J.B. Mehta, J.
1. The petitioners who are occupying Bet or Bhatha lands in the rivers in question challenge in these petitions the Government Resolution, dated December 28,1966, by which in cancellation of the existing order regarding the disposal of Bet and Bhatha lands by public auction, the Government has directed the said procedure to be discontinued with effect from January 1, 1967, and has directed the authorities to dispose of the lands as per the detailed instructions given therein.
2. The petitioners claim in these petitions that they were cultivating these lands as tenants except the petitioner in Sp. C.A. No. 1079 of 1967 who claims to be a permanent tenant, the case of the petitioners was that at the relevant time they had been given Eksali;'. e. one year leases on the expiry of which their right of renewal was completely taken away by the aforesaid circular. The circular had completely fettered the discretion of the competent authorities under the Bombay Land Revenue Code, 1879, hereinafter referred to as 'the Code' and had created an absolute rule excluding the petitioners so much so that they could not even now give a bid at any public auction for these lands. Even though in Sp. C.A. No. 1079/67 the case of the petitioner was of a lease in perpetuity the State had controverted this allegation and no such grant was produced. The case of the State is that the petitioner was in illegal possession after the Eksali lease in 1964. Therefore, even that case also stands on the same footing, in view of the said disputed questions of facts which cannot be resolved by us. The petitioners, therefore, challenged the impugned circular on two grounds: (1) that it is ultra vires the Code, especially as it creates an absolute rule, excluding the petitioners who would have been entitled under the provisions of the Land Revenue Code to get these leases by bidding at the public auction as per the relevant rules. The impugned order in this connection violates the policy of the Code which is to augment the Government revenue and which does not contain any policy of excluding any person from the disposal of these unalienated Government lands. (2) The petitioners, further challenge the impugned order on the ground that it is discriminatory and violates Article 14 and the inequality is writ large on the face of the entire order, especially as the so called reservations in favour of Harijans, Adivasis, and backward class people are so exercised that all the 100 per cent lands would get reserved for them under this policy of priority and the petitioners would be completely excluded. In the affidavits filed in reply by the State it is contended that the petitioners have no rights in matters of disposal of Government lands after their Eksali leases have come to an end. This function of the Collector being an administrative function and as the Government's own lands were disposed of by the Collector, such orders can be issued by the Government under the Code particularly under Section 37 by laying down the principles for proper selection of the persons who could be granted leases of the Bet or Bhatha lands. The State had emphatically controverted the allegations of the petitioners that the Bet or Bhatha lands were river bed lands but as regards their being unalienated and unoccupied lands, the allegation has not been controverted. It is further pointed out in their affidavit-in-reply that as per the instructions in the said resolution priority is given to the Co-operative society, Harijans, Adivasis and backward class people. The Stale, however, relied for this preferential treatment on the special provisions of the Constitution and on the directive principles mentioned in the Constitution which justify these classifications on a rational basis. It is also contended that this resolution really achieved social and economic justice. As the earlier affidavit was not exhaustive when the matter came up for hearing, the matter was adjourned for some time permitting the State to file additional affidavit. In the additional affidavit the history of the orders regarding the Bet and Bhatha lands has been set out. In 1947-48 they were leased out by public auction for a period not exceeding 10 years. Under the order of 1951 they were disposed of by selection without public auction as per the following order of priority:
(1) Bona fide agriculturists who have cultivated the land personally for five years or more,
(2) Adjacent land holders who, in the Collector's opinion, had insufficient land for maintenance of their families;
(3) Co-operative farming societies;
(4) Priority holders under the Waste land Rules.
These orders were cancelled on September 19, 1952, and it was decided that on the expiry of the existing leases of lands, not held by co-operative farming societies, the disposal of Bet, Bhatha lands should be made on five years' lease by public auction. Thereafter the affidavit is silent as to how the Eksali system again came into force. It is further stated that it was felt that by giving lands on auction only rich people managed to take the lands in the auction and the landless people and backward people could not get the same. The Government land disposal policy is not based on any profit motive but on principles of social justice, which necessitate a proper distribution of land amongst the needy and economically backward persons. It was for this purpose that the Government had acquired lands from the Jagirdars and Girasdars and it was also with that view that the Land Ceiling Act and Waste Land Rules were framed. If Government was moved by any profit motive, it could have framed rules for disposal of all lands by public auction. It certainly would have brought to Government a very large revenue by doing so, but the Government would have violated the principles of social justice to which it has committed itself under the Constitution. In a meeting of the Collectors the matter was, therefore, discussed and they were in favour of disposal of these lands without auction and there was a growing feeling amongst M.L. As. and others that the disposal of Bet and Bhatha lands by auction would act harshly on the needy cultivators who genuinely require the lands for their maintenance. Therefore, on the basis of the policy decision taken at the Government level the impugned circular was issued by way of administrative instructions after considering various factors and the existing policy before the date of the resolution and looking to the need for helping farming co-operative societies, small holders, Harijans, Adivasis, backward class persons and landless labourers. In these circumstances the Government justified the impugned order.
