Rajasthan High Court
Prem Singh And Ors vs
State Of Raj And Ors on 2 July, 2019
Bench: Veerendra
Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5078/2007
1.
Prem Singh S/o Shri Guman Singh
2.
Anand Singh S/o Shri Hem Singh
3.
Daula Ram Balai S/o Shri Chandra Ram
4.
Chhotu Ram Gurjar S/o Shri Kanha Ram
5.
Kajod Mal Meena S/o Shri Gadu Mal, All Resident Of
Village And Post Trilokpura, District Sikar.
----Petitioners
Versus
1.
State Of Rajasthan Through Its District Collector, Sikar.
2.
Officer In-Charge, Revenue Section, Collectorate, Sikar.
Additional District Collector, Sikar.
3.
Sub-Divisional
Commissioner,
Dantaramgarh,
District
Sikar.
4.
Tehsildar, Dantaramgarh, District Sikar.
5.
Secretary, Annpurna Medical Training Institution College
Of Nursing, Jaipur Road, District Sikar.
----Respondents
For Petitioner(s) : Mr. N.K. Maloo, Senior Advocate, with Mr. Narenda
Singh For Respondent(s) : Mr. M.M. Ranjan, Senior Advocate, with Mr. Daulat
Sharma Mr. Akshay Sharma, Addl.G.C.
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 2nd July, 2019
Aggrieved of the allotment of 6 hectares of charagah (pasture) land for
institutional purpose vide impugned order dated 12th June, 2007; the
petitioners - Villagers of Village Trilokpura, Tehsil Dataramgarh, District
Sikar, have instituted the present writ application in the welfare of their
village.
(D.B. SAW/1074/2019 has been filed in this matter. Please refer the same
for further orders) (2 of 24) [CW-5078/2007]
2. Briefly, the essential skeletal materials facts necessary for
adjudication of the controversy raised are: that by the impugned order made by
the Collector, Sikar, 6 hectares land has been allotted to respondent number 5
- Annapurna Medical Training Institution (College of Nursing), Jaipur Road,
District Sikar. It is pleaded case of the petitioners that the subject land
allotted is a part of Khasra Number 231 measuring 16.29 hectares, which was
charagah land. For there is a shortage of pasture land in the area with
reference to the cattle land ratio. For there is no land available even the
proposal sent to the State Government to declare the land measuring 2.18
hectares adjacent to the land in question as pasture land, in lieu of the
impugned allotment made; could not materialize. The allotment vide impugned
order dated 12th June, 2007, has been assailed being contrary to the provisions
of the Rajasthan Panchayati Raj Act, 1994 (for short, "the Act of
1994") and the Rajasthan Panchayati Raj Rules, 1996 (for short, "the
Rules of 1996").
3. Mr. N.K. Maloo, learned Senior Advocate, contended that Section 8-A
and 8-E of the Act of 1994, contemplates constitution of 'Gram Sabha' for each
panchayat circle and the 'Gram Sabha' is obliged to hold at least two meetings
every year. No such procedure has been adopted in the instant case at hand. It
is further urged that Rule 7 of the Rules of 1996, contemplates agenda for
'Gram Sabha' meetings for the items detailed out therein, which includes under
Clause-X - Development of abadi and pasture land. Referring to Rule 93 of the
Rajasthan Land Revenue Act, 1956 (for short, "the Act of 1956"), it
is contended that right of grazing on pasturage land shall extend only to the
cattle of the village or villages for which such land has been set (D.B.
SAW/1074/2019 has been filed in this matter. Please refer the same for further
orders) (3 of 24) [CW-5078/2007] apart and shall be regulated by rules
made by the State Government. Referring to the Rajasthan Tenancy (Government) Rules,
1955, framed in exercise of the power conferred by Section 257 of the Rajasthan
Tenancy Act, 1955 (for short, Rules of 1955"), it is emphasized that such
land is required to be kept for exclusive use for grazing of village cattle
free of charge. Further, in case of dearth of common grazing area, 'Maqbooza
Birs' can also be turned into 'Charagah'. According to Rule 6 of the Rules of
1955, the rough scale adopted for Charagah land is one half bigha per head of
cattle. It is also pointed out that the allotment of set apart of pasture land
has to be done in consultation with the Panchayat. In the event of
classification of any pasture land under sub-rule (1) of Rule 7 of the Rules of
1955, the Collector is required to set apart an equal area of unoccupied culturable
government land (Sawai Chak), if available, as pasture land, in the same
village. Thus, according to the learned Senior Counsel, the allotment of the
land involved herein has been made in utter disregard to the Rules of 1955.
