli­gi­ble per­sons are the per­sons who are pri­mar­ily depen­dent on agri­cul­ture labour and ancil­lary activ­i­ties. Sec­tion 8-A though talks of uti­liza­tion of the land for devel­op­ment but read as a whole it runs con­trary to the spirit of the Prin­ci­pal Act. Sec­tion 8-A is unrea­son­able and arbi­trary, thus viola­tive of Arti­cle 14 as well as Arti­cle 19 of the Con­sti­tu­tion of India. We are also for­ti­fied in tak­ing this view for declar­ing Sec­tion 8-A ultra vires of the Con­sti­tu­tion on the basis of def­i­n­i­tion given to the expres­sion “com­mon pur­poses” by way of amend­ment car­ried out in the year 2001. The min­ing activ­i­ties could never be treated as part of agrar­ian reform as 119 pro­jected by the respon­dents at the time of hear­ing of the peti­tion. The grant of min­ing lease in favour of respon­dent No.3 is alien to the spirit of the Prin­ci­pal Act, 1974. The peti­tion­ers and other co-villagers are bound to get back their land which had ear­lier been vested in the State in the year 1974 after the inser­tion of clause (d) in sub-section (2 ) of Sec­tion 3 with effect from 1974.

Though in clear terms we have declared Sec­tion 8-A of the Amend­ment Act, 1981 uncon­sti­tu­tional, but we can avoid its strik­ing down by read­ing down Sec­tion 8-A har­mo­niously with other sec­tions of the Prin­ci­pal Act, 1974. The intent and the will of the Leg­is­la­ture is to pro­tect the rights of the tillers of the land as is evi­dent from the main Objects and Rea­sons dis­cussed here in above. Strik­ing down of Sec­tion 8-A can be saved by this Court by giv­ing a very very restric­tive mean­ing to the expres­sion uti­liza­tion of land to the devel­op­ment by con­fin­ing it to the agri­cul­tural pursuits/occupation and by not agree­ing to the sub­mis­sions made by the learned Advo­cates appear­ing on behalf of the respon­dents to give the expres­sion ‘devel­op­ment’ exten­sive mean­ing. The prin­ci­ples of read­ing down have been suc­cinctly explained by the Hon’ble Supreme Court in Cal­cutta Gujarati Edu­ca­tion Soci­ety and another v.

 

Cal­cutta Munic­i­pal Corpn. and oth­ers, (2003)10 SCC 533. Their Lord­ships have held as under: “The rule of “read­ing down” a pro­vi­sion of law is now well recog­nised. It is a rule of har­mo­nious con­struc­tion in a dif­fer­ent name.

 

It is resorted to smoothen the cru­di­ties or iron­ing the creases found in a statute to make it work­able. In the garb of ‘read­ing down’, how­ever, it is not open to read words and expres­sions not found in it and thus ven­ture into a kind of judi­cial leg­is­la­tion. The rule of read­ing down is to be used for the lim­ited pur­pose of mak­ing a par­tic­u­lar pro­vi­sion work­able and to bring it in har­mony with other pro­vi­sions of the statute. It is to be used keep­ing in view the scheme of the statute and to ful­fil its pur­poses. See the fol­low­ing obser­va­tions of this Court in the case of BR Enter­prises vs. State of UP [1999(9) SCC 700]:- 120 “First attempt should be made by the courts to uphold the charged pro­vi­sions and not to inval­i­date it merely because one of the pos­si­ble inter­pre­ta­tion leads to such a result, how­so­ever attrac­tive it may be.

 

Thus, where there are two pos­si­ble inter­pre­ta­tions, one inval­i­dat­ing the law and the other uphold­ing, the lat­ter should be adopted. For this, the courts have been endeav­our­ing, some­times to give restric­tive or expan­sive mean­ing keep­ing in view the nature of leg­is­la­tion, may be ben­e­fi­cial, penal or fis­cal etc. Cumu­la­tively, it is to sub-serve the object of the leg­is­la­tion. Old golden rule is of respect­ing the wis­dom of leg­is­la­ture, that they are aware of the law and would never have intended for an invalid leg­is­la­tion. This also keeps courts within their track and checks indi­vid­ual zeal of going way­ward. Yet in spite of this, if the impugned leg­is­la­tion can­not be saved the courts shall not hes­i­tate to strike it down. Sim­i­larly, for uphold­ing any pro­vi­sion, if it could be saved by read­ing it down, it should be done, unless plain words are so clear to be in defi­ance of the Con­sti­tu­tion. These inter­pre­ta­tions spring out because of con­cern of the courts to sal­vage a leg­is­la­tion to achieve its objec­tive and not to let it fall merely because of a pos­si­ble inge­nious inter­pre­ta­tion. The words are not sta­tic but dynamic. This infuses fer­til­ity in the field of interpretation.

 

This equally helps to save an Act but also the cause of attack on the Act. Here the courts have to play a cau­tious role of weed­ing out the wild from the crop, of course, with­out infring­ing the Con­sti­tu­tion. For doing this, the courts have taken help from the Pre­am­ble, Objects, the scheme of the act, its his­tor­i­cal back­ground, the pur­pose for enact­ing such a pro­vi­sion, the mis­chief, if any which existed, which is sought to be elim­i­nated. The prin­ci­ple of read­ing down, how­ever, will not be avail­able where the plain and lit­eral mean­ing from a bare read­ing of any impugned pro­vi­sions clearly shows that it con­fers arbi­trary, uncanalised or unbri­dled power.” On behalf of the Cor­po­ra­tion learned coun­sel placed heavy reliance on para­graph 16 of the Judge­ment of this Court in Cen­tral Bank of India (supra). It is argued that com­pa­ra­ble pro­vi­sions of Bom­bay Act were exam­ined and con­tention was rejected that right of appeal to ten­ants, sub-tenants or occu­piers on pre-deposit of tax for the entire prop­erty or premises is inequitable and vir­tual denial of right of appeal.

 

121 In view of the law laid down by the Hon’ble Supreme Court and after har­mon­is­ing Sec­tion 8-A of the Amend­ment Act, 1981, and other sec­tions of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Rules, 1975 , the Himachal Pradesh Lease Rules, 1993 and the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Scheme, 1975, we read down Sec­tion 8-A instead of strik­ing it down by declar­ing that the min­ing activities/operations etc., can­not be termed as devel­op­men­tal activ­i­ties as men­tioned in sec­tion 8-A and the action of the State to grant lease to respon­dent No.3 from the allotable pool is con­trary to the Prin­ci­pal Act. Sec­tion 8-A will not get immu­nity under Arti­cle 31-A if the devel­op­men­tal activ­i­ties car­ried out by the State are against the agrar­ian reforms.

It is for this rea­son that the Court has to give very restric­tive mean­ing towards devel­op­men­tal activ­i­ties by restrict­ing the word “devel­op­ment” to agri­cul­ture pur­suits to achieve the pur­pose of this Statute as evi­dence by the context.

7. Whether the immu­nity enjoined by the Prin­ci­pal Act being placed in Schedule-IX can be extended to sec­tion 8-A added in the year 1981? As regards an Act con­tained in Schedule-IX, an amend­ment can­not be given ret­ro­spec­tive effect because that would involve the amend­ment of Con­sti­tu­tion and it can be amended only by the Par­lia­ment as pro­vided in Arti­cle 368. Any amend­ment of an Act in Schedule-IX must, there­fore, stand the test of fun­da­men­tal rights unless it is oth­er­wise pro­tected, for exam­ple Arti­cle 31-A. The Hon’ble Supreme Court in Raman­lal Gula­bc­hand Shah etc. etc. v. The State of Gujarat and Oth­ers, AIR 1969 SC 168 has held as under:- “The first ques­tion to con­sider is the vires of the addi­tion to S. 65 by the Amend­ing Act, which addi­tion has been shown in the sec­tion quoted already. This mat­ter has to be con­sid­ered with ref­er­ence to Arts. 31-A and 31-B read with the Ninth Sched­ule. The pro­tec­tion is claimed on the basis of these two arti­cles by the State. Arti­cle 31-B no doubt gives pro­tec­tion to all statutes listed in Sched­ule IX of the Con­sti­tu­tion and this Act is so listed. But it was listed before the 122 amend­ment of S. 65 and that amend­ment can­not be said to have been con­sid­ered when the Amend­ment of the Con­sti­tu­tion was made. That Amend­ment if accepted as unas­sail­able will have the indi­rect effect of amend­ing the orig­i­nal Sched­ule IX by includ­ing some­thing in it which was not there before. This is undoubt­edly beyond the com­pe­tence of any State leg­is­la­ture. The argu­ment of the learned Attor­ney Gen­eral that the gen­eral scheme of the Pre­am­ble and the pro­vi­sions of S. 44 made applic­a­ble by S.65 (2) both of which have the pro­tec­tion of Art.