3. Miss Dabu and other advocates of the petitioners raised the follow ing two grounds at the hearing:
(1) That the impugned order is ultra vires the Code as it is inconsistent with the rules and is not for the purposes of the Act and as it excludes persons from being eligible to the statutory disposal of Government lands.
(2) That the impugned order is wholly discriminatory and is hit by Article 14 as it is a class legislation for a collateral purpose and in the guise of selection or reservation it excludes all other eligible persons.
4. Mr. Nanavati, the learned Assistant Govt. Pleader, at the outset raised a preliminary objection to the maintainability of these petitions on the ground that if the Eksali (one year) leases came to an end, the peti tioners had no legal rights which could be protected and, therefore, the petitioners could not make any grievance about the alleged discrimination under Article 14. There was no question of any property right nor was there a question of protection of even lesser interest, but the real question was one of getting a grant from the Government. The petitioners had no fundamental right or even a legal right, statutory or otherwise, to become lessee from the Government or to get this contract in their favour and, therefore, these petitions were entirely incompetent and misconceived. Mr. Nanavati in this connection vehemently relied upon the decision in C.K. Achuthan v. State of Kerala : AIR1959SC490 . In that case the Government had terminated the contract for supply of milk to the Govern ment hospital which the petitioner carried out for about 11 years. The Government did not give to the petitioner the contract. Even though the petitioner and the co-operative milk society submitted tenders for supply of milk, the authorities cancelled the petitioner's contract for supply of milk and gave it to the co-operative society. In these circumstances the Supreme Court held that none of Articles 14, 16, 19(1)(g) and 31 can be made applicable to the facts of the case. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Article 14, because the choice of the person to fulfil a particular contract must be left to the Government. Similarly, a contract which is held' from Government stands on no different footing from a contract held from a private party. The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even for specific performance, but he cannot complain that there has been a deprivation of the right to practise any profession or to carry on any occupation, trade or business, such as is contemplated by Article 19(1)(g) Nor has it been shown how Article 31 of the Constitution may be invoked to prevent cancellation of a contract in exercise of powers conferred by one of the terms of the contract itself. Their Lordships further held that a contract for the supply of goods is not a contract of employment in the sense in which that word has been used in the Article 16. The petitioner was not to be employed as a servant to fetch milk on behalf of the institution, but was a contractor for supplying the articles on payment of price, and such a contractor was not an employee. The matter was, therefore, one held to be fit for a claim of damages for breach of contract for which a proper remedy was a civil suit and the petition was held to be wholly misconceived. That decision can have no application to the facts of the present case for the simple reason that the power to dispose of the Government land which is vested in the Collector under Sections 37 and 62 of the Code is a statutory power, and if the said power is alleged to have been exercised ultra vires the Code or violating the guarantee of equality enshrined under Article 14, the writ petition would be clearly competent. This matter is really covered by another decision of the Supreme Court in State of Assam v. Tulsi Singh 1964 (1) S.C.J. 42. In that case the question related to a ferry lease which was to be granted under the relevant Section 8, which provided that the tolls of any public ferry may from time to time be let out by public auction for a term not exceeding five years with the approval of the Commissioner. Under Rule 19 the concerned officer accepting bid was to consider three factors among others: (1) whether the bidder is a native or having domicile or an outsider, (2) whether the bidder has experience of the ferry business, (3) whether he has landed property in his own name within the district or State, can speak the regional language, is financially sound and of good conduct. However, the authority took into consideration the fact that the name of the highest bidder was in 'the special list' and on that basis his bid had been rejected on the ground that it was the policy of the Government not to grant taxi permit, stage carriage permit, fisheries, ferries etc. to persons who are listed to be suspected or confirmed opium smugglers and which was referred to as the 'special list' in the order of the authority. The Supreme Court in terms pointed out at page 53 that the power of the authority to settle public ferries is derived from Section 8 of the Act and the Rules framed thereunder, and it has, therefore, to be exercised in accordance therewith. It was pointed out that the special list was a document felling within Section 35 of the Evidence Act and there was nothing on the record to show on what basis the said confidential document was prepared. In these circumstances the special list was ruled out as not being material on which an opinion could be formed, and once that was left out there was nothing else which would justify rejection of the offer of the highest bidder under Rule 19. This decision furnishes a complete answer so far as the present case is concerned. If the petitioners are able to establish that the impugned circular is ultra vires the Code or is hit by Article 14, it would not be open to the Collector while disposing of the lands in question, whether under Section 37 or 62 of the Code, to consider this extraneous and irrelevant material, and as the existence of this circular would completely deprive the petitioners of their claim to get renewal of the leases in their favour at the hands of the competent authorities, the petitioners could file this petition to challenge these ultra vires orders. Therefore, the preliminary objection of Mr. Nanavati must be rejected.