4. Learned Senior Counsel further pointed out that it was on account of
political influence of respondent number 5, that a particular land has been
allotted despite there being dearth of Charagah land. Hence, the impugned order
dated 12 th June, 2007, deserves to be quashed and set aside. Reference has
also been made to Article 51-A(g) and (h) of
the Constitution of India to impress upon that it is the duty of every citizen
of the country to protect and improve the natural environment including
forests, lakes, rivers and wildlife and to have compassion for living
creatures. Further every citizen is under a fundamental duty to develop the
scientific temper, humanism and the spirit of inquiry (D.B. SAW/1074/2019 has
been filed in this matter. Please refer the same for further orders) (4 of
24) [CW-5078/2007] and reform. For there are about 2526 (two thousand five
hundred and twenty six) cattle and the available Charagah land is insufficient
as to the number of cattle in the village. Thus, allotment of 6 hectares of
Charagah land would further reduce the grazing area for the cattle. Moreover,
there is no other land available for conversion to Charagah land for even the
2.18 hectares of land was already in the khatedari of Jagdish Singh since 15th
December, 2004. That apart, the land involved herein has been allotted at a
price far-less than the chargeable.
5. Referring to the report of the Tehsildar (Annexure-3) dated 17th
November, 2006, it is contended that there is no land available in the village
for conversion to Charagah land. Further, the Collector in his affidavit filed
on 7 th July, 2005, in compliance of the order dated 5th May, 2009, stated that
the proposal of conversion of 8.61 hectares "Sawai Chak' land in Vilage
Trilokpura, Sujawas, Sherpura, Goriya and Maqsoodpura, was sent to the State
Government and the State Government accorded its 'No Objection Certificate' for
conversion, but in the instant case at hand, it is the only land available in
the Village Trilokpura, which is relevant. The land of other villages which are
3-5 kms away from Trilokpura, is not available. Hence, the impugned action in
allotment of the land to respondent number 5 vide impugned order dated 12th
June, 2007, merits rejection. In support of his stand, learned Senior Counsel
has relied upon the opinions in the cases of Bhavnagar University Vs. Palitana
Sugar Mill Pvt. Ltd. and Ors.: 2003 (2) SCC 111, Bhogireddi Varalakshmi and
Ors. Vs. Mani Muthupandi and Ors.: 2017 (3) SCC 802, Animal
Welfare Board of India vs. A. Nagaraja and Ors.: 2014 (7) SCC 547,
Jagpal Singh Versus State of Punjab: 2011 (11) SCC 396, Gulab (D.B.
SAW/1074/2019 has been filed in this matter. Please refer the same for further
orders) (5 of 24) [CW-5078/2007] Chand & Ors. Vs. State of Rajasthan
& Ors.: 2007 (3) DNJ (Raj.) 1204, Gulab Kothari Versus State: 2017 (1) WLC
562, Ramana Dayaram Shetty vs. International Airport Authority
of India and Ors.: 1979 (3) SCC 489 and in the case of Olga
Tellis and Ors. vs. Bombay Municipal Corporation and Ors.: 1985 (3)
SCC 545 so also resolution of Gram Panchayat dated 21st May, 2019, wherein the
Gram Panchayat resolved and requested the State Government to cancel the
allotment of Charagah land.
6. Per contra, Mr. M.M. Ranjan, learned Senior Counsel, appearing on
behalf of the respondent number 5, resisting the claim of the petitioners
contended that the District Collector, Sikar, on the basis of response received
from the Tehsildar, Dataramgarh, as to the proposal for allotment of the land
involved herein dated 17th November, 2006, 13th December, 2006 and 19th
January, 2007, so also proposal from the Sub Divisional Officer, Dataramgarh,
dated 23rd November, 2006, along with 'No Objection Certificate' from Village
Panchayat forwarded the matter to the State Government to accord permission for
allotment of 6 hectares of land to the respondent number 5 - Educational
Institution.
7. Learned Senior Counsel, referring to Section 92 of the Act of 1956,
further contended that this provision in no uncertain terms contemplates
setting apart land for any special purpose out of the land, such as, for free
pasturage of cattle, for forest reserve, for development of abadi or for any
other public or municipal purpose and such land shall not be used otherwise
than for such purpose without the previous sanction of the Collector. Hence,
there is no element of any illegality in the action of the State-respondents
keeping in view that importance of education is the reason for (D.B.
SAW/1074/2019 has been filed in this matter. Please refer the same for further
orders) (6 of 24) [CW-5078/2007] allotment involved herein. Learned Senior
Counsel also referred to the Rajasthan Land Revenue (Allotment of Unoccupied
Govt. Agricultural Lands for the Construction of Schools, Colleges,
Dispensaries, Dharamshalas & Other Buildings of Public Utility) Rules, 1963
(for short, "the Rules of 1963"), wherein Rule 6 contemplates
allotment of land for construction of schools, dispensaries, dharamshalas and
other buildings of public utility.
