Holding

Agreements for the sale of land allotted to Scheduled Tribes are void as opposed to public policy, permission for alienation may be refused, and the appellant's possession is unlawful with no right to compensation.

Summary

The State allotted 11 acres of land to a tribal respondent. The appellant entered into a sale agreement with the tribal and applied to the Collector for permission to alienate the land under the Bombay Revenue Code. The Collector and Commissioner refused, stating that land assigned to Scheduled Tribes cannot be sold or converted to non‑agricultural use. The appellant challenged the refusal, arguing that the agreement was valid, his possession was protected by Section 53‑A of the Transfer of Property Act, and he was entitled to compensation for improvements. The Supreme Court held that such agreements are void as they contravene public policy under Section 23 of the Contract Act, that the competent authority may lawfully refuse permission for alienation, and that the appellant's possession is unlawful with no right to compensation. Consequently, the appeal was dismissed.

Issues considered

The legality of refusing permission for alienation of land allotted to a Scheduled Tribe under the Bombay Revenue Code.
Whether a sale agreement for such land is void as opposed to public policy under Section 23 of the Contract Act.
Whether the appellant's possession is protected by Section 53‑A of the Transfer of Property Act.
Whether the appellant is entitled to compensation for improvements made on the land.

Legislation cited

Bombay Land Revenue Code
Constitution of Indias. Article 21, s. Article 38, s. Article 39(b), s. Article 46
Indian Contract Act, 1872s. 23
Transfer of Property Act, 1882s. 53-A

Subjects

Scheduled Tribeland alienationpublic policyContract ActTransfer of Property ActArticle 46prohibition on sale of tribal landcompensation for improvements

Judgment

A MURLIDHAR DAYANDEO KESEKAR
v. .
VISHWANATH PANDU BARDE AND ANR.

FEBRUARY 22, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Bombay Land Revenue Code : Scheduled Tribe-Land held by-Agree-
ment for sale-Permission for alienation-Power and duty of competent
authority-Refusal to grant permission on the ground that assigned land can-
C not be permitted to be sold nor converted to non-agricultural use held valid
and in consonance with scheme of Part W of the Constitution.

Contract Act, 1872 : Section 23.

Land held by Tribal-Agreement for sale-Held void and opposed to
D public policy.
Transfer of Property Act, 1882 : Section 53-A-,

Land held by Tribal-Agreement with non-tribal for sale-Purchaser in
possession pi.trsuant to agreemen~ermission for sale refused by competent
E · authority-Possession held unlawful-Section 53-A held inapplicable.
Constitution of India, 1950: Articles 21, 38, 39(b) and 46.

Social Justice-Weaker Sections-Scheduled Castes and Scheduled
Tribe.s-Protection from social injustice-Duty of State.
F ·~
The respondent, a Tribal, was allotted 11 acres and 4 gunthas ofland
by the State GovemmenL The appellant entered !nto an agreement with
the respondent for purchase of the said land and sought permission of
alienation from the Collector under the Bombay Revenue Code. Both the
G Collector and Commissioner refused to grant permission on the ground -......._
that the assigned land cannot be permitted to be sold or converted to
, non-agricultural use. Aggriued, the appellant filed a Writ Petition in 'the
High Court which was dismissed summarily.

In appeal to this Court it was contended by the appellant that (l) the
H respondent being unable to cultivate the land entered into an agreement
260
M.D. KESEKAR v. V.P. BARDE 261

of sale for valuable consideration; therefore the authorities were not A
justified in refusing permission for alienation; (ii) the appellant who was
inducted into possession of the land pursuant to the agreement is entitled
to retain the same under section 53-A of the Transfer of Property Act; and
(iii) the appellant is entitled to compensation for the improvements he had
effected on the land.
B
Dismissing the appeal, this Court

HELD : 1. Article 46 of the Constitution mandates the State to
promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes C
and the Scheduled Tribes to protect them from social injustice and all
fonns of exploitation. [269-B]