5. Before considering the two points raised by the petitioner it would be relevant at this stage to consider all the relevant provisions of the Code and the rules along with the impugned circular. As the preamble of the Code states this is a Code to consolidate and amend the law relating to revenue officers for the assessment and recovery of land revenue and for other matters connected with the land revenue administration. Section 37(1) provides that all public roads the bed of rivers, and all lands wherever situated, which are not the property of individuals, or of aggregate of persons legally capable of holding property, are hereby declared to be... the property of the Government and it shall be lawful for the Collector, subject to the orders of the Commissioner to dispose of them in such manner as he may deem fit or as may be authorized by general rules sanctioned by the Government concerned and subject 10 all other rights of the public or of individuals legally subsisting. Thus, Section 37 provides that all lands wherever situated and which are not the property of individuals are declared to be property of the Government and it shall be lawful for the Collector to dispose of these lands. The power of disposal is vested in the Collector and is subject to the orders of the State Government or as may be authorised by the general rules sanctioned by the Government concerned. Subject to these provisions he can dispose of them in such manner as he may deem fit. Section 60 provides that any person desirous of taking up unoccupied land which has not been alienated must, previously to entering upon occupation, obtain permission in writing of the Mamlatdar or Mahalkari. Section 62 which is material for our purpose runs as under:
It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under Section 60, The price if any paid for such land shall include the price of the Government right to all trees not specially reserved under the provisions of Section 40 and shall be recoverable as an arrear of land revenue.
Sections 63 and 64 even though they are mentioned in some notices are not relevant as they confer right on the occupants, who are holders in actual possession of an alluvial land other than tenant, within the meaning of Section 2(16) of the Code. Section 214 entitles the State Government to make rules not inconsistent with the Act to carry out the purposes and objects thereof and for the guidance of all persons in matters connected with the enforcement of this Act or in cases not expressly provided for therein. Section 214(2) provides that in particular, and without prejudice to the generality of the foregoing power, such rules may be made under Clause (e) regulating the disposal of land and other property vesting in the Government for the purposes of the State and under Clause (g) prescribing the purposes, periods and terms and conditions for which the unoccupied unalienated land may be granted. Under the said rule making power, the Land Revenue Rules, 1921, hereinafter referred to as 'the rules' have been enacted. Rule 30(c) provides that in all grants and disposals of land the right of occupation and use only, subject to the provisions of the Code shall be granted and not the proprietary right of Government in the soil itself. Rule 31 provides that land may not be granted free of land revenue without the sanction of the State Government except as provided in the subsequent rules, for certain purposes like schools, colleges, hospitals, etc. The material Rule 37(1) provides that any unoccupied survey number not assigned for any special purpose may, at the Collector's discretion, be granted for agricultural purposes to such person as the Collector deems fit either upon payment of a price fixed by the Collector, or without charge, or maybe put 'up to public auction and sold subject to his confirmation to the highest bidder. Sub-rule (2) provides that in the case of such grants an agreement in Form F shall ordinarily be taken from the person intending to become the occupant. Rule 41 relates to land situated in bed of the river and not included in a survey number which shall ordinarily be leased by auction to the highest bidder for the term of one year or such further period as the Collector thinks fit. This relevant scheme constituted the Collector as competent authority for disposal of these lands vesting in the State Government, either under Section 37 or under Section 62. As the State Government had denied the fact that these lands were river bed lands, Section 37 would be applicable for disposal of these lands only because of the general expression 'all lands wherever situated'. There is, however, no controversy that these are unalienated lands whose disposal would be clearly governed by specific provision of Section 62. The Government's case, therefore, is that the lands can be disposed of both under Section 37 and 62, while the petitioner contend that these lands can be disposed of only under Section 62, which is a specific section and which must prevail over the general section and to that extent the subject matter of the specific provision should be treated as excluded from the general section. This contention of the petitioner has been raised because in Section 37 the power of the disposal of the Collector is made subject to the orders of the State Government, while there is no such restriction of the powers under Section 62. In this case it is not necessary to resolve this question because even proceeding on the footing that Section 37 applies to these cases this matter can be disposed of. It should be kept in mind at this stage that the scheme of the relevant Rules 37 and 41, if applicable, is that these lands can be granted for agricultural purposes at the Collector's discretion to such persons as the Collector deems fit, either upon the payment of