8. Referring to the Rules of 1955, it is contended that a glance of Rule
7, would reflect that the Collector 'may' in consultation with the Panchayat
change classification of any pasture land as defined in sub-section (28) of
Section 5 of the Rajasthan Tenancy Act, 1955; thus, it is discretion of the
Collector, which has been rightly exercised. It is further pointed out that the
Sarpanch issued the required 'No Objection Certificate' and thus, there is no
violation of any of the provisions of the Rules of 1955. Learned Senior Counsel
would further contend that there are only 20-25 animals (cattle) in the
village. That apart, much more land has been proposed for conversion to
'Charagah' pasture land than the land allotted to respondent number 5. The
allegations against the Sarpanch of being hand-in-gloves with respondent number
5; have been emphatically denied. Moreover, there is 25.98 hectares of pasture
land in Village Trilokpura and 38.28 hectares of Shivay Chak land, available in
the Panchayat of Village Trilokpura, which is available for grazing of the
animals (cattle). According to the animal census of 2003 only about 900 cows
and buffalos were determined in Village Trilokpura, and even that number, has
now reduced to a considerable less number of cattle. Further, the land allotted
to respondent number 5, is near to national highway and there are no trees,
herbs and sherbs on the land. The land is (D.B. SAW/1074/2019 has been filed in
this matter. Please refer the same for further orders) (7 of 24)
[CW-5078/2007] totally barren and is not at all useful for grazing purpose.
According to the learned Senior Counsel, the writ application has been
instituted against the respondent number 5, only to settle the personal
vengeance of the petitioner - Prem Singh while he has no interest whatsoever in
the subject land involved herein for there is no pleading to that effect in the
writ application whereas respondent number 5, has invested a huge amount of
money for leveling of the land for construction of educational institution,
which is equally important for the public at large. Respondent number 5,
applied for allotment of 6 hectares of land vide his application dated 30th
October, 2006 and upon report of the Additional Collector, on the basis of
inputs from the Sub Divisional Officer and Tehsildar; the allotment has been
made. The State Government sanctioned allotment vide order dated 28th May,
2007, and prior to that, respondent number 5 deposited a sum of Rs.32,40,000/-
(Rupees: Thirty Two Lac Forty Thousand), vide challan dated 8th June, 2007,
leading to the allotment order dated 12th June, 2007. It is also pointed out
that the order of allotment made in favour of the respondent number 5, is
appealable under Chapter-V of the Rajasthan Land Revenue Act, 1956. Hence, writ
application merits rejection on that count as well.
9. Mr. M.M. Ranjan, learned Senior Counsel, referring to the order dated
12th May, 2009, contended that a proposal for conversion of 2.18 hectares of
adjacent land to the land allotted, was sent to the State Government for
conversion as pasture land way back on 10th April, 2007, which is pending
consideration. At the same time, further efforts were to be undertaken to find
out other land which can be made available in nearby villages to be declared as
pasture land. According to the learned Senior Counsel, (D.B. SAW/1074/2019 has
been filed in this matter. Please refer the same for further orders) (8 of
24) [CW-5078/2007] 8.61 hectares of land was allotted for conversion as pasture
land and 2.18 hectares of land is still under consideration for conversion as
pasture land.
10. Repelling the statement made in the additional affidavit dated 21st
May, 2019, under paragraph 3, it is pointed out that factual matrix as stated
is seriously disputed.
11. Moreover, on the same subject matter, a Division Bench of this Court
declined D.B. Civil Writ Petition Number 16551 of 2017: Prem Singh & Anr.
Versus State of Rajasthan & Ors.; vide order dated 22nd September, 2017,
wherein 16 bighas of land was allotted to respondent number 6 therein (Mamraj
Agarwal Foundation), observing that cause projected may be of substance, but,
keeping in view the nature of allotment, no interference was required
notwithstanding the fact that the 'Gram Panchayat' did not pass any resolution
for allotment of the land involved therein. Hence, the writ application merits
rejection on that count as well.
12. I have heard the learned counsel for the parties and with their
assistance, perused the relevant materials available on record as well as gave
my thoughtful consideration to the submissions at Bar.
13. Indisputably, respondent number 5 has been allotted 6 hectares of
land out of Khasra Number 231 consisting of 16.29 hectares indicated as
Charagah land under the Rules of 1963, subject to terms and conditions
stipulated therein, on lease for 30 years for establishment of nursing college,
dental college and other educational institution(s).
14. The right to every species has been recognized as inherent right to
live and protection by law, subject to exception provided out of necessity. While
considering the aspect of Compassion, (D.B. SAW/1074/2019 has been filed in
this matter. Please refer the same for further orders) (9 of 24)
[CW-5078/2007] Humanism and Speciesism; the Supreme Court in the case of
Bhogireddi Varalakshmi & Ors. (supra), in no uncertain terms observed
that PCA Act, recognized the rights of animals,
without sacrificing the interest of human beings under the Doctrine of
necessity, which is inclusive of knowledge, which will be useful for saving or
for prolonging life or alleviating suffering or for combating any disease,
whether of human beings, animals or plants and also destruction of animals for
food under Section 11(3) of the PCA Act. Evidently,
those restrictions are the direct inevitable consequences or the effects, which
could be said to have been in the contemplatation of the legislature for human
benefits, since they are unavoidable. Thus, animals like Cows, Bulls etc. are
all freely used for farming, transporting loads etc., that too, for the benefit
of human beings, thereby subjecting them to some pain and suffering, which is
also unavoidable; but permitted by the Rules framed under the PCA Act.