2. Prior permission for alienation of the land was a conditi.on prece-
denL Before permission is given, the competent authority is enjoined, by
operation of Article 46 of the Constitution, to enquire whether such aliena- D
lion is void under law or violates provisions of the Constitution and
whether permission could be legitimately given. In that behalf, the com-
petent authority is enjoined to loo.k to the nature of the property, subject-
matter of the proposed conveyance and pre-existing rights Rowing
thereunder and whether such alienations violate provisions of the Con- E
stitution or the law. If the answer is in the positive, then without any
further enquiry the permission straightaway would be rejected. Even in
case the permission is granted, it would be decided on the anvil of the
relevant provisions of the Constitution and the law. In this case the
au~orities, though had not adverted to the aspect of the matter, broadly
refused permission on the ground that the assigned land cannot be per- F
mittedto be sold or converted to non- agricultural use. The action refusing
permission, therefore, is in consonance with the Constitutional scheme in
part IV of the Directive Principles. The agreement is, therefore, void under
-~. s. 23 of the Contract Act as opposed to public policy. (274-E-G]

3. The appellant's possession continues to be unlawful. Section 53-A G
of Transfer of Property Act is not attracted. He is not entitled to any
improvements made on the land. [275·A]

4. Economic empowerment to the poor, Dalits and Tribes is an in·
tegral Constitutional scheme of socio-economic democracy ~d a way oClife H
262 SUPREME COURT REPORTS [1995) 2 S.C.R.

A of political democracy. The State has evolved, by its legislative and executive
action, the policy to allot lands to the Dalits and tribes and other weaker
sections for their economic empowerment. Appropriate legislative enact-
ments are brought on statute books to prevent alienation of the assigned
lands or the property had under the planned schemes, and imposed
B prohibition thereunder of alienation, declaration any conveyance in con-
travention thereof as void or illegal and inoperative not to bind the State or
the assignee. In case the assignee was disqualified or not available, on
resumption of such land, the authorities are enjoined to resume the proper-
ty and assign to an heir or other eligible among the Dalits and tribes or
weaker sections in terms of the policy. The prohibition is to effectuate the
C Constitutional policy of economic empowerment under Articles 14, 21, 38,
39 and 46 read with the Preamble of the Constitution. (273-G-H, 274-A-D]

5. The core of the commitment of the Constitution to the social
revolution through rule of law lies in effectuation of the fundamental rights
D and directive principles as supplementary and complimentary to each
other. The Preamble, fundamental rights and directive priciples - the
trinify ~ are the conscience of the Constitution. Political democracy has to
be stable. Socio- economic democracy must take strong roots and should
become a way of life. The State, therefore is enjoined to provide adequate
means of livelihood to the poor, weaker sections of the society, the Dalits
E and·tribes and to distribute material resources of the community to them
for common welfare etc. (270-H, 271-A]

Davati Balasubrahmanyam v. District Collector, Nellore, (1986) 2 ALT
1; DTC v. DTC Mazdoor Congress, (1990] Suppl. 1 SCR 1,2, referred to.
F
Mahatma Gandhiji, Socialism of My Conception, page 82-83; B.K.
Roy, Socio-Political View of Vivekananda, p.52; Robson, Welfare State and
Welfare Society, p. 11; M.P. Hall,. The Social Services of Modem England,
1952 Edn. p. 303; S.G. Sturmey, Income and Economic Welfare p. 142;
Encyclopedia Britannica Vol. 23, p. 389; .Kautilya's, Arthashastra; Peter
G Singer, Practical Ethics, 1979; Universal Declaration of Human Rights, 1948;
Granville Austin, The Indian Constitution's Seamless Web, Lecture in Rajiv
Gandhi Institution for Contemporary Studies; Illiot Dodds, Liberty and
Welfare 1957 Edn. p. 17; Robert L. Simon, Troubled Waters; Glo1J91 Justice
and Ocean Resources (1984) p. 198; Dias, Jurisprndence, 5th edn. p.85;
H Justice Gajendra Gadkar, The Constitution of India, its philosophy and·
M.D.KESEKAR v. V .P.BARDE 263

postulates, 1969 Edn. p. 18; Justice K.K. Mathew, Democracy, Equality and A
Freedom p. 38-39; Rawis, Theory of Justice p. 259, referred to ..

