M.P. Thakkar, J.
1. Inconceivable as it might appear. Article 226 of the Constitution of India embedded therein to enable the Courts to remove injustice is often invoked (as in the present matter) in order to 'create' rather than 'remove' road blocks in the way of the Establishment even when it is sincerely striving to redress the centuries old injustice to backward class citizens in a small measure. Perhaps it is better to let the facts voice their own sentiments.
2. Five land owners from village Radhu in Matar taluka in Kaira district viz. Patel Parshottamdas Chaturbhai and four others, have challenged a grant of lands in respect of two small parcels admeasuring 6 acres-27 gunthas and 3 acres 10 gunthas comprised in survey number 250 of the same village in favour of respondent No. 1 Harijan Shakarbhai Lakhabhai, the promoter of a backward class co-operative society viz. Sahij Pachhat Varga Samudayik Sahakari Mandali as per order at annexure 'B' dated May 31, 1973 by way of this petition invoking the high prerogative jurisdiction of this Court under Article 226 of the Constitution of India.
3. The petitioners have challenged the impugned order of grant as per annexure 'E' on the ground that such grant cannot be made by way of an executive fiat without following the procedure prescribed by the Land Revenue Code and on the ground that it is violative of Article 14 of the Constitution of India.
4. The impugned order shows that the lands in question which are entered in the revenue records as Sarkari Padtar that is to say, under the head of 'Government waste lands' have been granted to respondent No. 1 in pursuance of the policy decision embodied in Government Resolution No. L.N.D. 3960-A-l, dated March 1, 1960 passed by the then State of Bombay. The preamble to the said resolution reads as under:
Disposal of Government waste lands is governed by the orders issued in Government Resolution, Revenue Department No. L.N.D. 3953 V.B. dated 20th-August 1954 as amended from time to time. In practice, however, permanent disposal has not taken place on any large scale on account of the following four bans:
1. Ban on account of Land Utilisation Survey Scheme.
2. Ban on account of schemes for rehabilitation of persons affected by certain irrigation and power projects.
3. Ban on account of Forest Settlement.
4. Ban on account of afforestation schemes including the scheme for checking the spread of Rann of Kutch.
Government has now decided that except in respect of ban at serial No. 2, all other bans should be removed and permanent disposal of Government waste lands including those leased out from time to time should be undertaken according to the orders contained in this resolution and the Memorandum of instructions accompanying the Government Resolution.
Proceeding further, an order of priority is prescribed by para 3 (a). Inter alia, it is provided therein that grant will be made in favour of-
(iii) Co-operative joint farming society of Backward class cultivators;
(iv) Co-operative farming society of Backward class cultivators;
(v) Co-operative joint farming society of landless persons;
(vi) Members of Backward classes who hold no land or land less than an economic holding.
It will thus be seen that a grant in favour of a co-operative joint farming society of backward class cultivators and also in favour of members of backward classes who hold no land or land less than an economic holding can be made in pursuance of the policy decision of the State Government embodied in the aforesaid Government resolution. Under the circumstances, it is futile to contend that in giving effect to the policy decision contained in the aforesaid Government Resolution, the petitioners are being discriminated against. The petitioners are holders of neighbouring lands in the same village who want the lands to be allotted to them. But then, they do not belong to the backward classes like respondent No. 1 in whose favour the grant has been made. The resolution dated March 1, 1960 pursuant to which the grant has been made does not provide for grant in favour of persons like the petitioners. The petitioners are not similarly situated as respondent No. 1. It is, therefore, difficult to comprehend how it can be said that they are discriminated against by virtue of the impugned order at Annexure 'E'. There is no substance whatsoever in the challenge to the impugned order of grant on the ground of its being violative of Article 14 of the Constitution of India. Far from it. Very far from it. The Government Resolution in question is calculated and designed to induce equality rather than to introduce inequality. To treat the privileged and the affluent on the one hand and the suppressed or the oppressed on the other on par is to promote and perpetuate inequality. It is easier to attain 'Moksha' or 'Nirvana' than to attain equality by treating them on par. There is nothing more unjust or more obnoxious than to treat unequals as equals. Article 14 is ambitious. And its ambition is to transform the unjust society into a just society by devising a mechanism for a peaceful transformation by employing a constitutional weapon. To interpret Article 14 in such a fashion that it prohibits according of an advantage or a handicap to the under-privileged and the oppressed is to distort the design of the Constitution. So interpreted this Article would lose its voice and would become an engine of oppression instead of an instrument of transformation for its inevitable result would be to freeze and perpetuate the unjust social order for centuries to come. 'Equity' would then cease to be a promise and become a platitude for it would then be a race between an able bodied person and a lame one with the able bodied person having a much earlier start. Article 14 must, therefore, be so interpreted that it commands rather than countermands according of preferential treatment to the suppressed and the oppressed. The Government Resolution does no mere than give tongue to the Constitutional mandate. The challenge to the action taken thereunder from the platform of Article 14 must, therefore, forthwith fail. There is also no substance in the challenge that the grant must be made in accordance with the provisions contained in the Land Revenue Code only and that the grant made as per the? order at Annexure 'B' would amount to making a grant by an executive fiat. The grant in favour of respondent No. 1 has been made in pursuance of the Government Resolution which embodies a policy decision of the State Government. The Government resolution in question has not been and is incapable of being challenged as ultra vires. Under the circumstances, it is unfair to contend that the State Government is distributing lands as per an executive fiat regardless of any policy considerations. The grant is made in pursuance of the well considered Government resolution which ostensibly is intended to redress the centuries old injustice to the backward class communities in such small measure as is feasible. There is, therefore, no substance in the contention that the grant is being made by way of an executive fiat. There is also no substance in the contention that the grant ought to have been made under Section 62 of the Bombay Land Revenue Code, 1879 only. The said provision may be quoted in order to understand the argument:
62. It shall be lawful for the Collector, subject to sub 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 Govt, right to all trees not specially reserved under the provisions of Section 40 and shall be recoverable as an arrear of land revenue.
5. Now, there is nothing in Section 62 of the Code or any other provisions of the Code which requires that the grant of Govt, waste land can be made only as provided by Section 62. Section 62 is only one of the modes in which a grant can be made. It does not exhaust the powers of Government to make grant otherwise than under Section 62. Besides, Section 62 merely provides that the Collector may require payment of price for unalienated land or to sell the same by auction and to annex such conditions to the grant as he may deem fit. It is, therefore, not obligatory that the land should be sold by auction. It can be granted provided it does not infringe any provision of law and does not violate any statutory provisions. Therefore even if it were to be assumed for the sake of argument that Section 62 is the only provision under which a grant can be made, the grant in favour of respondent no. 1 cannot be invalidated merely because instead of selling it by auction, it has been granted to respondent No. 1 in pursuance of the policy decision contained in the Government Resolution dated March 1,1960.
6. It was also contended on behalf of the petitioners that in fact the lands in question were of their ownership. However, the respondents have disputed this position and have contended that the petitioners had no title to the said lands. This being a disputed question of fact, it can-not be resolved in the course of the present petition under Article 226 of the Constitution of India. It is, therefore, not possible to examine the validity of this contention and the impugned order cannot be assailed on this ground.
7. It was also sought to be contended that 3 acres 10 gunthas out of the said lands could not have been granted in any case because it was not a Government waste land. The impugned order at Annexure 'E' in terms says that both the parcels of lands are entered under the head of 'Government Waste Lands.' Under the circumstances, the challenge even on this ground cannot succeed.
There is no substance in the petition. It fails and is rejected. Rule is discharged. There will be no order regarding costs.