price fixed by the Collector or without charge or may be put up at public auction or sold subject to confirmation to the highest bidder. Even Rule 41 contemplates disposal by public auction. These rules are in complete consonance with the basic scheme of the Code to augment land revenue by disposing of unoccupied land by public auction. That is why the Eksali tenure came into existence so that the Collector could put up the lands to annual auction which would fetch much larger revenue as it is admitted as aforesaid in the affidavit of the State Government. This is the relevant scheme of these two Sections 37 and 62 and the relevant rules which would clearly enable the petitioners to bid at the public auction if these lands were disposed of as contemplated by the rules, and there is nothing either in the Code or in the rules which would exclude these petitioners from bidding at the public auction. This is the ordinary method of disposal contemplated by the relevant statutory rules which is completely in consonance with the policy of this legislation for augmenting the revenues of the State. It is in this light that we have to consider the effect of the impugned circular, dated December 28, 1966, of which the material terms are as under:
In cancellation of all existing orders in regard to disposal of Bet and Bhatha lands by auction, Government is pleased to direct that the existing procedure of disposal of Bet, Bhatha lands by auction should be discontinued with effect from 1st January 1967, and such lands should be disposed according to the instructions detailed below:
(1) The existing leases held by co-operative societies should be renewed on their expiry only if the members of the co-operative society individually hold land less than 16 acres excluding the Bet, Bhatha Lands, and the total holding of the number, including the land to be granted is not more than the number of members x 16 acres.
(2) If condition (1) is fulfilled, the lease in favour of the co-operative society, should be renewed for a further period of 10 years on payment of a revised rent: which should be fixed on the basis of the factors enumerated hereinafter in instruction No. 6 given below:
(3) As regards Bet Bhatha lands which have been leased in favour of individuals such leases should not be renewed but on expiry of such leases the lands should be disposed of to priority holders as enumerated in instruction No. 5 on payment of rent to be determined on the basis of factors enumerated in instruction No. 6. There will be no objection to renew the lease in favour of such individual if he is otherwise eligible as per principle fixed in this G.R.
(4) As regards new Bet Bhatha lands which are to be disposed of for the first time, they also should be granted to priority holders as mentioned in instruction No. S on the basis of rent charged for similar lands which have been disposed of as per instructions contained in this G.R. or which have been disposed of as in the past by auction.
The material Clause 5 about the priority holders is as under:
(5) The priority for disposal of Bet Bhatha lands should be as under:
(i) Bona fide agriculturists of the village who are holding land less-than five acres preference in this case will be given to Harijans, Adivasis and Backward Class people,
(ii) Holders of land adjoining Bet Bhatha lands holding land less than 16 acres and who in the Collector's opinion have a genuine need of additional lands for maintenance of their families. Inter se preference in this case also will be as per (i) above.
(iii) Co-operative farming societies of Harijans, Adivasis and Backward class persons.
(iv) Co-operative farming society consisting of landless labourers or small holders.
(v) Any of the priority holder under the Waste Land Rules. The individuals as well as co-operatives of the village in which the Bet Bhatha lands are situated will have the first priority while the individuals and co-operatives of neighbouring villages within a radious of five miles shall be given priority in the order of nearness from the village where the Bet Bhatha lands are situated. If there are claims of two equal priority holders for the same land, the disposal will be by casting lots.
The Clause 6 provides for fixation of rent. The principal basis for fixation of rent will be the average of the past three years auction realisation where disposals by auction have taken place in regard to the particular land. Where, however, auctions have not been held in the past, the principal basis for fixation of rent will be the rent determined for similar adjacent lands on the basis of auction realizations. Where no such lands which have been auctioned exist in the neighbouring area, the rent will be determined by the Collector on the basis of one sixth of the gross produce converted in terms of cash.
Under Clause 7 the Collector will have the discretion of fixing a rent higher than that calculated on the basis of three year's average realization of auctions, if in his opinion, the produce from the Bet Bhatha lands or the trend of agricultural prices justifies such an increase. In such cases however, he will have to record a detailed justification for such an increase in the order.
Under Sub-clause (8) these lands were to be granted for not more than 10 years and the renewal shall be on the same principles subject to the revision of rent on the basis of those instructions. Thereafter Clauses (9) to (11) provide for certain conditions, of which material condition (10) provides that no individual or a cooperative society will be granted Bet Bhatha land at more than one place. Condition No. 12 provides that the grant of Bet, Bhatha lands shall be made on the condition that the lessee personally cultivates the lands and does not leave the land uncultivated any year except for reasons beyond his control.