The allotment of the land involved herein for establishment of educational
institution cannot be considered to be avoidable non-essential human activity
like Bullock-cart, Jallicattu etc. as has been observed by the Supreme Court in
the case aforesaid.
15. The importance of educational institution needs no further statement
for ''education is the most powerful weapon, which you can use to change the
world": Nelson Mandela. Thus, just like essential elements as food and
shelter, education is the basic necessity of life. Educated mind means an open,
informed and a healthy mind. To the curiosity, one can find answers on his own
by education. Education is essential for broad and reasoned thoughts, views and
opinions and is an essential requirement for a civilized society. Education
brings awareness (D.B. SAW/1074/2019 has been filed in this matter. Please
refer the same for further orders) (10 of 24) [CW-5078/2007] and gives an
idea how to live and lead life respectfully, purposefully and to make out best
out of the resources available. Education is an important tool for development
of skills in problem solving and decision process. 'Knowledge is power'. Thus,
observations made by the Apex Court of the land in the case referred to and
relied upon by the learned counsel for the petitioners pitted against human
interest and benefit with reference to education; cannot be said to be
avoidable or non- essential activity.
16. In the case of Jagpal Singh (supra), the Supreme Court made
observations in the backdrop of Section 3 of the Estates Abolition Act wherein
people with power and pelf operating in villages systematically encroached upon
communal lands and put them to uses totally inconsistent with its original
character, for personal aggrandizement at the cost of the village community. In
the instant case at hand, the land involved herein has been allotted for
establishment of educational institution(s). In the case of Bhogireddi
Varalakshmi and Ors., the Apex Court of the land held thus:
"51. When we
look at the rights of animals from the national and international perspective,
what emerges is that every species has an inherent right to live and shall be
protected by law, subject to the exception provided out of necessity. Animal has
also honour and dignity which cannot be arbitrarily deprived of and its rights
and privacy have to be respected and protected from unlawful attacks.
52. Universal Declaration of Animal Welfare (UDAW) is a campaign led by
World Society for the Protection of Animals (WSPA) in an attempt to secure
international recognition for the principles of animal welfare. UDAW (D.B.
SAW/1074/2019 has been filed in this matter. Please refer the same for further
orders) (11 of 24) [CW-5078/2007] has had considerable support from
various countries, including India. WSPA believes that the world should look to
the success of the Universal Declaration of Human Rights (UDHR) to set out what
UDAW can achieve for animals. Five freedoms referred to in UDAW, which we will
deal with in latter part of the judgment, find support in PCA Act and
the rules framed thereunder to a great extent.
53. World Health Organization of Animal Health (OIE), of which India is
a member, acts as the international reference organisation for animal health
and animal welfare. OIE has been recognised as a reference organisation by the
World Trade Organisation (WTO) and, in the year 2013, it has a total of 178
member countries. On animal welfare, OIE says that an animal is in good state
of welfare if (as indicated by Scientific evidence) it is healthy, comfortable,
well nourished, safe, able to express innate behaviour and if it is not
suffering from unpleasant states such as pain, fear and distress.
FREEDOM:
54. Chapter 7.1.2 of the guidelines of OIE, recognizes five
internationally recognized freedoms for animals, such as:
(i) freedom from hunger, thirst and malnutrition;
(ii) freedom from fear and distress;
(iii) freedom from physical and thermal discomfort;
(iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behavior.
Food and
Agricultural Organisation (FAO) in its "Legislative and Regulatory Options
for Animal Welfare" indicated that these five freedoms found their place
in Farm Welfare Council 2009 U.K. and is also called Brambell's Five Freedoms.
These five freedoms, as already indicated, are considered to be the fundamental
principles of animal welfare and we can say that these freedoms find a place
in Sections 3 and (D.B. SAW/1074/2019 has been filed in
this matter. Please refer the same for further orders) (12 of 24)
[CW-5078/2007] 11 of PCA Act and they are for animals like the
rights guaranteed to the citizens of this country under Part III of the
Constitution of India.
55. Animals are world-wide legally recognised as 'property' that can be
possessed by humans. On deletion of Article
19(1)(f) from the Indian Constitution, right to property is
more a fundamental right in India, this gives the Parliament more a leeway to
pass laws protecting the rights of animals. Right to hold on to a property
which includes animals also, is now only a legal right not a fundamental right.
We have also to see the rights of animals in that perspective as well.
56. Rights guaranteed to the animals Under Sections
3, 11, etc. are only statutory rights. The same
have to be elevated to the status of fundamental rights, as has been done by
few countries around the world, so as to secure their honour and dignity.
Rights and freedoms guaranteed to the animals Under Sections
3 and 11 have to be read along with Article
51A(g)(h) of the Constitution, which is the magna carta of
animal rights.