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 952 of
1977.

From the Judgment and Order dated 24.9.76 of the Bombay High B
Court in S.C.A. No. 4618 of 1976.

V.N. Ganpule and A.M. Khanwilkar for the Appellant.

A.S. Bhasme for the Respondents.
c
The following Order of the Court was delivered :

Admittedly, the land bearing Survey No. 265 to the extent of 11 acres
4 gunthas in Sangamner Badurk Village, Ahmednagar District which
belonged to the State Government was allotted to first respondent, a tribal,
in June, 1960. The appellant had entered into an agreement with the D
tribal-allottee on June 27, 1968 initially to purchase 5 acres of lands and
later for the entire extent and sought permission for alienation from the
Collector. Both the Collector and the Commissioner had refused to grant
him the permission. The appellant approached the High Court by way of
a writ petition. The High Court rejected the writ petition summarily. Thus E
this appeal by special leave.

Shri Ganpule, learned senior counsel for the appellant, contended
that- the first respondent being a tribal was unable to cultivate the lands
and so lawfully entered into the agreement to sell the lands for valuable
consideration, subject to permission of the Collector. The District Collec- F
tor was in error in refusing permission for alienation as the Bombay
Revenue Code gives such a power. The appellant was inducted into pos-
session of the land pursuant to the agreement and he remained in posses-
_,.;--
sion and is entitled to retain the same under s.53-A of the Transfer of
Property Act. The authorities were not justified in refusing permission for G
alienation. The appellant had improved the lands and, therefore, is entitled
to compensation for the improvements he had effected.

The question involved bears wider constitutional dimension. Mahat-
ma Gandhiji, the Father of the Nation, in his· 'Socialism of My Conception',
at page 82-83 stated that : H
264 SUPREME COURT REPORTS [1995) 2 S.C.R.

A "Every human being has a right to live and, therefore, to find the
wherewithal to feed himself and, where necessary, to clothe and
house himself...... In a well ordered society the securing of one's
livelihood should be, and is found to be, the easiest thing in the
world. Indeed, the test of orderliness in a country is not the number
of millionaires it owns, but the absence of starvation among its
B masses." ....... "Working for economic equality means abolishing the
eternal conflict between capital and labour.. It means the levelling
down of the few rich in whose hands is coneentrated the bulk of
the nation's wealth on the one hand, and the levelling up of the
semi-starved, naked millions on the .other............. A violent and
C bloody.revolution is a certainty one day, unless there is a voluntary
- abdication of riches and the power that riches give and sharing
them for the common good."

Rabindranath Tagore poetically portrayed the plight of a poor farmer thus:

D "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."

As quoted by B.K Roy in his "Socio-Political Views of Vivekananda", at
E . 52, Swami Vivekananda, speaking on social and spiritual justice, has said :
"I do not believe in a God who cannot give me bread here, giving
me eternal bliss in ·heaven. .Pooh; India is to be raised, the poor
are to be fed, education is to be spread, and the evil of priestcraft
F is to be removed.......more bread, more opportunity for every
body......"

It is well to remember what Vivekanand said about poor :

"Feel, my children, feel, feel for the poor, the ignorant, the
G downtrodden, feel till the heart stops, the brain reels and you think
you will go mad ......"

The lament of a Scheduled Caste parent is pithily brought home to
his son of their plight thus :- ·/

H. "Hush, my child; don't cry, my treasure,
MD.KEsEKARv. V.P.BARDE 265

Weeping is in vain, A
•.J...., For the enemy will never
Understand your pain.
For the ocean has its limits
Prisons have their walls around,
But our suffering and torment ·
Have no limit and no bound."
B

Pope Pious has, therefore, said that property arrangements ought to
be "an element of the social order, a necessary presupposition for.men's
initiatives, a stimulus to work for the securing of both the temporal and the
transcendent ends of life, for securing, therefore, the dignity and liberty of c
mad". The right to property is a basic civil right which .has long been
recognised.