6. Therefore, the effect of these clauses is not to make a special provision for small land holders or landless people who need the land for their maintenance and who could not bid at the public auction as against rich people. The whole classification is based on two essential principles: that the individual gets excluded both by co-operative society and by an individual member of Harijans, Adivasis and backward class people. There is no list produced by the State, even though the State has been given proper opportunity to file an additional affidavits of persons who are regarded as backward class people and for whose benefit this reservation is sought to be made. There is, therefore, no material whatever to indicate the category of 'backward class people' as understood in this relevant Government Resolution. The fact remains that even the landless individual or small holder holding less than five acres would be thrown out of his existing tenancy as his lease would not be renewed, if he does not happen to be a priority holder as mentioned in Clause 5, while the cooperative society of any kind would have lease renewed if the condition No. 1 is fulfilled by members individually holding less than 16 acres excluding Bet, Bhatha lands and the total holding including the land to be granted is not exceeding the number of member multiplied by 16 acres. Besides, the reservation is so excessive as in cases of Harijans, Adivasis and Backard class people that they would completely exclude bona fide agriculturists having no land or having lands less than 5 acres who would have fallen otherwise under the first category of priority holders. Similarly, in the second category when the ground for consideration is the holding of land adjoining Bet, Bhatha land, even if the need for additional land for maintenance of family is found to be genuine, the individual shall be -excluded and the Harijans, Adivasis etc. would be preferred. Even if these two preferential categories of priority holders are not there to exclude an individual, the co-operative farming society of such persons would exclude an individual or even the co-operative farming society of landless holders would exclude him and in those cases there are no limits specified of holdings of those co-operative members. Even the exclusion would happen not only by the co-operatives or individuals of priority class in the village but also by the same principle operating even in the neighbouring villages within the radius of five miles. It is in the light of this exclusion scheme, which would leave no discretion to the competent authority and would absolutely bar any renewal in favour of persons other than the co-operative society or priority holders mentioned in this section, that we will have to consider the rival contentions of the parties. At this stage it would be relevant to note that the method of fixation of rent under Clause (6) is that of the average of the past three years' auction realization or if there was no such auction, of rent actually realised for similar adjacent lands. Even in the absence of that, such rent is to be determined by the Collector on the basis of one sixth of the gross produce converted in terms of cash, subject to revision as mentioned in Clause (7). This rent remains constant unless revised under Clause (8) for the renewal period of the lease of 10 years. Therefore, in all these cases of Bet and Bhatha lands the effect of the circular would be that there would not be a single instance of public auction from year to year which would augment the revenue but for a period of 10 years the lands would be given on the basis of these prices mentioned in Clause (6).
7. The first question which arises for consideration is the nature of the function which the Collector has to perform under Section 37(1) and Section 62 for disposal of these lands. Section 37(1) in terms provides that it shall be lawful for the Collector, subject to the orders of the Commissioners, to dispose of them in such manner as may deem fit. Section 62 provides that it shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under Section 60. Therefore in both these cases, this power of disposal is left to this competent authority i.e., the Collector, and he has to exercise the power in such manner as he may deem fit. Under Section 37 it is subject to the orders of the State Government and the general rules sanctioned by the Government, while under Section 62 it is subject to such rules as may from time to time be made by the State Government. After the decision of the Supreme Court in Govindrao v. State of M.P. : 1SCR678 , the connotation of the expression 'may pass such orders as it deems fit' is well settled to mean no more than that Government must make its orders to fit the occasion, the kind of order to be made being, determined by the necessity of the occasion-Their Lordships relied on the oft quoted passage in Maxwell on the Interpretation of Statutes:
Statutes which authorise persons to do acts for the benefit of others, or as if is sometimes said, for the public good or the advancement of justice, have given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may' or 'shall', 'if they think fit', or 'shall have power' or that, 'it shall be lawful' for them to do such acts, a statute appears to use the language of mere permission, but is has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least-a compulsory force, and so would seem to be modified by judicial exposition'