 

31-B must give pro­tec­tion is fal­la­cious. Even if the pre­am­ble and S. 44 could be read (and we do not decide that they can be so read) to give valid­ity it is clear that the pre­am­ble talked only of land­hold­ers and the addi­tion of the words to S. 65 is intended to apply the prin­ci­ple to nonlandholders.

 

Sim­i­larly the pro­vi­sions of S. 44 under the una­mended Act, could not have been made applic­a­ble to such land­hold­ers. The amend­ment of S. 65 was really car­ry­ing the Act into new fields and not being con­sid­ered as an amend­ment of the Con­sti­tu­tion, how can it claim the pro­tec­tion given to the una­mended Act ? There­fore Art. 31-B and the Ninth Sched­ule can­not be called in aid.” Sim­i­larly, their Lord­ships of the Hon’ble Supreme Court have held in The State of Orissa v. Chan­drasekhar Singh Bhoi, etc., AIR 1970 SC 398 that the amend­ing Act passed after the enact­ment of the Con­sti­tu­tion (17^th Amend­ment) Act, 1964 did not qual­ify for the pro­tec­tion of Arti­cle 31-B. Their Lord­ships have held as under:- “By the amend­ments made in the Con­sti­tu­tion by the 17^th Amend­ment Act the prin­ci­pal Act is incor­po­rated in the Ninth Sched­ule to the Con­sti­tu­tion with effect from June 20, 1964. The Act is there­fore not liable to be attacked on the plea that it is incon­sis­tent with or takes away or abridges any of the fun­da­men­tal rights con­ferred by Part III of the Con­sti­tu­tion. But the power of the com­pe­tent Leg­is­la­ture to repeal or amend the Act incor­po­rated in the Ninth Sched­ule is not thereby taken away. The amend­ing Act passed after the enact­ment of the Con­sti­tu­tion (Sev­en­teenth Amend­ment) Act, 1964 does not there­fore qual­ify for the pro­tec­tion of Arti­cle 31-B. See Raman­lal Gula­bc­hand Shah v. State of Gujrat, Civil Appeals Nos. 1751 to 1773 of 1966, D/- 19-4-1968 = (AIR 1969 SC 168); Sri Ram Narain 123 Medhi v. State of Bom­bay, (1959) Supp (1) SCR 489 = AIR 1959 SC 459). This posi­tion is not dis­puted.” The full Bench of Ker­ala High Court in V.N. Narayanan Nair and Oth­ers v.

 

State of Ker­ala and Oth­ers, AIR 1971 Ker­ala 98 after rely­ing upon AIR 1978 SC 168 and AIR 1978 SC 398 has held that though the orig­i­nal Act hav­ing been included as Item No.39 in Schedule-IX of Con­sti­tu­tion gets pro­tec­tion of Arti­cle 31– B, sub­se­quent amend­ing Acts viz.; Act 12 of 1966, Act 9 of 1967 and Act 35 of 1969 not hav­ing been so included in Schedule-9 can­not get pro­tec­tion of Arti­cle 31– B. Their Lord­ships have held as under:- “The Ker­ala Land Reforms Act, 1963 (Act 1 of 1964) as orig­i­nally enacted (the orig­i­nal Act as we shall call it) finds a place a place in the Ninth Sched­ule to the Con­sti­tu­tion – see Item 39 – and there­fore has the pro­tec­tion of Arti­cle 31-B. It has been amended three times, first by Act 12 of 1966, then by Act 9 of 1967, and now by Act 35 of 1969, the amend­ments made by the last men­tioned Act (which we shall call the amend­ing Act) being far-reaching. (To the 132 sec­tions in the orig­i­nal Act, over 50 new sec­tions have been added while over 60 sec­tions have been amended. To the 62 def­i­n­i­tions 10 have been added while 20 have been amended. The amended Act is there­fore vir­tu­ally a new piece of leg­is­la­tion). The first of these was enacted by the Pres­i­dent while the remain­ing two have received his assent – it has been con­tended not in the free and proper exer­cise of his judg­ment, but, of course, we can­not go into that – but none of them has been included in the Ninth Sched­ule. There­fore, such of the pro­vi­sions of the amended Act (or sim­ply, the Act) as are not part of the orig­i­nal Act (whether they be entirely new pro­vi­sions or pro­vi­sions in sub­sti­tu­tion) can­not claim the pro­tec­tion of Arti­cle 31-B see Raman­lal v. State of Gujarat, AIR 1969 SC 168 and State of Orissa v. Chan­drasekhar Singh Bhoi, 1970–1 SCWR 306 = (AIR 1970 SC 398). The peti­tion­ers in these forty appli­ca­tions under Arti­cle 226 of the Con­sti­tu­tion are land­hold­ers, and, between them, they assail vir­tu­ally all the mate­r­ial pro­vi­sions of the amended Act as viola­tive of Arti­cles 14, 19, 25, 26 and 31 of the Con­sti­tu­tion – many of them seek the strik­ing 124 down of the Act in entirety on that score. The prin­ci­pal, indeed almost the sole, defence is that the pro­vi­sions are pro­tected from such attach by Arti­cle 31-A.” The Apex Court has held in M/s. Prag Ice & Oil Mills and another etc. etc.

 