The India National Congress declared in 1931 in its resolution that
"in order to end the exploitation of the masses, political freedom must
include real economic freedom of the starving millions' and that the
D
organisation of economic life must conform to the priciples of justice". The
founding father of the Constitution, therefore, while making the Constitu-
ti.on on behalf of the people, declared through "we the people of India" in
the Preamble, which is part of the Constitution, to secure to every citi7.en
justice, social, economic and political, equality of status and of opportunity E
with stated liberties to promote among them fraternity and dignity of the
individual in a united and integrated Bharat. Chapter Ill of Fundamental
Rights and Chapter IV of the Directive Principles have been evolved to
/
accord socio- ec0nomic justice wliile securing political justice and laid the
foundation in these Chapters to achieve egalitarian social order in
~

Sovereign Democratic Republic which later was amended by Constitution
F
42nd (Amendment) Act as Sovereign Socialist Secular Democratic
Republic.
_,~

Robson in his 'Welfare State and Welfare Society' has stated at p.11:
G
~
"The ideas underlying the welfare state are derived from many
different sources. From the French Revolution came notions of
liberty, equality and fraternity. From the utilitarian philosophy of
Bentham and his disciples came the idea of the greatest number.
From Bismarck and Beveridge came the concep~ of social in- H
,
266 SUPREME COURT REPORTS [1995) 2 S.C.R.

A surance and social security. From the Fabian Socialists came the
principles of the public ownership of basic industries and ess~~tial
services. From Tawney came a re.newed emphasis on equality and
rejection of avarice. as the· ·mainspring of social activity. From the
'Yeqbs. oanre '{ir~~sals for abolishing the causes of poverty and
B cleaning up the base of society."

Robson stated at p. 192 :

''The basic aims of the welfare state are the attainment of a substantial
degree of social, economic and political equalities and to achieve self-ex-
C pression in his work as a citizen, leisure and social justice". According to
George Watson, quoted by Robson, welfare state implies a redistribution
of incomes for the achievement of basic standard of living for all. M.P. Hall
in his ''The Social Services of Modern England", has stated at p. 303 of 1952
Edn. that "The distinguishing characteristic of the welfare state is that the
D assumption by the community, acting through the State, of the respon-
sibility for providing· the means whereby all its members can reach mini-
mum standard of health, economic security and civilised living and can
share according to their capacity in its social and cultural heritage". S.G.
Sturmey in his 'Income and Economic Welfare' has stated at p. 142 that
"The welfare State should take positive measures to assist the community
E at large to alive to a collective r.esponsil .,,ty towards its weaker members .
_and should take positive measures to ,:•.ssist them.

In Encyclopedia Britannica, Vol. 23, p. 389, social welfare has been
defined as "System of laws and institutions through which a government
F attempts to protect and promote the economic and social welfare of its
citizens are usually based on various forms of social insurance against
unemployment, accident, illness and old age." The welfare state is not alien
to Indian soil. In Kautilya's, Arthashastra, it was specifically provided that
"In the happiness of the people lies the happiness of the king. What is good
to the people is good (for the king). What is pleasant to the king is not
G good for him. What is good for the people alone is good for him." In Vedas
and Epics, the duties of the king have diversely been mentioned that the
King acts more than paternal and paternalistic in attitude. King Ashoka,
/ Maurya, Akbar Srikrishna Devaraya and Kakatiyas etc. worked for the
welfare of the people. Robert McNamara, President of the World Bank,
H quoted by Pater Singer in his "Practical Ethics, 1979, said that "society has
M.D. KESEKAR v. V.P. BARDE '267

the moral obligation to raise above the absolute proverty level those who A
~ are in absolute poverty."

Universal Declaration of Humari Rights, 1948, assures in Article 1
that "All human beings are born free and equal in dignity and rights."
Article 3 assures that "Everyone has the right to life, liberty and security
of person". Article 17 decl~es that "Everyone has the right to own property B
alone as well as in association with others." Article 22 envisages that
"Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort ........ and resources of each
State ....... of the economic, social and cultural rights indispensable for his
dignity and the free development of his personality." Article 25 assures that C
"Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family including food, clothing, housing and
medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control." Similarly are the D
social, civil, economic and cultural rights given in European Convention.