In that context even when the authority could make such orders as it deemed fit as regards the grant of pension, it was held that except in cases where there are good grounds for not granting the pension, the authorities were bound, to make a grant to those who fulfilled the required condition and the word 'may' though apparently discretionary was read as 'must'. Another authority, which has been relied upon by Mr. Nanavati in Shankerlal v. Shankerlal : 1SCR717 , also brings out the same distinction. In that case the a question arose as regards the order sanctioning sale rule in winding up proceedings and it was held by Their Lordships at page 511 that the said order according sanction to a sale undoubtedly involved a discretion and cannot be termed merely a ministerial order, for before confirming the sale the Court had to be satisfied, particularly where the confirmation was opposed, that the sale had been held in accordance with the conditions subject to which alone the liquidator had been permitted to effect it, and that even otherwise, the sale had been fair and had not resulted in any loss to the parties who would ultimately have to share the realisation. Therefore, on a parity of reasoning, when the Collector orders disposal of those Government lands by public auction by confirming the sale or the lease, even though he has to exercise such discretion as he deems fit, the order is not merely a ministerial order, but one based on subjective satisfaction by applying his mind to the various conditions subject to which he could confirm the sale or make a disposal as required by the relevant rules or by the relevant Government orders, if they are binding. The order made by the Collector would decide important rights as the consequence of the order would be a refusal to confer right of tenancy or of occupancy by refusing to make a disposal in favour of one of the contesting parties, and even the questions as envisaged by Their Lordships might arise when the public auction was held. Against these orders the remedies of statutory appeal under Section 204 and revision under Section 211 are also available. Therefore, in this context these orders passed by the Collector could not be ministerial orders in discharge of mere executive functions, but they are orders where the discretion which the Collector has to exercise is to be exercised judicially. There is, therefore, no absolute discretion of the Collector in these matters as sought to be contended for at some stage by the learned Asstt. Govt. Pleader in view of the aforesaid settled legal position.
8. The next material question which must be disposed of is as to the nature of the order which is contemplated to be passed by the Stave Government under Section 37(1) so as to fetter the power of disposal vested in the statutory authority viz. the Collector under Section 37(1) or even under Section 62, if that provision were said to be applicable. The question of cannot be one of any judicial order being passed by the State because appeals and revisions are separately provided under Sections 202 and 211. The order can, therefore, be treated as, one by way of administrative instructions by the State Government or as statutory order or resolution, regulating the power of disposal vested in the statutory authority viz. the Collector. If the matter is considered as one of administrative directions for the guidance of the officer, these directions could never be supported, because they in terms create an absolute rule that no lease shall be renewed in favour of individuals unless they fall in the category of priority holders under Clause (v). That ground also would have been sufficient to dispose of this petition. That is why the learned Asstt. Govt. Pleader argued that these administrative instructions which were issued in the G.R. were statutory directions issued under Section 37(1) and, therefore, they were binding directions as far as the Collector was concerned. If these directions were binding directions as far as the Collector was concerned, the aggrieved persons could surely challenge them, because by complying with these directions the Collector would be taking into account an extraneous factor and would be transgressing the bounds of law laid down by Sections 37 and 62 in the matter of disposal of these lands. Such binding directions which have, therefore, such authority or force so as to fetter the judicial discretion of the Collector must only be by way of law in force and they could not be by way of any administrative instructions. In B. Rajgopala v. S.T.A. Tribunal A.I.R. 1964 S.C. 1576 at page 1679, Their Lordships considered the directions issued under Section 43A of the Motor Vehicles Act, 1935, and pointed out interpreting the section as under:
In interpreting Section 43A it would be legimate to observe that the Legislature intended to respect the basic and elementary postulate of the rule of law that in exercising their authority and in discharging their quasi-judicial functions the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is of the essence of the fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process. It is true that law can regulate exercise of judicial powers. It may indicate by specific provision on what matters the Tribunals constituted by it should adjudicate. It may by specific provision lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statutes can well be regulated by the statute and principles for guidance of the said Tribunal may also be prescribed, subject of course to the inevitable requirement that those provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders.
That is why it is now well settled that these regulations can effectively fetter the judicial discretion of the Collector, only if these orders are treated as statutory directions, and that is why Mr. Nanavati proceeds on that basis for justifying these directions of the State in so far they operate as fetter on the judicial discretion of the competent Collector.