v. Union of India, AIR 1978 SC 1296 that the immu­nity enjoyed by the par­ent Act by rea­sons of its being placed in the Ninth Sched­ule can­not pro­prio vig­ore be extended to an off­spring of the Act like a price con­trol order issued under the author­ity of the Act. Their Lord­ships have held as under:- “In prac­tice, it is the exer­cise of power which is gen­er­ally assailed and not the mere enforce­ment of it which raises some­what dif­fer­ent ques­tion of leg­isla­tive com­pe­tence. Indeed, the Ninth Sched­ule does not pro­vide any pro­tec­tion at all against attacks based upon either the vice of exces­sive del­e­ga­tion or want of leg­isla­tive com­pe­tence defects which could be said to viti­ate the grant of pow­ers despite their place in the Ninth Sched­ule. But, ques­tions of con­flict with fun­da­men­tal rights and of trans­gres­sion of legit­i­mate or rea­son­able lim­its upon their exer­cise arise when cit­i­zens com­plain of unrea­son­able imped­i­ments to the exer­cise of their fun­da­men­tal rights. The dis­tinc­tion between pro­tec­tions to a mere grant of pow­ers and to their exer­cise, there­fore, seems spe­cious in the con­text of the pro­tec­tion. It can­not explain why, if S. 3 is pro­tected by the Ninth Sched­ule, the exer­cise of power granted by it, which man­i­fests itself in con­trol orders, is not pro­tected. It would be so pro­tected, if at all, not because of the Orders to be made in future, as such, are pro­tected, but because the power actu­ally con­ferred and found in exis­tence in S. 3 is pro­tected. The pro­tec­tion is given to a power which is spec­i­fied and in exis­tence which has to be used for cer­tain pur­poses and not to what may be spec­i­fied in future.” It is thus clear that in view of the law laid down by the Hon’ble Supreme Court no immu­nity is attached to sec­tion 8-A of the Himachal Pradesh Vil­lage Com­mon Lands Act, 1974 with­out the assent of the Pres­i­dent of India. The main ques­tion to be gone into is on what grounds the vires of Sec­tion 8-A can be 125 chal­lenged by the peti­tion­ers. The Hon’ble Supreme Court in the lat­est judg­ment in I.R.Coelho (dead)by LRs. v. State of T.N., (2007)2 SCC1 has held that it will be open to the cit­i­zens to chal­lenge the vires of the Act on the ground that it is viola­tive of the basic struc­ture of the con­sti­tu­tion as well as cer­tain fun­da­men­tal rights which have already been treated as part of the basic struc­ture. In I.R Coelho (dead) by LRs. vs. State of T.N., (1999) 7 SCC 580 their Lord­ships have observed that the incon­sis­ten­cies in Waman Rao case should be rec­on­ciled and Bhim Singh case should also be taken into con­sid­er­a­tion by the larger Bench. Their Lord­ships have made the fol­low­ing obser­va­tions at the time of refer­ring the mat­ter to the larger Bench: The judg­ment of a Con­sti­tu­tion Bench of this Court in Waman Rao v. Union of India, (1981) 2 SCR 1 : (AIR 1981 SC 271), dealt with Art. 31B. It referred to the judg­ment of this Court in the case of Kesa­vananda Bharti, 1973 Suppl SCR 1: (AIR 1973 SC 1461), decided on 24^th April, 1973, wherei it was held by the major­ity “that Par­lia­ment has no power to amend the Con­sti­tu­tion so as to dam­age or destroy its basic or essen­tial fea­tures or its basic struc­ture.” The order in Waman Raoa’s case was that all amend­ments to the Con­sti­tu­tion which were made before 24^th April, 1973 and by which the Ninth Sched­ule was amended from time to time by the inclu­sion of var­i­ous Acts and Reg­u­la­tions therein, were valid and con­sti­tu­tional. Amend­ments to the Con­sti­tu­tion made on or after 24^th April, 1973 by which the Ninth Sched­ule was amended from time to time by the inclu­sion of var­i­ous Acts and Reg­u­la­tions therein were “open to chal­lenge on the ground that they, or any one or more of them are beyond the con­stituent power of the Par­lia­ment since they dam­age the basic and essen­tial fea­tures of the Con­sti­tu­tion or its basic struc­ture. ” The order in Waman Rao “did not pro­nounce upon the valid­ity of such sub­se­quent con­sti­tu­tional amend­ments except to say that if any Act or Reg­u­la­tion included in the Ninth Sched­ule by a con­sti­tu­tional amend­ment made after April 24, 1973 is saved by Art. 31A, or by Art. 31C as it stood prior to its amend­ment by the forty sec­ond amend­ment, the chal­lenge to the valid­ity of the rel­e­vant Con­sti­tu­tional Amend­ment by which that Act 126 or Reg­u­la­tion is put in the Ninth Sched­ule on the ground that the amend­ment dam­ages or destroys a basic or essen­tial fea­ture of the Con­sti­tu­tion or its basic struc­ture as reflected in Art. 14, 19 or 31, will become otiose.” Chan­dra­chud, C. J., in his judg­ment in Waman Rao, said that laws and reg­u­la­tions included in the Ninth Sched­ule prior to 24^th April, 1973 “will not be open to chal­lenge on the ground that they are incon­sis­tent with or take away or abridge any of the rights con­ferred by any of the pro­vi­sions of Part III of the Con­sti­tu­tion. Acts and Reg­u­la­tions which are or will be included in the Ninth Sched­ule on or after April 24, 1973 will not receive the pro­tec­tion of Art. 31B for the plain rea­son that in the face of the judg­ment in Kesa­vanand Bharti (supra) there was no jus­ti­fi­ca­tion for mak­ing addi­tions to the Ninth Sched­ule with a view to con­fer­ring a blan­ket pro­tec­tion on the laws included therein. The var­i­ous con­sti­tu­tional amend­ments by which addi­tions were made to the Ninth Sched­ule on or after April 24, 1973 will be valid only if they do not dam­age or destroy the basic struc­ture of the Constitution”.

 

Bhag­wati, J. deliv­ered a judg­ment that is com­mon to Waman Rao, (AIR 1981 SC 271 and Min­erva Mills Ltd. v. Union of India, (1981) 1 SCR 206 : (AIR 1980 SC 1789). He said that “all con­sti­tu­tional amend­ments made after the deci­sion in Kesha­van­nda Bharti’s case (AIR 1973 SC 1461) would have to be tested by ref­er­ence to the basic struc­ture doc­trine, for Par­lia­ment would then have no excuse for say­ing that it did not know the lim­i­ta­tion on its amend­ing pow­ers.” He added that “in every case where a con­sti­tu­tional amend­ment includes a statute or statutes in the Ninth Sched­ule, its con­sti­tu­tional valid­ity would have to be con­sid­ered by ref­er­ence to the basic struc­ture doc­trine and such con­sti­tu­tional amend­ment would be liable to be declared invalid to the extent to which it dam­ages or destroys the basic struc­ture of the Con­sti­tu­tion by accord­ing pro­tec­tion against vio­la­tion of any par­tic­u­lar fun­da­men­tal right.” The judg­ment in Waman Rao, (AIR 1981 SC 271) needs to be con­sid­ered by a larger Bench so that the appar­ent incon­sis­ten­cies therein are rec­on­ciled and it is made clear whether an Act or Reg­u­la­tion which, or a part of which, is or has been found by this Court to be viola­tive of one or more of the fun­da­men­tal rights 127 con­ferred by Arts. 14, 19, and 31 can be included in the Ninth Sched­ule or whether it is only a con­sti­tu­tional amend­ment amend­ing the Ninth Sched­ule that dam­ages or destroys the basic struc­ture of the Con­sti­tu­tion that can be struck down.

 

The Con­sti­tu­tion Bench that had decided Waman Rao, (AIR 1981 SC 271) also decided the case of Maharao Sahib Sri Bhim Singh Ji v. Union of India, 1985 Suppl (1) SCR 862 : (AIR 1985 SC 1650). The Urban Land (Ceil­ing and Reg­u­la­tion) Act, 1976 was the sub­ject mat­ter of the deci­sion. It had been inserted into the Ninth Sched­ule by the Con­sti­tu­tion (For­ti­eth Amend­ment) Act.

 

Tulza­purkar, J. held the entire Act to be uncon­sti­tu­tional. The other four learned Judges agreed with him to the extent that a part of Sec­tion 27(1) of the Act was uncon­sti­tu­tional. Sec­tion 27(1) read thus : “27 (1). Notwith­stand­ing any­thing con­tained in any other law for the time being in force, but sub­ject to the pro­vi­sions of sub-section (3) of Sec­tion 5 and sub-section (4) of Sec­tion 10, no per­son shall trans­fer by way of sale, mort­gage, gift lease for a period exceed­ing ten years, or oth­er­wise, any urban or urban­is­able land with a build­ing (whether con­structed before or after the com­mence­ment of this Act) or a por­tion only of such build­ing for a period of ten years of such com­mence­ment or from the date on which the build­ing is con­structed, whichever is later, except with the pre­vi­ous per­mis­sion in writ­ing of the com­pe­tent author­ity.” Tulza­purkar, J., Krishna Iyer, J. and A.P. Sen, J. deliv­ered sep­a­rate judg­ments. Chan­dra­chud, C.J., on behalf of him­self and Bhag­wati, J., stated that they would deliver a detailed judg­ment later, but, later, they passed an order stat­ing that they had gone through the judg­ment of Krishna Iyer, J. and found that there was noth­ing that they could use­fully add to it. Tulza­purkar, J. struck down Sec­tion 27(1) for the rea­son that it did not ade­quately con­trol the arbi­trary exer­cise of the power to grant or refuse the permission.

 

The pro­vi­sion was found by him to be viola­tive of Art. 14 and was, there­fore, struck down as being ultra vires and uncon­di­tional. A.P.

 

Sen, J. took the view that there was no jus­ti­fi­ca­tion for the freez­ing of trans­ac­tion by way of sale, mort­gage, gift or lease or vacant land 128 or build­ing for a period exceed­ing ten years even though such land, with or with­out build­ing thereon, fell within the ceil­ing lim­its. The right to acquire, hold and dis­pose of prop­erty guar­an­teed to a cit­i­zen under Art. 19(1)(f) car­ried with it the right not to hold any prop­erty. It was dif­fi­cult to appre­ci­ate how a cit­i­zen could be com­pelled to own prop­erty against his will. If vacant land owned by a per­son fell within the ceil­ing lim­its for an urban agglo­rmer­a­tion, he was out­side the purview of the Act and could not be gov­erned by any of the pro­vi­sions of the Act. It was, there­fore, held by the learned Judge that the pro­vi­sions of Sec­tion 27(1) were invalid inso­far as they sought to affect a citizen’s right to dis­pose of his urban prop­erty in an urban agglom­er­a­tion within the ceil­ing lim­its, Krishna Iyer, J. did not dis­cuss the pro­vi­sions of Sec­tion 27(1), but he agreed with the learned Chief Jus­tice “regard­ing the par­tial inval­i­da­tion of Sec­tion 27(1).” The learned Chief Jus­tice had said in his brief ear­lier order that Sec­tion 27(1) was invalid inso­far as it imposed a restric­tion on the trans­fer of any urban or urban­is­able prop­erty within the ceil­ing area. Such prop­erty was trans­fer­able with­out the con­straints men­tioned in Sec­tion 27(1).