COMPASSION:
57. Article 51A(g) states that it shall be
the duty of citizens to have compassion for living creatures. In
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors.
MANU/SC/1352/2005 : (2005) 8 SCC 534, this Court held that by enacting Article
51A(g) and giving it the status of a fundamental duty, one of
the objects sought to be achieved by Parliament is to ensure that the spirit
and message of Articles 48 and 48A are honoured as a fundamental duty of every
citizen. Article 51A(g), therefore, enjoins that it was
a fundamental duty of every citizen "to have compassion for living
creatures", which means concern for suffering, sympathy, kindliness etc.,
which has to be (D.B. SAW/1074/2019 has been filed in this matter. Please refer
the same for further orders) (13 of 24) [CW-5078/2007] read along
with Sections 3, 11(1)(a) &
(m), 22 etc. of PCA Act.
HUMANISM:
58. Article 51A(h) says that it shall be the
duty of every citizen to develop the scientific temper, humanism and the spirit
of inquiry and reform. Particular emphasis has been made to the expression
"humanism" which has a number of meanings, but increasingly
designates as an inclusive sensibility for our species. Humanism also means,
understand benevolence, compassion, mercy etc. Citizens should, therefore,
develop a spirit of compassion and humanism which is reflected in the Preamble
of PCA Act as well as in Sections 3 and 11 of
the Act. To look after the welfare and well-being of the animals and the duty
to prevent the infliction of pain or suffering on animals highlights the
principles of humanism in Article 51A(h). Both Articles 51A(g) and
(h) have to be read into the PCA Act, especially into Section
3 and Section 11 of the PCA Act and be applied
and enforced.
SPECIESISM:
59. Speciesism as a concept coined by Richard Ryder in his various works
on the attitude to animals, like Animal Revolution, Changing Attitudes towards
Speciesism (Oxford: Basil Blackwell, 1989), Animal Welfare and the Environment
(London: Gerald Duckworth, 1992) etc. Oxford English Dictionary defines the
term as "the assumption of human superiority over other creatures, leading
to the exploitation of animals". Speciesism is also described as the
widespread discrimination that is practised by man against the other species,
that is a prejudice or attitude of bias towards the interest of members of
one's own species and against those of members of other species. Speciesism as
a concept used to be compared with Racism and Sexism on the ground that all
those refer to discrimination that tend to promote (D.B. SAW/1074/2019 has been
filed in this matter. Please refer the same for further orders) (14 of 24)
[CW-5078/2007] or encourage domination and exploitation of members of one group
by another. One school of thought is that Castism, Racism and Sexism are
biological classification, since they are concerned with physical
characteristics, such as, discrimination on the ground of caste, creed,
religion, colour of the skin, reproductive role etc. rather than with physical
properties, such as the capacity for being harmed or benefited.
60. We have got over those inequalities like Castism, Racism, Sexism
etc. through Constitutional and Statutory amendments, like Articles 14 to 17,
19, 29 and so on. So far as animals are concerned, Section
3 of the Act confers right on animals so also rights
Under Section 11 not to be subjected to
cruelty. When such statutory rights have been conferred on animals, we can
always judge as to whether they are being exploited by human-beings. As already
indicated, an enlightened society, of late, condemned slavery, racism, castism,
sexism etc. through constitutional amendments, laws etc. but, though late,
through PCA Act, Parliament has recognized the rights
of animals, of course, without not sacrificing the interest of human beings
under the Doctrine of necessity, like experiments on animals for the purpose of
advancement by new discovery of physiological knowledge or of knowledge which
will be useful for saving or for prolonging life or alleviating suffering or
for combating any disease, whether of human beings, animals or plants and also
destruction of animals for food Under Section
11(3) of the PCA Act. Legislature through Section
28 also saved the manner of killing of animals in the manner
prescribed by religions, those are, in our view, reasonable restrictions on the
rights enjoyed by the animals Under Section
3 read with Section
11(1). Evidently, those restrictions are the direct inevitable
consequences or the effects which (D.B. SAW/1074/2019 has been filed in this
matter. Please refer the same for further orders) (15 of 24)
[CW-5078/2007] could be said to have been in the contemplation of the
legislature for human benefit, since they are unavoidable. Further, animals
like Cows, Bulls etc. are all freely used for farming, transporting loads etc.,
that too, for the benefit of human beings, thereby subjecting them to some pain
and suffering which is also unavoidable, but permitted by the Rules framed
under the PCA Act.
NON-ESSENTIAL ACTIVITIES:
61. We have, however, lot of avoidable non-essential human activities
like Bullock-cart race, Jallikattu etc. Bulls, thinking that they have only
instrumental value are intentionally used though avoidable, ignoring welfare of
the Bulls solely for human pleasure. Such avoidable human activities violate
rights guaranteed to them Under Sections
3 and 11 of PCA Act. AWBI, the expert statutory
body has taken up the stand that events like Jallikattu, Bullock-cart race etc.
inherently involve pain and suffering, which involves both physical and mental
components, including fear and distress. Temple Grandin and Catherine Johnson,
in their work on "Animals in Translation" say: The single worst thing
you can do to an animal emotionally is to make it feel afraid. Fear is so bad
for animals I think it is worse than pain. I always get surprised looks when I
say this. If you gave most people a choice between intense pain and intense
fear, they'd probably pick fear.