9. That aspect immediately raises two questions which the petitioners raise in this petition as to whether these statutory directions are ultra vires the Code and as to whether they are hit by Article 14 by being discriminatory as alleged. If this power to issue orders is considered as power to issue a statutory order, this would be a piece of conditional legislation which can be supported only if we can detect any policy for issuance of these statutory directions. Unless some policy is disclosed by the Legislature the delegation would become excessive and uncanalised and there would be the vice of delegated legislation. That is why the power to issue statutory orders by the State Government can never be said to be an absolute power to issue any orders which the State Government deems fit as was contended for by Mr. Nanavati. When no other policy is mentioned, this conditional legislation can be supported only on the footing that these regulatory powers must be exercised only for the purposes of the Act. Therefore, these regulations must be treated as supplementing other statutory rules and they can only be validly issued in so far as they regulate the power of disposal of the Collector. Once they go beyond the scope of a regulatory measure, this statutory order would be clearly ultra vires and would be dehors the Code. Miss Dabu in this connection rightly relied upon the decision of the Privy Council in Utah Construction and Engineering Pvt. Ltd. v. Janus Pataky 1965 S.C. 629. The question which arose before their Lordships was as' regards the validity of regulation 88 under the Scaffolding and Lifts Regulations made by the Governor under the power to issue regulation under Section 22(1) for carrying out or giving effect to the act or any provision relating to the manner of carrying out the excavation work. At page 646 their Lordships of the Privy Council approved the ratio of the judgment of the High Court of Australia in Shanthan v. Scott (1956) 96 C.L.R. 215, 950, relating to the construction of a provision similar to Section 22(1) of the Scaffolding and Lifts Act, to the following effect:
The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions, But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the Legislature has adopted to attain its ends.
Therefore, where the regulation sought to impose absolute duty instead of laying down the manner of carrying out the excavation work, which plainly envisaged a system of working, it was held by their Lordships, that the provision did not justify such a regulation imposing an absolute duty of protecting the drive and tunnel or an absolute duty of ensuring safety of persons employed in the drive or tunnel. Further proceeding at page 641, their Lordships held that the power conferred by the regulation related only to the means for achieving an end and not to the creation of the end itself. On that basis the said regulation 98 creating an absolute liability was held to be ultra vires.
10. On a parity of reasoning in the present case the statutory order issued by the Government, as the impugned G.R., cannot be supported as a regulatory measure. The impugned G.R. is issued under a taxation measure, but it seeks to achieve the object of a welfare scheme. It does not regulate the disposal but it completely excludes persons on the two criteria that lands must be given to the co-operative societies or to Harijans, Adivasis and backward persons. Such a power to exclude completely persons who are eligible to have this statutory disposal of lands made in their favour is wholly ultra vires the purpose of the Code. The Code in terms directs the statutory au-thority-the Collector-to make disposal exercising his judicial discretion, of-course, subject to the statutory rules or even subject to the orders of the Government which have statutory force. The whole purpose and object of the Land Revenue Code is never to exclude any citizen and such exclusion by way of an absolute rule leaving no discretion even to the statutory authority would be completely beyond the scope of a regulatory measure. This would be prescribing the end and not prescribing means to an end. The end has been laid down by the Legislature in this case and it is one of the augmenting the land revenue, and for the purpose of revenue administration under this Code if any disposal is made, the disposal would be ordinarily to augment land revenue. It may be that in exceptional cases the authority may give remission in famine years or on other grounds which are specified under the scheme of the Code or the rules. The end which is envisaged to be achieved by the Code is one of getting revenue augmented which is the obvious end of any taxation measure. The end which the impugned regulation seeks to achieve is totally a different end. Even in the affidavit of the State it is stated that they wanted to achieve even at the cost of the revenues of the State the other end in their mind viz, of introducing such welfare measures. As we have already pointed out even while introducing such a welfare measure, the policy has been not of giving land to really needy and landless, small-holders, but the principle on which this exclusion proceeds is one of the persons being a co-operative member or a member of Harijan or Adivasis or backward class as envisaged in this resolution. Therefore, for such a collateral end, the power under this Revenue Code could not be exercised and such a regulatory measure which completely seeks to exclude a citizen from the benefit of the statutory disposal would cease to be a regulatory measure at all and would be totally beyond the purposes of the Act. Miss Dabu rightly characterised it as a fraud on the statute as the power of the State under the Revenue Code or under a taxation measure is sought to be utilised for a totally collateral purpose of achieving a so-called welfare scheme. Therefore, the first contention of the petitioners must be accepted that such a scheme of exclusion is not a regulatory measure and that, in any event, it goes beyond the purpose of the Act as its dominant purpose is to achieve a collateral purpose. Mr. Nanavati vehemently argued that the present regulation provides for recovery of land revenue by fixing the price under Clauses 6 to 8 and it prescribes only a method of selection. Any measure of selection would leave the whole matter to the judicial discretion of the competent authority. The present measure does not leave any discretion to the competent authority but seeks to fetter his discretion by laying down an absolute rule that certain individuals should be excluded completely unless there is no priority holder in the field. The result of these reservations would be that all the 100 per cent lands would go to the priority holders without leaving a single piece of land for the benefit of other persons who would have been entitled to this statutory disposal under the Code. Besides, this scheme is clearly inconsistent with the statutory rules which enabled the Collector to determine suitable persons from the point of view of their ability to pay land revenue or who would be personally cultivating the land by prescribing the normal disposal by public auction. If the statute enables the Government to frame statutory rules as well as to issue statutory orders, these powers must be harmonised and on that principle of harmonious construction, these statutory orders issued by the Government could not totally destroy the statutory rules. The statutory rules provide the ordinary normal method of disposal by public auction and the statutory orders could only provide for any departure in exceptional cases. The scheme of the present statutory order is to make the exception a normal rule by providing that in all cases of Bet and Bhatha lands there shall be no auction and in all cases their disposal shall be as per the circular on the basis of the priorities mentioned therein. Therefore, looking at this matter from any point of view this statutory order is clearly ultra vires the scheme of the Code.