The Declaration on the Right to Development to which India is a
signatory recognising that development is a comprehensive economic, so-
cial, cultural and political process, which aims at the constant improvement
of the well-being of the entire population and of all individuals on the basis E
of their active, free and meaningful participation in development and in the
fair distribution of benefits resulting therefrom. Article 1 assures that "The
right to development is an inalienable human right by virtue of which every
human person and all peoples are entitled to participate in, contribute to,
and enjoy economic, social cultural and political development, in which all p
human rights and fundamental freedoms can be fully realised." Article 2
assures right to active participation and benefit of his right to development.
Article 3 enjoins the state as its duty to formulate proper national develop-
ment policies that aim at the constant improvement of the well-being of
the entire population and of all individuals, on the basis of their active, free
and meaningful participation in development and in the fair distribution of G
the benefits resulting therefrom. Article 3(1) states that it is a primary
responsibility of the State to create conditions favourable to the realisation
of the right to development. In particular, Article 4(1) directs the State as
its duty to take steps individually and collectively for providing facilities for
full realisation of right to development. Article 8(1) enjoins that the State H
268 SUPREME COURT REPORTS (1995] 2 S.C.R.

A should undertake necessary measures for the realisation of the right to
development. Article 10 says that steps should be taken to ensure the full
exercise and progressive enhancement of the right to development, includ-
ing the formulation, adoption and implementation of policy, legislative and
other measures for legislative and executive measures."

B Article 38 of the Constitution of India provides that "The State shall
strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and
political, shall·inform all the institutions of the national life. In particular,
strive to minimise the inequalities in income, and endeavour to eliminate
C inequalities in status, .facilities and· opportunities, not only amongst in-
dividuals but amo~t groups of people residing in different areas or
engaged in different vocations." Article 39(b) directs the State "that the
ownership and control of the material resources of the community are so
distributed as best to subserve the common good". All human rights derive
from dignity and worth in man. Democracy blossoms the person's full
D freedom to achieve excellence. The socio-economic content in directive
principles is_ all pervasive to make the right to life meaningful to all Indian
citizens.

Granville Austin in his "The Indian Constitution's Seamless Web",
E Lecture in Rajiv Gandhi Institute for Contemporary Studies, stated that
• the founding fathers of the Constitution raised three grand goals for India
in the Constitution : (i) Achieving a more equitable society through a
transformation they called a social revolution; (ii) Preserving and enhanc-
ing national unity and integrity; and (iii) Establishing the spirit as well as
p the institutions of democracy. India could not be truly democratic unless
the social revolution has established the just society. Without national unity,
little progress could be made towards any social and economic reform or
democracy. Equally, without democracy and reform, India was unlikely
either to preserve or to enhance its unity. Judicial system has particular
important role to play. In a welfare state, liberty, equality and fraternity as
G the trinity and social welfare are close companions. They are complimen-
tary and supplementary means to each other to create conditions for self
expression and balanced growth so that every citizen becomes responsible
and responsive for successful working of democracy.

H Illiot Dodds in his "Libel'ty and Welfare", 1957 Ed. at p.17 stated that
\

MD. KESEKAR v. V.P. BARDE 269

"welfare is actually a form of liberty in as much as it libertes men fro~ A
social conditions which narrow their choices and brighten theii self
development. Article 46 of the Constitution mandates the State "to promote
with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and t~e
Scheduled Tribes, and shall protect them from social injustice and all forms B
of exploitation." Dr. B.R. Ambedkar, while winding up the debate.'> on the
Draft Constitution, stated on the floor of the Constituent Assembly that
the real ~eason and justification for inclusion of the Directive Principles in
the Constitution is that the party in power in disregard of its political
ideologies, will not sway away by its ideological influence but "should have
due regard to the ideal of economic democracy which is the foundation C
and the aspiration of the Consitution." "Whoever may capture · the
governmental power will not be free to do what he likes tQ do in the
exercise of the power. He cannot ignore them. He may not have to answer
for the breach in a court of law, but he will certainly have to answer for
them before the electorate when the next election comes." Dr. Ambedkar D
further stated that :