Both anxiety and fear, therefore, play an important role in animal
suffering, which is part and parcel of the events like Jallikattu, Bullock-cart
Race etc..
RIGHT TO LIFE:
62. Every species has a right to life and security, subject to the law
of the land, which includes depriving its life, out of human necessity. Article
21 of the Constitution, while safeguarding the rights of
humans, protects life and the word "life" has been given an (D.B.
SAW/1074/2019 has been filed in this matter. Please refer the same for further
orders) (16 of 24) [CW-5078/2007] expanded definition and any disturbance
from the basic environment which includes all forms of life, including animal
life, which are necessary for human life, fall within the meaning of Article
21 of the Constitution. So far as animals are concerned, in our
view, "life" means something more than mere survival or existence or
instrumental value for human-beings, but to lead a life with some intrinsic
worth, honour and dignity. Animals' well-being and welfare have been
statutorily recognised Under Sections
3 and 11 of the Act and the rights framed under
the Act. Right to live in a healthy and clean atmosphere and right to get
protection from human beings against inflicting unnecessary pain or suffering
is a right guaranteed to the animals Under Sections
3 and 11 of the PCA Act read with Article
51A(g) of the Constitution. Right to get food, shelter is also
a guaranteed right Under Sections 3 and 11 of
the PCA Act and the Rules framed thereunder, especially when they are
domesticated. Right to dignity and fair treatment is, therefore, not confined
to human beings alone, but to animals as well. Right, not to be beaten, kicked,
over-rider, over- loading is also a right recognized by Section
11 read with Section
3 of the PCA Act. Animals have also a right against the human
beings not to be tortured and against infliction of unnecessary pain or suffering.
Penalty for violation of those rights are insignificant, since laws are made by
humans. Punishment prescribed in Section
11(1) is not commensurate with the gravity of the offence,
hence being violated with impunity defeating the very object and purpose of the
Act, hence the necessity of taking disciplinary action against those officers
who fail to discharge their duties to safeguard the statutory rights of animals
under the PCA Act."
17. In the case of Jagpal Singh (supra), the Supreme Court held thus:
(D.B. SAW/1074/2019 has been filed in this matter. Please refer the same
for further orders) (17 of 24) [CW-5078/2007] "3. Since time
immemorial there have been common lands inhering in the village communities in
India, variously called gram sabha land, gram panchayat land, (in many North
Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in
South India), Kalam, Maidan, etc., depending on the nature of user. These
public utility lands in the villages were for centuries used for the common
benefit of the villagers of the village such as ponds for various purposes e.g.
for their cattle to drink and bathe, for storing their harvested grain, as
grazing ground for the cattle, threshing floor, maidan for playing by children,
carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation
ground or graveyards, etc. These lands stood vested through local laws in the State,
which handed over their management to Gram Sabhas/Gram Panchayats. They were
generally treated as inalienable in order that their status as community land
be preserved. There were no doubt some exceptions to this rule which permitted
the Gram Sabha/Gram Panchayat to lease out some of this land to landless
labourers and members of the scheduled castes/tribes, but this was only to be
done in exceptional cases.
4. The protection of commons rights of the villagers were so zealously
protected that some legislation expressly mentioned that even the vesting of
the property with the State did not mean that the common rights of villagers
were lost by such vesting. Thus, in Chigurupati
Venkata Subbayya v. Paladuge Anjayya MANU/SC/0495/1972 : 1972
(1) SCC 521 (529) this Court observed:
It is true that the suit lands in view of Section 3 of the Estates
Abolition Act did vest in the Government. That by itself does not mean that the
rights of the community over it were taken away. Our attention has not been
invited to any provision of law (D.B. SAW/1074/2019 has been filed in this
matter. Please refer the same for further orders) (18 of 24)
[CW-5078/2007] under which the rights of the community over those lands can be
said to have been taken away. The rights of the community over the suit lands
were not created by the landholder. Hence those rights cannot be said to have
been abrogated by Section 3 of the Estates Abolition Act.
5. What we have witnessed since Independence, however, is that in large
parts of the country this common village land has been grabbed by unscrupulous
persons using muscle power, money power or political clout, and in many States
now there is not an inch of such land left for the common use of the people of
the village, though it may exist on paper. People with power and pelf operating
in villages all over India systematically encroached upon communal lands and
put them to uses totally inconsistent with its original character, for personal
aggrandizement at the cost of the village community. This was done with active
connivance of the State authorities and local powerful vested interests and
goondas. This appeal is a glaring example of this lamentable state of affairs.