11. As regards the second question raised by the petitioner the inequality is writ large on the face of this statutory order. Even though an opportunity was given to the State to file proper affidavit, no list has been given of the backward classes to show that the criterion adopted by the State was the criterion laid down by their Lordships of the Supreme Court in this connection. Besides, the reservations, as we have already pointed out, are so excessive that almost all the 100 per cent lands would go to these Harijan, Adivasis and backward persons and the reservation would cease to be a reservation at all within the meaning of the exception provided in Article 15(4) of the Constitution. After the decision of the Supreme Court in State of A.P. v. P. Sagar : (1970)ILLJ10SC , the law in this connection is now well settled. At page 1562 it has been observed that the Parliament has by enacting Clause (4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to Clause (4), it must appear that the beneficiaries of the special provision 'are classes which are backward socially and educationally and they are other than the Scheduled castes and Scheduled Tribes and that the provision made is for their advancement. Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational institutions. The criterion for determining the backwardness must not be based solely on religion, race, caste, sex or place of birth, and the backwardness being social and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer. These are the principles which have been enunciated in the decisions of the Supreme Court in M.R. Balaji's case : AIR1963SC649 , and R. Chitralekha v. State of Mysore : 6SCR368 . In Balaji's case, it was in terms pointed out that a reservation which makes it possible for these backward classes to get seats even more than 50% would amount to excessive reservation, as the concept of reservation would imply reservation of less than 50%. Therefore, on this short ground, this statutory order amounts to a class legislation and must be struck down. As pointed out by their Lordships in the said decision at page 1384 when a dispute is raised before the Court that a particular law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted under Clause (4) of Article 15, the assertion by the State that the officers of the State had taken into consideration the criteria, which had been adopted by the Courts for determining who were the socially and educationally the backward classes of citizens, would not be sufficient to sustain the validity of the claim. The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others. When a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them. By merely asserting that law was made after full consideration of criteria which have a bearing thereon, and was within the exception, the jurisdiction of the Courts to determine whether by making the law a fundamental right has been infringed is not excluded. The validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law maker was satisfied that what he did was right or that he believes that he acted in a manner consistent with the constitutional guarantees of citizens. The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed. Therefore, merely by stating that the State was giving effect to the directive principles of the Constitution and was making reservation for weaker sections as contemplated by the Constitution is not a plea at all which would justify such a class legislation, when no attempt whatever has been made to show by any demonstrable evidence and argument that this was a reservation which would fall under Article 15(4). Besides, the fact that the classification is reasonable would not be able to support it, unless there is a nexus between the classification and the object sought to be achieved. As we have already pointed out, the object sought to be achieved is completely a collateral object and the criteria which are adopted for the alleged classification viz. the membership of the co-operative society and the person being Harijan, Adivasis or backward class people have no rational nexus whatever to the object of augmenting land revenue which would be the implicit object underlying the entire Code, including this statutory power of disposal of the said lands for the benefit of the public. The Code never contemplated any exclusion of persons when such statutory power was sought to be exercised by the State by any statutory order. Therefore, this statutory order clearly violates Article 14 of the Constitution and even on that ground it must be struck down.
12. In the result, this petition must be allowed. The impugned Government resolution, dated December 28, 1960, is, therefore, held to be ultra vires and is struck down. The respondents and the State revenue authorities are directed not to taken into account this circular while considering the question of renewal of leases or disposals of the Bet and Bhatha lands in question and also not to dispossess the petitioner except in due course of law without first determining the question of renewal or disposal of these lands in accordance with law. Rule accordingly made absolute in each case. The State shall pay costs of the petitioner in each case.
Mr. Nanavati made a request to issue a certificate under Article 133(1)(c) of the Constitution for filing an appeal to the Supreme Court. We consider the case as a fit case involving question of wide public importance and we, therefore, issue a certificate under Article 133(1)(c) of the Constitution in each case.