'We must make our political democracy a social democracy as well.
Political democracy cannot last unless there lies at the base of it
social democracy. What does social democracy mean? It means a
way of life which recognises liberty, equality and fraternity as the E
principles of life. These principles of liberty, equality and fraternity
are not to be treated\ as separate items in a trinify. They form a
union of trinity in the sense that to divorce one from the other is
to defeat the very purpose of democracy........ In politics we will
be recognising the principles of one man one vote and one vOte F
one value. In our social and economic life, we shall, by reason of
our social and economic structure, continue to deny the principle
of one vote one value........ If we continue to deny it for long, we
will do so only by putting our political democracy in peril We must
remove this contradiction at the earliest possible moment or else
those who suffer from inequality will blow up the structure of G
political democracy which this Assembly ~ so laboriously built
up".

Article 21 of the Constitution assures right to life. To make right to
life meaningful and effective, this Court put up expansive interpretation H
270 SUPREME COURT REPORTS (1995] 2 S.C.R.
'
A and brought within its ambit right to education, health, speedy trial, equal
wages for equal work as fundamental rights. Articles 14, 15 and 16 prohibit
discrimination and accord equality. The Preamble of the Constitution as a
socialist republic visualises to remove economic inequalities and to provide
facilities and opportunities. for decent standard of living and to protect the
economic interest of the weaker segments of the society, in particular,
B Scheduled Castes i.e. Dalits and the Schedules Tribes i.e. Tribes and to
protect them from "all forms of exploitations". Many a day, have come and
gone after January 26, 1950 but no leaf is turned in their lives of the poor
and the gap between the rich and the poor. is gradually widening on the
brink of being unbridgeable.
c
Robert L. Simon in his 'Troubled Waters : Global Justice and Ocean
Resources' (1984) has stated that "in a world of vastly unequal oppor-
tunities, where some are born into relative affluence and others into a
subsistence economy or worse, to view...... resources as the libertarian does
as the exclusive property of those who exploit them or otherwise legitimate-
D ly acquire them perpetuates or extends the initial inequalities." At page 198,
he mentions that the right to life to illustrate is of a positive right. He states
that "right to life is considered as a positive right if it requires not only that
we refrain from killing the rights barely but also that we provide him with
basic necessities where he is unable to do so himself'. Dias, in his
E Jurisprudence, 5th Ed. at p. 85 has stated that "Democracy is workable as
long as there is a substantial area of shared values and aspiratio~s among
the people and where they have the maturity to rise above differences."

Providing adequate means of livelihood for all the citizens and
p distribution of the material resources of the community for common wel- ,.__
fare, enable the poor, the Dalits and tribes to fulfill the basic needs to bring
about a fundamental change in the structure of the Indian society which
was divided by erecting impregnable walls of separation between the
people on grounds of cast, sub-caste, creed, religion, race, language and
sex. Equality of opportunity and status thereby would become the bed-
G rocks for social integration. Economic empowerment thereby is the foun-
dation to make equality of status, dignity of person and equal opportunity
a truism. The core ~f the commitment of the Constitution to the social y
revolution through rule of law lies in effectuation of the fundamental rights
and directive principles as supplementary and complimentary to each
ff other. The Preamble, fundamental rights and directive principles • the
MD. KESEKAR v. V.P. BARDE 271

trinity are the conscience of the Constitution. Political democracy has to A
be stable. Socio-economic democracy must take strong roots and should
become a way of life. The State, therefore, is enjoined to provide adequate
means of livelihood to the poor, weaker sections of the society the Dalits
and tribes and to distribute material resources of the community to them
for common welfare etc.
B
Dr. Justice Gajendra Gadkar, the former Chief Justice of this Court
in ·his 'The Constitution of India, its philosophy and postulates' stated at
p.18 of 1969 Edn. that "the ultimate object of Dfrective Principles is to
liberate the Indian masses in a positive sense to free them from the passivity
endangered by centuries of coercion, by society and by nature and by C
ignorance and from the object conditions that had prevented them from
fulfilling their best selves". Therefore, civil, political, social, economic and
cultural rights are necessary to the individual to protect and preserve
human dignity, social and economic rights are sine quo non concomitant
to assimilate the poor, the depressed and deprived i.e. the Dalits and D
Tribes in the national main stream. for ultimate equitable society and
democratic way of life to create ·unity, fraternity among people in an
integrated Bharat.