18. In the case of Ramana Dayaram Shetty (supra), the Apex Court of the
land held thus:
"10. Now, there
can be no doubt that what paragraph (1) of the notice prescribed was a
condition of eligibility which was required to be satisfied by every person
submitting a tender. The condition of eligibility was that the person
submitting a tender must be conducting or running a registered 2nd class hotel
or restaurant and he must have at least 5 years' experience as such and if he
did not satisfy this condition of eligibility his tender would not be eligible
for consideration. This was the standard or norm of eligibility laid down by
the 1st respondent and since the 4th respondents did not satisfy this standard
or (D.B. SAW/1074/2019 has been filed in this matter. Please refer the same for
further orders) (19 of 24) [CW-5078/2007] norm, it was not competent to
the 1st respondent to entertain the tender of the 4th respondents.
It is a well settled rule of administrative law that an executive
authority must be rigorously held to the standards by which it professes its
actions to be judged and it must scrupulously observe those standards on pain
of invalidation of an act in violation of them.
This rule was enunciated by Mr. Justice Frankfurter in Viteralli v.
Seton 359 U.S. 535 : 3 L.Ed. 1012 where the learned Judge said:
An executive agency must be rigorously held to the standards by which it
professes its action to be judged. Accordingly, if dismissal from employment is
based on a defined procedure, even though generous beyond the requirements that
bind such agency, that procedure must be scrupulously observed. This judicially
evolved rule of administrative law is now firmly established and, if I may add,
rightly so. He that takes the procedural sword shall perish with the sword.
This Court accepted the rule as valid and applicable in India in A.S.
Ahluwalia v. Punjab: (1975)ILLJ228SC and in subsequent decision
given in Sukhdev v. Bhagatram: (1975)ILLJ399SC Mathew, J., quoted the
above-referred observations of Mr. Justice Frankfurter with approval. It may be
noted that this rule, though supportable also as emanation from Article
14, does not rest merely on that article. It has an independent existence
apart from Article 14. It is a rule of
administrative law which has been judicially evolved as a check against
exercise of arbitrary power by the executive authority. If we turn to the
judgment of Mr. Justice Frankfurter and examine it, we find that he has not
sought to draw support for the rule from the equality clause of the United
States Constitution, but evolved it purely as a rule of administrative law.
Even (D.B. SAW/1074/2019 has been filed in this matter. Please refer the same
for further orders) (20 of 24) [CW-5078/2007] in England, the recent trend
in administrative law is in that direction as is evident from what is stated at
pages 540-41 in Prof. Waders Administrative Law 4th edition. There is no reason
why we should hesitate to adopt this rule as a part of our continually
expanding administrative law.
Today with tremendous expansion of welfare and social service functions,
increasing control of material and economic resources and large scale
assumption of industrial and commercial activities by the State, the power of
the executive Government to affect the lives of the people is steadily growing.
The attainment of socio-economic justice being a conscious end of State policy,
there is a vast and inevitable increase in the frequency with which ordinary
citizens come into relationship of direct encounter with State power- holders.
This renders it necessary to structure and restrict the power of the executive
Government so as to prevent its arbitrary application or exercise. Whatever be
the concept of the rule of law, whether it be the meaning given by Dicey in his
"The Law of the Constitution" or the definition given by Hayek in his
"Road to Serfdom" and "Constitution of liberty" or the exposition
set-forth by Harry Jones in his "The Rule of Law and the Welfare
State", there is, as pointed out by Mathew, J., in his article on
"The Welfare State, Rule of Law and Natural Justice" in
"Democracy, Equality and Freedom," "substantial agreement is in
juristic thought that the great purpose of the rule of law notion is the
protection of the individual against arbitrary exercise of power, wherever it
is found".
It is indeed unthinkable that in a democracy governed by the rule of law
the executive Government or any of its officers should possess arbitrary power
over the interests of the individual. Every action of the executive Government
must be informed with reason and should be free from arbitrariness. That is the
very (D.B. SAW/1074/2019 has been filed in this matter. Please refer the same
for further orders) (21 of 24) [CW-5078/2007] essence of the rule of law
and its bare minimal requirement. And to the application of this principle it
makes not difference whether the exercise of the power involves affection of
some right or denial of some privilege."
19. In the case of Gulab Chand & Ors. (supra), a resolution of
Panchayat was passed, however, in the said judgment all the relevant provisions
of the Panchayat Act and the notification issued by the State Government in
exercise of Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 have not
been referred to and considered. Further, the decision for allotment was taken
at the dictates of the Minister vide letter sent by Private Secretary of the
Minister. The file of the government can also be summoned. The entire record
therein disclosed that the reports of the Patwari and Tehsildar which were not
in favour of allotment were not considered and overlooked. These negatives
reports of the concerned revenue authorities were deliberately ignored without
any valid reason and ground available in law. Thus, the order for allotment
issued was adjudged as without application of mind and without objective
consideration of the relevant materials available on record including the
report of the Tehsildar. Hence, the decision making process was totally faulty
and the order of allotment was treated as illegal, without jurisdiction and
arbitrary.