 

What is rel­e­vant is that whereas Tulza­purkar, J. and A.P. Sen, J.

 

struck down Sec­tion 27(1), in part, for vio­la­tion of the fun­da­men­tal rights con­ferred by Arts. 14 and 19(1)(f) respec­tively, with­out more Krishna Iyer, J. said : “What is a betrayal of the basic fea­ture is not a mere vio­la­tion of Art.

 

14 but a shcok­ing, uncon­scionable or unscrupu­lous trav­esty of the quin­tes­sence of equal jus­tice. If a leg­is­la­tion does go that far it shakes the demostratic foun­da­tion and must suf­fer the death penalty.” The deci­sion in Bhim Singh Ji case (AIR 1985 SC 1650) will also have to be con­sid­ered by the larger Bench for the pur­poses of arriv­ing at the con­clu­sion aforementioned.

 

We deem it fit, accord­ingly, to refer these writ peti­tions and appeals for deci­sion to a larger Bench prefer­ably of nine learned Judges. The papers and pro­ceed­ings shall be placed before the Hon’ble the Chief Jus­tice of India for appro­pri­ate orders.” 129 Pur­suant to the judg­ment (1999) 7 SCC 580, the entire issue with regard to the extent of immu­nity pro­vided by Arti­cle 31-B, extent of judi­cial review and doc­trine of basic struc­ture vis-a-vis Part-III of the Con­sti­tu­tion of India was con­sid­ered in detail by a Bench of nine Hon’ble Judges in (2007) 2 SCC-1 I.R.

Coelho Vs. State of T.N.

The extent of immu­nity pro­vided by Arti­cle 31-B has been dealt with by the Hon’ble Supreme Court in the fol­low­ing man­ner: Next, we exam­ine the extent of immu­nity that is pro­vided by Arti­cle 31B. The prin­ci­ple that con­sti­tu­tional amend­ments which vio­late the basic struc­ture doc­trine are liable to be struck down will also apply to amend­ments made to add laws in the Ninth Sched­ule is the view expressed by Chief Jus­tice Sikri. Sub­stan­tially, sim­i­lar sep­a­rate opin­ions were expressed by She­lat, Grover, Hegde, Mukher­jea and Reddy, JJ. In the four dif­fer­ent opin­ions six learned judges came to sub­stan­tially the same con­clu­sion. These judges read an implied lim­i­ta­tion on the power of the Par­lia­ment to amend the Con­sti­tu­tion. Jus­tice Khanna also opined that there was implied lim­i­ta­tion in the shape of the basic struc­ture doc­trine that lim­its the power of Par­lia­ment to amend the Con­sti­tu­tion but the learned Judge upheld 29^th Amend­ment and did not say, like remain­ing six Judges, that the Twenty-Ninth Amend­ment will have to be exam­ined by a smaller Con­sti­tu­tion Bench to find out whether the said amend­ment vio­lated the basic struc­ture the­ory or not. This gave rise to the argu­ment that fun­da­men­tal rights chap­ter is not part of basic struc­ture. Jus­tice Khanna, how­ever, does not so say in Kesa­vananda Bharati’s case. There­fore, Kesa­vananda Bharati’s case can­not be said to have held that fun­da­men­tal rights chap­ter is not part of basic struc­ture. Jus­tice Khanna, while con­sid­er­ing Twenty-Ninth amend­ment, had obvi­ously in view the laws that had been placed in the Ninth Sched­ule by the said amend­ment related to the agrar­ian reforms. Jus­tice Khanna did not want to ele­vate the right to prop­erty under Arti­cle 19(1)(f) to the level and sta­tus of basic struc­ture or basic frame-work of the Con­sti­tu­tion, that explains the ratio of Kesa­vananda Bharati’s case. Fur­ther, doubt, if any, as to the opin­ion of Jus­tice Khanna stood resolved on the clar­i­fi­ca­tion given in Indira Gandhi’s case, by the learned Judge that 130 in Kesa­vananda Bharati’s case, he never held that fun­da­men­tal rights are not a part of the basic struc­ture or frame­work of the Constitution.

 

If the doc­trine of basic struc­ture pro­vides a touch­stone to test the amend­ing power or its exer­cise, there can be no doubt and it has to be so accepted that Part III of the con­sti­tu­tion has a key role to play in the appli­ca­tion of the said doctrine.

 

Regard­ing the sta­tus and stature in respect of fun­da­men­tal rights in Con­sti­tu­tional scheme, it is to be remem­bered that Fun­da­men­tal Rights are those rights of cit­i­zens or those neg­a­tive oblig­a­tions of the State which do not per­mit encroach­ment on indi­vid­ual lib­er­ties. The State is to deny no one equal­ity before the law. The object of the Fun­da­men­tal Rights is to fos­ter the social rev­o­lu­tion by cre­at­ing a soci­ety egal­i­tar­ian to the extent that all cit­i­zens are to be equally free from coer­cion or restric­tion by the State. By enact­ing Fun­da­men­tal Rights and Direc­tive Prin­ci­ples which are neg­a­tive and pos­i­tive oblig­a­tions of the States, the Con­stituent Assem­bly made it the respon­si­bil­ity of the Gov­ern­ment to adopt a mid­dle path between indi­vid­ual lib­erty and pub­lic good.

 

Fun­da­men­tal Rights and Direc­tive Prin­ci­ples have to be balanced.

 

That bal­ance can be tilted in favour of the pub­lic good. The bal­ance, how­ever, can­not be over­turned by com­pletely over­rid­ing indi­vid­ual lib­erty. This bal­ance is an essen­tial fea­ture of the Constitution.

 

Fun­da­men­tal rights enshrined in Part III were added to the Con­sti­tu­tion as a check on the State power, par­tic­u­larly the leg­isla­tive power. Through Arti­cle 13, it is pro­vided that the State can­not make any laws that are con­trary to Part III. The framers of the Con­sti­tu­tion have built a wall around cer­tain parts of fun­da­men­tal rights, which have to remain for­ever, lim­it­ing abil­ity of major­ity to intrude upon them. That wall is the ‘Basic Struc­ture’ doc­trine. Under Arti­cle 32, which is also part of Part III, Supreme Court has been vested with the power to ensure com­pli­ance of Part III. The respon­si­bil­ity to judge the con­sti­tu­tion­al­ity of all laws is that of judi­ciary. Thus, when power under Arti­cle 31B is exer­cised, the leg­is­la­tions made com­pletely immune from Part III results in a direct way out, of the check of Part III, includ­ing that of Arti­cle 32. It can­not be said that the same Con­sti­tu­tion that pro­vides for a check 131 on leg­isla­tive power, will decide whether such a check is nec­es­sary or not. It would be a nega­tion of the Con­sti­tu­tion. In Waman Rao’s case, while dis­cussing the appli­ca­tion of basic struc­ture doc­trine to the first amend­ment, it was observed that the mea­sure of the per­mis­si­bil­ity of an amend­ment of a plead­ing is how far it is con­sis­tent with the orig­i­nal; you can­not by an amend­ment trans­form the orig­i­nal into oppo­site of what it is. For that pur­pose, a com­par­i­son is under­taken to match the amend­ment with the orig­i­nal. Such a com­par­i­son can yield fruit­ful results even in the rar­efied sphere of con­sti­tu­tional law.

 

It is also con­tended for the respon­dents that Arti­cle 31A excludes judi­cial review of cer­tain laws from the appli­ca­tions of Arti­cles 14 and 19 and that Arti­cle 31A has been held to be not viola­tive of the basic struc­ture. The con­tention, there­fore, is that exclu­sion of judi­cial review would not make the Ninth Sched­ule law invalid. We are not hold­ing such law per se invalid but, exam­in­ing the extent of the power which the Leg­is­la­ture will come to possess.

 

Arti­cle 31A does not exclude uncat­a­logued num­ber of laws from chal­lenge on the basis of Part III. It pro­vides for a stan­dard by which laws stand excluded from Judi­cial Review. Like­wise, Arti­cle 31C applies as a yard­stick the cri­te­ria of sub-clauses (b) and © of Arti­cle 39 which refers to equi­table dis­tri­b­u­tion of resources.