Lest Fundamental Rights in Chapter III would remain teasing il-
lusions to the poor, disadvantaged and deprived sections of the society, the E
disadvantaged cannot effectively exercise their fundamental rights. Society,
therefore, must help them to enjoy freedom accorded in Chapter III of on
Fundamental Rights.

Justice K.K. Mathew, a former Judge of this Court, in his p
'Democracy, Equality and Freedom' has i.tated at p. 37 that "Property is a
legal institution the essence of which is the creation and protection of
certain private rights in wealth of any kind. The institution performs many
different functions. One of these functions is to draw a circle arm.\fld the
activities of each private individual or organisation. Within that circle, the
owner has a greater degree of freedom than without." At page 38, the G
learned Judge stated that "In a society with a mixed economy, who can be
sure that freedom in relation to property might not be regarded as an
aspect of individaul freedom? People without property have a tendency to
become slaves. They become the property of others as they have no
property themselves. They will come to say: "make us slaves, but feed us". H
272 SUPREME COURT REPORTS [1995) 2 S.C.R.
/
'
A Liberty, independence, self-respect, have their roots. in property. To
denigrate the institution of property is to shut one's eyes to the stark reality
evidence by the innate instinct and the steady object of pursuit of the vast
majority of people. Protection of· property i"nterest may quite fairly be
deemed in appropriate circumstances an aspect of freedom." At page 39,
B he further stated that "There is no surer way to give men the courage to
be free than to insure them a competence upon which they can rely. This
is why the Constitution-makers wanted that the ownerhip of the material
resources of the community should be so distributed as to subserve the
common good. People become a ·society based upon relationship and
status." At page 56, he stated that "the economic rights provide man with
C freedom from fear and freedom from want, and that they are as important
if not more, in the scale of values."

Professor Hocking has judiciously put : "To contemporary conscious-
ness it has become an axion that there can be no freedom without
provision; for a large part of mankind the main task of freedom is at the
D economic level. But it remains true that provision, work and leisure are not
enough the most abundant provision is not human freedom unless a man
remains the unhampered director of his powers of thought and action."
Agricultual land is the foundation for sense of security and freedom from
want and fear. Assured possession is a lasting root for prosperity, dignity
E of person and means for pursuit of excellence. Justice is an attribute of
human conduct and rule of law is indispensable foundation to establish
socio-economic justice. Doctrine of political ·economy must include an
interpretraticin of the public good which is based on justice that would
guide the people when questions of economic and social policy are under
consideration. · ',
F
Rawls in his )Theory of Justice" at p. 259 stated that :

"From the beginning I have stressed that justiCe as fairness applies
to the basic structure of society. It is a conception for ranking social
G forms viewed as closed systems. Some decision concerning these
background arrangements is fundamental and cannot be avoided.
In fact, the cumulative effect of social and economic legislation is
to specify the basic structure. Moreover, the social system shapes y
the wants and aspirations that its citizens come to have. It deter-
H mines in part the sort of persons they want to be as well as the
M.D. KESEKAR v. V.P. BARDE 273

sort of persons they are. Thus an economic system is not only an A
institutional device for satisfying existing wants and needs but a
way of creating and fashioning wants in the future. How men work
together now to satisfy their present desires affects the desires they
will have later on, the kind of persons they will be. These matters
are, of course, perfectly obvious and have always been recognised. B
They were stressed by economists as different as Marshall and
Marx. Since economic arrangements have these effects, and indeed
must do so, the choice of these institutions involves some view of
human good and of the design of institution to realize it. This
choice must, therefore, be made on moral and political as well as
on economic gronds." c
In Devati Balasubrahmanyam v. District Collector, Nello~e, (1986) 2
ALT 1, the Andhra Pradesh High Court considering the question whether
constitutionality of the Government Order allotting 20% of the fair price
shops in a District to the Dalits and tribes, violates Articles 14 and 19(1)(g) D·
of the Constitution, held that equalitY of opportunity is not simply a legal
equality, its existence depends not merely on the absence of possiblities but
on the presence of abilities. Those who have been disadvantaged by the
existing social conditions, should be given more benefits by altering the
ways of distribution. The distributive justice accomplishes the proportional
equality. The proportional rewards to the groups of the people would E
enable the groups of people to level up their income and economic status
in proportion to their membership in the country's population. Economic
empowerment to the Dalits and tribes is one of the principles of econoi;nic
justice envisaged under Article 46 of the Constitution. Equality of oppor-
tunity by providing 20% reservation in the distribution of the fair price F
shops in the district to the Dalits and tribes, was held to be valid and does
not violate Articles 14 and 19 of the Constitution.