20. Further, in the case of Olga Tellis and Ors. (supra), the Hon'ble
Supreme Court observed thus:
"40. Just as a
mala fide act has no existence in the eye of law, even so, unreasonableness
vitiates law and procedure alike, it is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental right, in this case
the right to life, must confirm to the norms of justice and fairplay.
(D.B. SAW/1074/2019
has been filed in this matter. Please refer the same for further
orders) (22 of 24) [CW-5078/2007] Procedure, which is unjust or unfair in
the circumstances of a case, attracts the vice of unreasonableness, thereby
vitiating the law which prescribes that procedure and consequently, the action
taken under it. Any action taken by a public authority which is invested with
statutory powers has, therefore, to be tested by the application of two
standards : The action must be within the scope of the authority conferred by
law and secondly, it must be reasonable. It any action, within the scope of the
authority conferred by law, is found to be unreasonable, it must mean that the
procedure established by law under which that action is taken is itself
unreasonable. The substance of the law cannot be divorced from the procedure
which it prescribe for, how reasonable the law is, depends upon how fair is the
procedure prescribed by it, Sir Raymond Evershad says that, "from the
point of view of the ordinary citizen, it is the procedure that will most
strongly weigh with him. He will tend to form his judgment of the excellence or
otherwise of the legal system from his personal knowledge and experience in
seeing the legal machine at work", ['The influence of Remedies on Rights'
(Current Legal Problems 1953, Volume 6.)]. Therefore, "He that takes the
procedural sword shall perish with the sword." [Per Frankfurter J. in Vtteralli
v. Seton 3 L.Ed. (2nd Series) 1012]"
21. A glance of the opinion would reflect that the Supreme Court in the
case of Olga Tellis (supra), made those observations in an altogether different
and distinguishable factual matrix. Thus, the opinion has no application to the
case at hand.
22. A Division Bench of this Court in the case of Prem Singh Shekhwat
& Anr. Versus State of Rajasthan & Ors.: D.B. Civil Writ Petition
Number 16551 of 2017 (supra), instituted by the (D.B. SAW/1074/2019 has been
filed in this matter. Please refer the same for further orders) (23 of 24)
[CW-5078/2007] petitioner - Prem Singh (herein as well) & Anr. vide order
dated 22nd September, 2017, taking note of the contentions raised, declined
interference in the allotment of pasture land out of the same khasra number for
education purposes, observing thus:
"3. The issue
was earlier on raised before a learned Single Judge of this Court who permitted
the petitioners to withdraw the writ petition filed, granting liberty to
institute a petition in public interest.
4. Contention urged
by the petitioners is that in the village in question the population is 2500.
The head of cattle is 2456. As per pleadings in para 4.1 of the writ petition,
the grazing land available is only 86 bigha.
5. The petitioners
cite a decision of the Supreme Court reported as (2011) 11 SCC 396, Jagpal
Singh & Ors. Vs. State of Punjab & Ors., wherein the Supreme Court
cancelled Government decisions which regularized encroachments as also where
Gram Sabha land was allotted to private persons for commercial enterprises on
payment of money.
6. With the passing
of the Right to Education Act, requirement of educational institutions in India
has assumed importance.
7. In the instant
case we find that only 16 bigha of land has been allotted to respondent No.6
and the purpose is to set up an educational institution.
8. We are of the
opinion that the cause projected in the writ petition may be with a substance
but keeping in view the nature of the allotment we are not inclined to
interfere with the allotment made, notwithstanding the fact that the Gram
Panchayat appears not to have passed any resolution for allotment of the land
in question."
23. Applying the principles deducible from the opinions aforesaid; it is
evident that in the instant case at hand as well, the (D.B. SAW/1074/2019 has
been filed in this matter. Please refer the same for further orders) (24
of 24) [CW-5078/2007] land involved herein, has been allotted for educational
purposes. The necessity and importance of education, by no stretch of
imagination, can be construed to be avoidable or a non-essential activity.
Thus, this Court is not inclined to interfere with the allotment made in favour
of the respondent number 5. The Division Bench of this Court in the case of
petitioners therein (including Prem Singh, who is one of the petitioner
herein), considering the opinion in the case of Jagpal Singh & Ors.
(supra), and emphasizing upon the importance of educational institution(s), in
the backdrop of Right to Education Act, 2009; declined interference to
allotment of land out of the same khasra number notwithstanding the fact that
Gram Panchayat did not pass any resolution for allotment of such land therein
as well.
24. For the reasons and discussions aforesaid; the writ application
instituted by the petitioners fails and is hereby dismissed.
25. Interim order dated 20th February, 2009, granted by this Court
stands vacated.
26. However, in the facts and circumstances of the case, there shall be
no order as to costs.
(VEERENDR SINGH SIRADHANA),J SUNIL SOLANKI /19 (D.B. SAW/1074/2019 has
been filed in this matter. Please refer the same for further orders) Powered
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