 

The Par­lia­ment has power to amend the pro­vi­sions of Part III so as to abridge or take away fun­da­men­tal rights, but that power is sub­ject to the lim­i­ta­tion of basic struc­ture doc­trine. Whether the impact of such amend­ment results in vio­la­tion of basic struc­ture has to be exam­ined with ref­er­ence to each indi­vid­ual case. Take the exam­ple of free­dom of Press which, though not sep­a­rately and specif­i­cally guar­an­teed, has been read as part of Arti­cle 19(1)(a). If Arti­cle 19(1)(a) is sought to be amended so as to abro­gate such right (which we hope will never be done), the accep­tance of respon­dents con­tention would mean that such amend­ment would fall out­side the judi­cial scrutiny when the law cur­tail­ing these rights is placed in the Ninth Sched­ule as a result of immu­nity granted by Arti­cle 31B. The impact of such an amend­ment shall have to be tested on the touch­stone of rights and free­doms guar­an­teed by Part III of the Con­sti­tu­tion. In a given case, even abridge­ment may destroy the real free­dom of the Press and, thus, destruc­tive of the 132 basic struc­ture. Take another exam­ple. The sec­u­lar char­ac­ter of our Con­sti­tu­tion is a mat­ter of con­clu­sion to be drawn from var­i­ous Arti­cles con­fer­ring fun­da­men­tal rights; and if the sec­u­lar char­ac­ter is not to be found in Part III, it can­not be found any­where else in the Con­sti­tu­tion because every fun­da­men­tal right in Part III stands either for a prin­ci­ple or a mat­ter of detail. There­fore, one has to take a syn­op­tic view of the var­i­ous Arti­cles in Part III while judg­ing the impact of the laws incor­po­rated in the Ninth Sched­ule on the Arti­cles in Part III. It is not nec­es­sary to mul­ti­ply the illustrations.

 

After enun­ci­a­tion of the basic struc­ture doc­trine, full judi­cial review is an inte­gral part of the con­sti­tu­tional scheme. Jus­tice Khanna in Kesa­vananda Bharati’s case was con­sid­er­ing the right to prop­erty and it is in that con­text it was said that no Arti­cle of the Con­sti­tu­tion is immune from the amenda­tory process. We may recall what Jus­tice Khanna said while deal­ing with the words “amend­ment of the Con­sti­tu­tion”. His Lord­ship said that these words with all the wide sweep and ampli­tude can­not have the effect of destroy­ing or abro­gat­ing the basic struc­ture or frame­work of the Con­sti­tu­tion. The opin­ion of Jus­tice Khanna in Indira Gandhi clearly indi­cates that the view in Kesa­vananda Bharati’s case is that at least some fun­da­men­tal rights do form part of basic struc­ture of the Con­sti­tu­tion. Detailed dis­cus­sion in Kesa­vananda Bharati’s case to demon­strate that the right to prop­erty was not part of basic struc­ture of the Con­sti­tu­tion by itself shows that some of the fun­da­men­tal rights are part of the basic struc­ture of the Con­sti­tu­tion. The place­ment of a right in the scheme of the Con­sti­tu­tion, the impact of the offend­ing law on that right, the effect of the exclu­sion of that right from judi­cial review, the abro­ga­tion of the prin­ci­ple on the essence of that right is an exer­cise which can­not be denied on the basis of fic­tional immu­nity under Arti­cle 31-B.

 

The extent of judi­cial review has been dealt with by the larger Bench in the fol­low­ing man­ner: “We are con­sid­er­ing the ques­tion as to the extent of judi­cial review per­mis­si­ble in respect of Ninth Sched­ule laws in the light of the basic struc­ture the­ory pro­pounded in Kesa­vananda Bharati’s 133 case. In this con­nec­tion, it is nec­es­sary to exam­ine the nature of the con­stituent power exer­cised in amend­ing a Constitution.

 

Real­is­ing that it is nec­es­sary to secure the enforce­ment of the Fun­da­men­tal Rights, power for such enforce­ment has been vested by the Con­sti­tu­tion in the Supreme Court and the High Courts. Judi­cial Review is an essen­tial fea­ture of the Constitution.

 

It gives prac­ti­cal con­tent to the objec­tives of the Con­sti­tu­tion embod­ied in Part III and other parts of the Con­sti­tu­tion. It may be noted that the mere fact that equal­ity which is a part of the basic struc­ture can be excluded for a lim­ited pur­pose, to pro­tect cer­tain kinds of laws, does not pre­vent it from being part of the basic struc­ture. There­fore, it fol­lows that in con­sid­er­ing whether any par­tic­u­lar fea­ture of the Con­sti­tu­tion is part of the basic struc­ture — rule of law, sep­a­ra­tion of power — the fact that lim­ited excep­tions are made for lim­ited pur­poses, to pro­tect cer­tain kind of laws, does not mean that it is not part of the basic structure.

 

Every amend­ment to the Con­sti­tu­tion whether it be in the form of amend­ment of any Arti­cle or amend­ment by inser­tion of an Act in the Ninth Sched­ule has to be tested by ref­er­ence to the doc­trine of basic struc­ture which includes ref­er­ence to Arti­cle 21 read with Arti­cle 14, Arti­cle 15 etc. As stated, laws included in the Ninth Sched­ule do not become part of the Con­sti­tu­tion, they derive their valid­ity on account of the exer­cise under­taken by the Par­lia­ment to include them in the Ninth Sched­ule. That exer­cise has to be tested every time it is under­taken. In respect of that exer­cise the prin­ci­ple of com­pat­i­bil­ity will come in. One has to see the effect of the impugned law on one hand and the exclu­sion of Part III in its entirety at the will of the Parliament.

 

In Waman Rao, it was accord­ingly rightly held that the Acts inserted in the Ninth Sched­ule after 24^th April, 1973 would not receive the full protection.

 

The doc­trine of basic struc­ture as pro­pounded in Kesa­vananda Bharati case has been fur­ther expounded: Arti­cle 31-B gives val­i­da­tion based on fic­tional immu­nity. In judg­ing the valid­ity of con­sti­tu­tional amend­ment we have to be guided by the impact test. The basic struc­ture doc­trine requires the State to 134 jus­tify the degree of inva­sion of fun­da­men­tal rights. Par­lia­ment is pre­sumed to leg­is­late com­pat­i­bly with the fun­da­men­tal rights and this is where Judi­cial Review comes in. The greater the inva­sion into essen­tial free­doms, greater is the need for jus­ti­fi­ca­tion and deter­mi­na­tion by court whether inva­sion was nec­es­sary and if so to what extent. The degree of inva­sion is for the Court to decide.

 

Com­pat­i­bil­ity is one of the species of Judi­cial Review which is premised on com­pat­i­bil­ity with rights regarded as fundamental.

 

The power to grant immu­nity, at will, on fic­tional basis, with­out full judi­cial review, will nul­lify the entire basic struc­ture doc­trine. The golden tri­an­gle referred to above is the basic fea­ture of the Con­sti­tu­tion as it stands for equal­ity and rule of law.

 

The larger Bench had drawn the fol­low­ing con­clu­sions after tak­ing into con­sid­er­a­tion the entire gamut with regard to extent of immu­nity pro­vided by Arti­cle 31-B.

The broader con­tours of the judi­cial review and doc­trine of basic struc­ture: (i) A law that abro­gates or abridges rights guar­an­teed by Part III of the Con­sti­tu­tion may vio­late the basic struc­ture doc­trine or it may not. If for­mer is the con­se­quence of law, whether by amend­ment of any Arti­cle of Part III or by an inser­tion in the Ninth Sched­ule, such law will have to be inval­i­dated in exer­cise of judi­cial review power of the Court. The valid­ity or inva­lid­ity would be tested on the prin­ci­ples laid down in this judgment.

 

(ii) The major­ity judg­ment in Kesa­vananda Bharati’s case read with Indira Gandhi’s case, requires the valid­ity of each new con­sti­tu­tional amend­ment to be judged on its own mer­its. The actual effect and impact of the law on the rights guar­an­teed under Part III has to be taken into account for deter­min­ing whether or not it destroys basic struc­ture. The impact test would deter­mine the valid­ity of the challenge.