Economic empowerment to the poor, Dalits and Tribes, is an integral
constitutional scheme of socio-economic. democracy and a way of life of
political democracy. Economic empowerment is, ther~fore, a basic human G
right and a fundamental right as part of right to live, equality and of status
y and dignity to the poor, weaker sections, Dalits and Tribes. The State has
evolved, by its legislative and executive action, the policy to allot lands to
the Dalits and tribes and other weaker sections for their economic em-
powerment. The government evolved two pronged t;conomic policies to H
274 . SUPREME COURT REPORTS [1995] 2 S.C.R.

A render economic justice to the poor. The Planning Commission evolved
policies like DRDL for economic empowerment of the weaker sections of
- the society; the Dalits and tribes in particular. There should be short term
policy for immediate sustenance and long term policy for stable and
permanent economic empowerment. All the State Governments also
B evolved assignment of its lands or the lands acquired under the ceiling laws
to them. Appropriate legislative enactments are brought on statute books
to prevent alienation of the assigned lands or the property had under the
planned schemes, and imposed prohibition thereunder of alienation,
declaring any conveyance in contravention thereof as void or illegal and
inoperative not to bind the State or the assignee. In case the assignee was
C disqalified or not available, on resumption of such land, the authorities are
enjoined to resume the property and assign to an heir or others eligible
a~ong the Dalits and tribes or weaker sections in terms of the policy. The
prohibition is to effectuate the constitutional policy of economic empower-
ment under Articles 14,21,38, 39· and 46 read with the Preamble of the
D Constitution. Even in respect of private sales of the lands belonging to
tribes, statutes prohibit alienation without prior sanction of the competent
authority.

It is seen that prior permission for alienation of the land was a
condition precedent. Before permission is given, the competent authority
E is enjoined, by operation of Article 46 of the Constitution, to enquire
whether such alienation is void under law or violates prov.isions of the
Constitution and whether permission could be legitimately given. In that
behalf, the competent ·authority is enjoined to look to the nature of the
property, subject-matter of the proposed conveyance and pre-existing
p rights flowing thereunder and whether such alienations or encumbrances
violate provisions of the Constitution or the law. If the answer is in the
positive, then without any further enquiry the permission straightaway
would be rejected. Even in case the permission is granted, it· would be
decided on the anvil of the relevant provisions of the Constitution and the
la~. In this case, the authorities, though had not adverted to the aspect of
·G the matter, broadly refused permission on the ground that the assigned
land cannot be permitted to be sold or. converted to non- agricultural use.
The action refusing permission, therefore, is in consonance with the Con-
stitutional scheme in Part IV of the Directive Principles. The agreement is, t
therefore, void under s.23 of the Contract Act as opposed to public p·olicy,
H vide judgment in DTC v. DTC Mazdoor Congress, [1990] Suppl. 1 SCR, 192,
\

M.D.KESEKARv. V.P.BARDE 275

by one of us Ramaswamy, J. with whom Sawant and Ray, JJ. agreed by A
separate but concurring judgment and the permission was rightly refused
to be given for alienation. The possession is unlawful. Section 53-A of
Transfer of Property Act is not attracted. The appellant's possession
continues to be unlawful and he is not entitled to any improvement made
on the lands. The Collector is directed to resume the lands immediately
and assign the same to the legal representatives of first respondent, if found B
eligible- or to any other eligible tribal.

Accordingly, the appeal is dismissed but in the circumstances without
y costs.

T.NA. Appeal dismissed.

/

y