 

(iii) All amend­ments to the Con­sti­tu­tion made on or after 24^th April, 1973 by which the Ninth Sched­ule is amended by inclu­sion of var­i­ous laws therein shall have to be tested on the touch­stone of the basic or essen­tial fea­tures of the Con­sti­tu­tion as reflected in 135 Arti­cle 21 read with Arti­cle 14, Arti­cle 19, and the prin­ci­ples under­ly­ing them. To put it dif­fer­ently even though an Act is put in the Ninth Sched­ule by a con­sti­tu­tional amend­ment, its pro­vi­sions would be open to attack on the ground that they destroy or dam­age the basic struc­ture if the fun­da­men­tal right or rights taken away or abro­gated per­tains or per­tain to the basic structure.

 

(iv) Jus­ti­fi­ca­tion for con­fer­ring pro­tec­tion, not blan­ket pro­tec­tion, on the laws included in the Ninth Sched­ule by Con­sti­tu­tional Amend­ments shall be a mat­ter of Con­sti­tu­tional adju­di­ca­tion by exam­in­ing the nature and extent of infrac­tion of a Fun­da­men­tal Right by a statute, sought to be Con­sti­tu­tion­ally pro­tected, and on the touch­stone of the basic struc­ture doc­trine as reflected in Arti­cle 21 read with Arti­cle 14 and Arti­cle 19 by appli­ca­tion of the “rights test” and the “essence of the right” test tak­ing the syn­op­tic view of the Arti­cles in Part III as held in Indira Gandhi’s case. Apply­ing the above tests to the Ninth Sched­ule laws, if the infrac­tion affects the basic struc­ture then such a law(s) will not get the pro­tec­tion of the Ninth Schedule.

 

This is our answer to the ques­tion referred to us vide Order dated 14^th Sep­tem­ber, 1999 in I.R. Coelho v. State of Tamil Nadu [(1999) 7 SCC 580].

 

(v) If the valid­ity of any Ninth Sched­ule law has already been upheld by this Court, it would not be open to chal­lenge such law again on the prin­ci­ples declared by this judg­ment. How­ever, if a law held to be viola­tive of any rights in Part III is sub­se­quently incor­po­rated in the Ninth Sched­ule after 24^th April, 1973, such a violation/infraction shall be open to chal­lenge on the ground that it destroys or dam­ages the basic struc­ture as indi­cated in Arti­cle 21 read with Article14, Arti­cle 19 and the prin­ci­ples under­ly­ing thereunder.

 

(vi) Action taken and trans­ac­tions final­ized as a result of the impugned Acts shall not be open to challenge.

 

The amend­ment car­ried out on the basis of Act No.18 of 1981 whereby sec­tion 8-A has been inserted will not enjoy any immu­nity as enjoyed by the Prin­ci­pal Act being included in Sched­ule –IX of the Con­sti­tu­tion of India. Sec­tion 8-A could only enjoy immu­nity under Schedule-IX if the same had been placed by 136 way of amend­ment car­ried out in the Con­sti­tu­tion as per Arti­cle 368 of the Con­sti­tu­tion of India in the IXth Sched­ule. The vires of sec­tion 8-A can be chal­lenged by the peti­tion­ers under Arti­cles 14 and 19 of the Con­sti­tu­tion of India since sec­tion 8-A does not enjoy the pro­tec­tion under Arti­cle 31-A of the Con­sti­tu­tion of India. The uti­liza­tion of the land for the devel­op­ment has been given restric­tive mean­ing by this Court to bring it in tune with the agrar­ian reform.

8. Whether sec­tion 8-A could be inserted in the year 1981 in the Prin­ci­pal Act by invok­ing sec­tion 14 of the Act? Could sec­tion 8-A be incor­po­rated in the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 on the strength of sec­tion 14 of the Prin­ci­pal Act? We have already held that the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 is an agrar­ian piece of leg­is­la­tion. The State­ment of Objects and Rea­sons for bring­ing out the Act No.18 of 1981 is that the land vested under sec­tion 3 of the Act, also com­prises of such land which was not suit­able for either of the pur­poses men­tioned in sec­tion 8 of the Act, can prof­itably be uti­lized for the devel­op­ment of indus­trial and tourism purposes.

Sec­tion 14 of the H.P. Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion Act, 1974 reads thus: “Power to remove dif­fi­cul­ties.- If any dif­fi­culty arises in giv­ing effect to the pro­vi­sions of this Act, the State Gov­ern­ment, may, by order pub­lished in the Offi­cial Gazette, make such pro­vi­sions or give such direc­tions not incon­sis­tent with the pro­vi­sions of this Act, as may appear to it to be nec­es­sary or expe­di­ent for the removal of the dif­fi­culty.” The con­tention of the learned Advo­cate Gen­eral is that the amend­ment has been car­ried out by way of Act No. 18 of 1981 under sec­tion 14 the Prin­ci­pal Act. We do not sub­scribe to the sub­mis­sion made by the learned Advo­cate Gen­eral in view of the law laid down by their Lord­ships in fol­low­ing cases: 137 Their Lord­ships of the Hon’ble Supreme Court have suc­cinctly explained the prin­ci­ples for invok­ing the removal of dif­fi­culty clause in M/s Jalan Trad­ing Com­pany ver­sus Mill Maz­door Sabha, AIR 1967 SC 691. Their Lord­ships of the Hon’ble Supreme have held that sub sec­tion (2) of sec­tion 37 pur­ports to make the order of the Cen­tral Gov­ern­ment in such cases final accen­tu­ates the vice in sub sec­tion (1) since by enact­ing that pro­vi­sion the Gov­ern­ment is made the sole judge whether dif­fi­culty or doubt had arisen in giv­ing effect to the pro­vi­sions of the Act, whether it is nec­es­sary or expe­di­ent to remove the doubt or dif­fi­culty, and whether the pro­vi­sion enacted is not incon­sis­tent with the pur­poses of the Act. Their Lord­ships have held as under: “But S. 37 which autho­rizes the Cen­tral Gov­ern­ment to pro­vide by order for removal of doubts or dif­fi­cul­ties in giv­ing effect to the pro­vi­sions of the Act, in our judg­ment, del­e­gates leg­isla­tive power which is not per­mis­si­ble. Con­di­tion of the applic­a­bil­ity of S. 37 is the aris­ing of the doubt or dif­fi­culty in giv­ing effect to the pro­vi­sions of the Act. By pro­vid­ing that the order made must not be con­sis­tent with the pur­poses of the Act, S. 37 is not saved from the vice of del­e­ga­tion of leg­isla­tive author­ity. The sec­tion autho­rizes the Gov­ern­ment to deter­mine for itself what the pur­poses of the Act are and to make pro­vi­sions for removal of doubts or dif­fi­cul­ties. If in giv­ing effect to the pro­vi­sions of the Act any doubt or dif­fi­culty arises, nor­mally it is for the Leg­is­la­ture to remove that doubt or dif­fi­culty. Power to remove the doubt or dif­fi­culty by alter­ing the pro­vi­sions of the Act would in sub­stance amount to exer­cise of leg­isla­tive author­ity and that can­not be del­e­gated to an exec­u­tive author­ity. Sub sec­tion (2) of sec­tion 37 pur­ports to make the order of the Cen­tral Gov­ern­ment in such cases final accen­tu­ates the vice in sub sec­tion (1) since by enact­ing that pro­vi­sion the Gov­ern­ment is made the sole judge whether dif­fi­culty or doubt had arisen in giv­ing effect to the pro­vi­sions of the Act, whether it is nec­es­sary or expe­di­ent to remove the doubt or dif­fi­culty, and whether the pro­vi­sion enacted is not incon­sis­tent with the pur­poses of the Act.” 138 The Hon’ble Supreme Court has held in Straw Prod­ucts Lim­ited ver­sus Income Tax Offi­cer, Bhopal, AIR 1968 SC 579 that the sec­tion did not make the aris­ing of the dif­fi­culty a mat­ter of sub­jec­tive sat­is­fac­tion of the Gov­ern­ment. It is a con­di­tion prece­dent to the exer­cise of the power and exis­tence of the con­di­tion if chal­lenged must be estab­lished as an objec­tive fact. Their Lord­ships have held as under: “But the impugned order seeks to alter the con­no­ta­tion of that expres­sion. The assessee con­tends that no dif­fi­culty arose or could arise in giv­ing effect to the pro­vi­sions relat­ing to the allowance of depre­ci­a­tion under the Indian Income-tax Act to the merged States after the pro­mul­ga­tion of the Tax­a­tion Laws (Merged States) Removal of Dif­fi­cul­ties) Order, 1949, and the Cen­tral Gov­ern­ment assumed, in issu­ing the impugned Order under Sec­tion 6 of Act 67 of 1949, pow­ers which were not invested by the Act and on that account the Order is invalid. The Union of India resists that plea. The High Court of Mad­hya Pradesh held that the Cen­tral Gov­ern­ment hav­ing issued the 1962 Order, it must be deemed to be held that dif­fi­cul­ties had arisen in giv­ing effect to the pro­vi­sions of Act 67 of 1949 and the opin­ion of the Cen­tral Gov­ern­ment in that behalf was con­clu­sive. The Court observed: “The lan­guage of the sec­tion clearly shows that it is for the Cen­tral Gov­ern­ment to decide, as a pure act of admin­is­tra­tion, whether an obsta­cle or imped­i­ment exists in giv­ing effect to the pro­vi­sions of the Act, Rule or Order referred to in Sec­tion 6 which calls for an order for sur­mount­ing the obsta­cle or remov­ing the imped­i­ment. No doubt Sec­tion 6 does not expressly say that the Cen­tral Gov­ern­ment should be sat­is­fied as to the “exis­tence of the dif­fi­culty” for the removal of which the mak­ing of an Order is nec­es­sary. But it is implicit in the lan­guage of sec­tion 6 that the Cen­tral Gov­ern­ment should be sat­is­fied that a dif­fi­cult exists in giv­ing effect to the pro­vi­sions of any Act, Rule or Order 139 extended by Sec­tion 3 to the Merged States. If the exis­tence of any “dif­fi­culty” depen­dents on the sat­is­fac­tion of the Cen­tral Gov­ern­ment, then it fol­lows that the con­di­tion about the exis­tence of any dif­fi­culty, for the removal of which the Cen­tral Gov­ern­ment is empow­ered to make an Order, is a sub­jec­tive con­di­tion inca­pable of being deter­mined by any one other than the Cen­tral Gov­ern­ment which has to take action in the mat­ter.” In so observ­ing, in our judg­ment, the High Court plainly erred. Exer­cise of the power to make pro­vi­sions or to issue direc­tions as may appear nec­es­sary to the Cen­tral Gov­ern­ment is con­di­tioned by the exis­tence of a dif­fi­culty aris­ing in giv­ing effect to the pro­vi­sions of any Act, rule or order. The sec­tion did not make the aris­ing of the dif­fi­culty a mat­ter of sub­jec­tive sat­is­fac­tion of the Gov­ern­ment. It is the con­di­tion prece­dent to the exer­cise of the power and exis­tence of the con­di­tion if chal­lenged must be estab­lished as an objec­tive fact.” Sim­i­larly, the Hon’ble Supreme Court has explained the removal of dif­fi­culty clause, the nature and neces­sity in Madeva Upen­dra Sinai and oth­ers ver­sus Union of India, (1975) 3 SCC 765 in the fol­low­ing man­ner: “To keep pace with the rapidly increas­ing respon­si­bil­i­ties of a wel­fare demo­c­ra­tic State, the Leg­is­la­ture has to turn out a plethora of hur­ried leg­is­la­tion, the vol­ume of which is often matched with its com­plex­ity. Under con­di­tions of extreme pres­sue, with heavy demands on the time of the Leg­is­la­ture and the endurance and skill of the drafts­man, it is well night impos­si­ble to fore­see all the cir­cum­stances to deal with which a statute is enacted or to antic­i­pate all the dif­fi­cul­ties that might arise in its work­ing due to pecu­liar local con­di­tions or even a local law. This is par­tic­u­larly true when Par­lia­ment under­takes leg­is­la­tion which gives a new dimen­sion to socio-economic activ­i­ties of the State or extends the exist­ing Indian laws to new ter­ri­to­ries or areas freshly merged in the Union of India. In order to obvi­ate the 140 neces­sity of approach­ing the Leg­is­la­ture for removal of every dif­fi­culty, how­so­ever triv­ial, encoun­tered in the enforce­ment of a statute, by going through the time-consuming amenda­tory process, the Leg­is­la­ture some­times thinks it expe­di­ent to invest the Exec­u­tive with a very lim­ited power to make minor adap­ta­tions and periph­eral adjust­ments in the statute, for mak­ing its imple­men­ta­tion effec­tive, with­out touch­ing its sub­stance. That is why the “removal of dif­fi­culty clause”, once frowned upon and nick-named as “Henry VIII clause” in scorn­ful com­mem­o­ra­tion of the abso­lutist ways in which that Eng­lish King got the “dif­fi­cul­ties” in enforc­ing his auto­cratic will removed through the instru­men­tal­i­ties of a servile Par­lia­ment, now finds accep­tance as a prac­ti­cal neces­sity, in sev­eral India statutes of post inde­pen­dence era.” In view of the law laid down by the Hon’ble Supreme Court and after read­ing all the sec­tions of the Prin­ci­pal Act har­mo­niously, we are of the firm view that there was no dif­fi­culty in giv­ing effect to the Prin­ci­pal Act. The deci­sion was required to be taken objec­tively and not blurtly. The dif­fi­culty must arise in giv­ing the effect to the pro­vi­sions of the Par­ent Act and not dif­fi­culty aris­ing ali­unde, or an extra­ne­ous difficulty.

Con­sti­tu­tional Law –duty of the Courts The Hon’ble Supreme Court has held in K.M. Kun­haham­mad etc ver­sus State of Ker­ala and oth­ers, AIR 1978 SC 771 that the judi­cial approach should be dynamic rather than sta­tic prag­matic and not pedan­tic and elas­tic rather than rigid. Their Lord­ships have held as under “Before how­ever tak­ing up the other two points raised by coun­sel for the appel­lants which were pressed before us in this Court it may be nec­es­sary to set out the approach which a Court has to make and the prin­ci­ples by which it has to be guided in such matters.

 

Courts inter­pret the con­sti­tu­tional pro­vi­sions against the social set­ting of the coun­try so as to show a com­plete con­scious­ness and deep aware­ness of the grow­ing require­ments of the soci­ety, the increas­ing needs of the nation, the burn­ing prob­lems of the day and 141 the com­plex issues fac­ing the peo­ple which the leg­is­la­ture in its wis­dom, through ben­e­fi­cial leg­is­la­tion seeks to solve. The judi­cial approach should be dynamic rather than sta­tic prag­matic and not pedan­tic and elas­tic rather than rigid. It must take into con­sid­er­a­tion the chang­ing trends of eco­nomic though, the tem­per of the times and the liv­ing aspi­ra­tions and feel­ings of the people.

 

This Court while act­ing as a sen­tinel on the qui vive to pro­tect fun­da­men­tal rights guar­an­teed to the cit­i­zens of the coun­try must try to strike a just bal­ance between the fun­da­men­tal rights and the larger and broader inter­ests of soci­ety, so that when such a right clashes with the larger inter­est of the coun­try it must yield to the lat­ter. Empha­siz­ing the rule of Courts in such mat­ters this Court in the case of Jyoti Per­shad v. Admin­is­tra­tor for the Union Ter­ri­tory of Delhi, (1962) 2 SCR 125 at p. 148: (AIR 1961 SC 1602 at p. 1613) observed as fol­lows: “Where the leg­is­la­ture ful­fils its pur­pose and enacts laws, which in its wis­dom, is con­sid­ered nec­es­sary for the solu­tion of what after all is a very human prob­lem the tests of “rea­son­able­ness” have to be viewed in the con­text of the issues which faced the leg­is­la­ture. In the con­struc­tion of such laws and par­tic­u­larly in judg­ing of their valid­ity the Courts have nec­es­sar­ily to approach it from the point of view of fur­ther­ing the social inter­est which it is the pur­pose of the leg­is­la­tion to pro­mote, for the Courts are not, in these mat­ters, func­tion­ing as it were in vacuo, but as parts of a soci­ety which is try­ing by enacted law, to solve its prob­lems and achieve a social con­cord and peace­ful adjust­ment and thus fur­ther­ing the moral and mate­r­ial progress of the com­mu­nity as a whole.” Their Lord­ships of the Hon’ble Supreme Court in Lin­gappa Pochanna Appeal­war ver­sus State of Maha­rash­tra and another, AIR 1985 SC 389 have held that law should be used as an instru­ment of dis­trib­u­tive jus­tice to achieve a fair divi­sion of wealth among the mem­bers of soci­ety based upon the prin­ci­ple: ‘from each accord­ing to his capac­ity, to each accord­ing to his needs’.

Their Lord­ships have held as under: 142 “The present leg­is­la­tion is a typ­i­cal illus­tra­tion of the con­cept of dis­trib­u­tive jus­tice, as mod­ern jurispru­dents know it. Leg­is­la­tors, Judges and admin­is­tra­tors are now famil­iar with the con­cept of dis­trib­u­tive jus­tice. Our Con­sti­tu­tion per­mits and even directs the State to admin­is­ter what may be termed ‘dis­trib­u­tive jus­tice’. The con­cept of dis­trib­u­tive jus­tice in the sphere of law mak­ing con­notes, inter alia, the removal of eco­nomic inequal­i­ties and rec­ti­fy­ing the injus­tice result­ing from deal­ings or trans­ac­tions between unequal in soci­ety. Law should be used as an instru­ment of dis­trib­u­tive jus­tice to achieve a fair divi­sion of wealth among the mem­bers of soci­ety based upon the prin­ci­ple: ‘From each accord­ing to his capac­ity, to each accord­ing to his needs.” Dis­trib­u­tive jus­tice com­pre­hends more than achiev­ing less­en­ing of inequal­i­ties by dif­fer­en­tial tax­a­tion, giv­ing debt relief or dis­tri­b­u­tion of prop­erty owned by one to many who have none by impos­ing ceil­ing on hold­ings, both agri­cul­tural and urban, or by direct reg­u­la­tion of con­trac­tual trans­ac­tions by for­bid­ding cer­tain trans­ac­tions and per­haps, by requir­ing oth­ers. It also means that those who have been deprived of their prop­er­ties by uncon­scionable bar­gain­ing should be restored their prop­erty. All such laws may take the form of forced redis­tri­b­u­tion of wealth as a means of achiev­ing a fair divi­sion of mate­r­ial resources among the mem­bers of soci­ety or there may be leg­isla­tive con­trol of unfair agree­ments.” The con­cept of social jus­tice has been elu­ci­dated by the Madras High Court in Srid­ha­ran Motor Ser­vice, Attur ver­sus Indus­trial Tri­bunal, Madras, (1969) 1 LLJ 380 as under: “Con­cepts of social jus­tice have var­ied with age and clime. What would have appeared to be indu­bitable social jus­tice to a Nor­man or Saxon in the days of William the Con­queror will not be rec­og­nized as such in Eng­land today. What may appear to be incon­tro­vert­ible social jus­tice to a res­i­dent of Que­bee may wear a dif­fer­ent aspect to a res­i­dent of Peking. If it could be pos­si­ble for Con­fu­cius, Manu, Ham­murabi and Solomon to meet together at a con­fer­ence table I doubt whether they would be able to evolve agreed for­mu­lae as to what con­sti­tutes social jus­tice, which is a very con­tro­ver­sial field.

 

Courts and tri­bunals cre­ated by the law must guide them­selves by the direc­tions and pri9nci0les embod­ied in the law. If the law declares that a line or course of con­duct is ille­gal they must give effect to that dec­la­ra­tion. In coun­tries with demo­c­ra­tic forms of Gov­ern­ment pub­lic opin­ion and the law act and react on each other.

 

143 Some­times the law sets the pace and pub­lic opin­ion catches up with the law. In other cases where the law lags behind pub­lic opin­ion the pres­sure of the opin­ion brings about a change in the law.” A poetic tes­ta­ment to the cru­sade for jus­tice can be summed up in a few lines of live poetry as under: 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.

 

(Man with the Hoe) The sub­mis­sion made by Mr. Deepak Kaushal, Advo­cate on the basis of the Mines and Min­er­als (Devel­op­ment and Reg­u­la­tion) Act, 1957 being placed at Sr. No.19 of the IX Sched­ule has no bear­ing directly or indi­rectly on the lis being decided by us. The core issue requir­ing adju­di­ca­tion by us is whether sec­tion 8-A incor­po­rated by Act No.18 of 1981 is ultra vires the con­sti­tu­tion being viola­tive of the rights enshrined in Part-II of the Con­sti­tu­tion of India, more par­tic­u­larly, in view of the fact that amend­ment has been car­ried out by way of Act No. 18 of 1981 in an agrar­ian piece of leg­is­la­tion. The lease has been granted to respon­dent No.3 from the land which has become avail­able to the State under sec­tion 3 of the Prin­ci­pal Act for mind­ing pur­poses which accord­ing to us could not be leased out to him being in direct con­flict with the Prin­ci­pal Act as well as the mean­ing which we have assigned to the word ‘development’.

The upshot of the above dis­cus­sion is that: 1. The peti­tion­ers have the nec­es­sary locus standi to file and main­tain the present peti­tion on their behalf and on behalf of the co-villagers, seek­ing return of their land after the inser­tion of clause (d) in sub-section (2) of Sec­tion 3 of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Act, 1974; 2. The peti­tion has the basic ingre­di­ents of being termed as “pub­lic inter­est lit­i­ga­tion” akin to social and class action; 144 3. There is nei­ther any delay nor neg­li­gence on the part of the peti­tion­ers to approach this Court for chal­leng­ing the vires of Sec­tion 8-A of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Act, 1974; 4. Nei­ther the peti­tion­ers nor respon­dents No.4 to 329 can waive or barter away their fun­da­men­tal rights and legal rights avail­able to them as per the pro­vi­sions of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Act, 1974; 5. The effect of the amend­ment car­ried out by way of the H.P.

 

Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion (Amend­ment) Act, 2001 in the Prin­ci­pal Act is that it has to be treated as inte­gral part of the Prin­ci­pal Act from the very incep­tion of the Act i.e. 1974; 6. The Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Act, 1974 is an agrar­ian piece of leg­is­la­tion; 7. Sec­tion 8-A though uncon­sti­tu­tional being viola­tive of Arti­cles 14 and 19 of the Con­sti­tu­tion of India is not struck down by invok­ing the prin­ci­ple of read­ing down by giv­ing the word devel­op­ment restric­tive mean­ing instead of exten­sive mean­ing; 8. The peti­tion­ers and other co vil­lagers are enti­tled to get back their land; 9. The immu­nity enjoyed by the Prin­ci­pal Act can­not be extended to Sec­tion 8-A; 10. Sec­tion 14 of the Himachal Pradesh Vil­lage Com­mon Lands Vest­ing and Uti­liza­tion, Act, 1974 could not be invoked by the State for adding Sec­tion 8-A Con­se­quently, the writ peti­tion is allowed. Annex­ure P-5 dated 20^th March, 2001 is quashed and set aside. The expres­sion uti­liza­tion of the land for devel­op­men­tal activ­i­ties men­tioned in sec­tion 8-A is read down and explained to mean those devel­op­men­tal activ­i­ties which are akin to the agri­cul­tural pur­suits read with the expres­sion ‘com­mon pur­poses’ defined in the Act and not the min­ing activ­i­ties to save it from being declared uncon­sti­tu­tional. Respon­dents No.1 and 2 are directed to restore the land to the peti­tion­ers and other co-villagers mea­sur­ing 1338.03 bighas, includ­ing the land leased out to respon­dent No.3, except the land which has been allot­ted to the land­less per­sons, eli­gi­ble per­sons and for any com­mon pur­poses as defined strictly in the Himachal Pradesh Vil­lage Com­mon 145 Lands Vest­ing and Uti­liza­tion Act, 1974, within a period of eight weeks from today.

 The respon­dent No.2 is directed to carry out the muta­tion in favour of the peti­tion­ers and co-villagers within fur­ther period of four weeks. The min­ing oper­a­tions being car­ried out by respon­dent No.3 will cease forth­with. Respon­dent No.2 is held respon­si­ble to enforce and imple­ment these direc­tions issued qua respon­dent No.3. The peti­tion­ers are also held enti­tled to costs, which are quan­ti­fied at Rs.25,000/-.

 Finis: We appre­ci­ate the assis­tance ren­dered by the learned Advo­cates appear­ing on behalf of the parties.

 (V.K. Gupta), C.J.

 Novem­ber 22, 2007 (sck) (Rajiv Sharma), J.

Khatri Ram Vs State of HP