REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 104-105 of 2001
State of Kerala and another .... Appellants
Versus
Peoples Union for Civil Liberties,
Kerala State Unit and others .... Respondents
WITH
CIVIL APPEAL NO. 899 OF 2001
Malayora Karshaka Federation .... Appellant
Versus
Niyamavedi and others .... Respondents
AND
CIVIL APPEAL NO. 7079 OF 2001
M. Mohan Kumar .... Appellant
Versus
P. Nalla Thampy Thera and another .... Respondents
JUDGMENT
S.B. SINHA, J.
ISSUE
Effect of a writ of or in the nature of mandamus issued by a High
Court directing implementation of an enactment vis-`-vis a subsequent
2
legislation altering or modifying the right of the beneficiaries under the
former Act, inter alia, is the question involved in these appeals.
They arise out of a judgment and order dated 24th August, 2000 passed
by a Division Bench of the High Court of Kerala at Ernakulam.
BACKGROUND FACTS
The State of Kerala enacted the Kerala Scheduled Tribes (Restriction
on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Act
No.31 of 1975) (for short `the 1975 Act’) with the object of providing
restriction on transfer of land by Members of Scheduled Tribes in the State
of Kerala and for restoration of possession of lands alienated by such
members and for matters connected therewith.
The said Act received the assent of the President of India. It was
included in the Ninth Schedule of the Constitution of India, being item
No.150, by the Constitutional 40th Amendment Act. It was published in the
Kerala Gazette Extraordinary on 14th November, 1975. However, only on
3
24th January, 1986 a Notification was issued bringing the said Act into force
with retrospective effect from 1st January, 1982.
RULES UNDER THE SAID ACT
Kerala Scheduled Tribes (Restriction on Transfer of lands and
Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for
effective implementation of the 1975 Act and were published in the Kerala
Gazette Extraordinary on 18th October, 1986.
PROCEEDINGS
Members of the Scheduled Tribes filed applications for restoration of
their lands in the year 1988 in terms of the provisions of the 1975 Act and
the 1986 Rules.
As the said Act was not implemented in letter and spirit, one Dr.
Nallathampy Thera filed a writ petition which was marked as O.P. No.8879
of 1988 praying inter alia for issuance of a Writ of Mandamus compelling
the State to implement the provisions of the Act and directing the concerned
authorities to deal with and dispose of the applications filed therein. Before
4
the High Court the learned Additional Advocate General appearing for the
State submitted that :
“utmost steps would be taken for the disposal of
the applications and that the Act would be
enforced in all its rigour.”Relying on or on the basis of the said statement, O.P. No. 8879 of
1988 was disposed of by the High Court on 15th October, 1993, inter alia,
calling upon the State to give directions to the Authorities under the 1975
Act to dispose off the applications pending before them within 6 months
from the said date.
The State, however, did not comply with the said directions within the
said time frame. Extensions of time were sought for complying with the
said directions. By the said process, a period of two years lapsed.
Another application for extension of time was filed for
implementation of the Act and the High Court granted six months’ time but
issued certain directions inter alia for the purpose of monitoring the progress
of the implementation of the Act.
5
The said conditions are as under:-
"(i) The State shall ensure that all the applications are disposed of within the extended time. (ii) The State shall immediately communicate copies of this order to the RevenueDivisional Officers of all the Districts for
compliance.(iii) The Authorities under the Act, i.e., the
Revenue Divisional Officers of the
concerned Districts shall file affidavits
before this court once in a month showing
the progress achieved in the disposal of
applications during that month. The first of
these affidavit showing the progress-made
until 31.12.1995 shall be filed before
15.1.1996. The next of the affidavits
showing progress till 31.1.1996 shall be
filed before 15.2.1996 and so on.(iv) The State shall provide the necessary back
up and support to the Revenue Divisional
Officers to complete the work within the
extended time now granted.(v) The State or any of the Revenue Divisional
Officers shall be at liberty to approach this
court in the event of any difficulty being felt
in disposing off the applications.(vi) It is seen from the affidavit filed by the
Government that the pendency of
applications in the Districts of Palakkad,
Wayanad, Idukki and Kottayam is unusually
6large. The Revenue Divisional Officers of
these Districts are directed in particular to
dispose of all the applications within the
extended time.”Applications for restoration of lands which were pending were
disposed of pursuant to the said directions. Appeals were filed in a few
cases but in most of them the orders directing restoration of lands became
final.
Strangely however, no actual restoration of land was effected.
Another application was filed by the writ petitioner on 1st March, 1996
complaining about non-implementation of the said order.
The learned Additional Advocate General once again gave an
assurance that the order of the authorities under the 1975 Act would be
implemented. On or about 28th March, 1996 the High Court directed :-
“The learned Additional Advocate General assures
the court that all out efforts will be made to
dispose of all the pending applications within the
time stipulated by this court and further that
wherever there has been final orders passed, actual
restoration will also be formal orders are necessary
today. Post on 31.5.1996.”(emphasis supplied)”
7
Further affidavits were filed by the Revenue Divisional Officers
reporting progress in the disposal of the applications made under the Act.
On or about 13th August, 1996 the High Court issued the following
directions :-
“1) The Revenue Divisional Officers are
directed to cause delivery of the properties covered
by orders for restoration against which, no appeals
are pending and in which no compensation is
payable, forthwith and in any event within six
weeks from today.2) In view of the submission that the officers
are meeting with resistance in restoring possession
the State and the District Superintendents of Police
of all Districts are directed to afford the needed
protection to the Revenue Divisional Officers to
carry out their duty of restoring possession to the
Tribals.3) The State and the Collectors of the various
Districts are directed to make available to the
Revenue Divisional Officers the necessary man
power and support to carry out the implementation
of the orders for restoration passed under the Act.4) The Revenue Divisional Officers will file
statements before this court by 30.9.1996 reporting
compliance with direction No.1″8
An intra court appeal was preferred thereagainst. The matter was
referred to a Full Bench. An order of stay was passed relying on or on the
basis of a statement made before the Court that amendments to the 1975 Act
were proposed to be made.
However, as the President of India declined to give his assent to the
Bill passed by the Legislature of the State of Kerala for amendment of the
said Act, the order of stay was vacated.
The Full Bench on 21st May, 1998 passed the following order:-
” Heard learned Additional Advocate General,
Mr. T. Mohammed Youseff and Mr. A.X.Varghese, Advocate. The above application is
filed to extend the order of stay granted in the Writ
Appeal for a further period of six months from
21.5.1998. This Court granted the interim order of
stay since at the time the Bill passed by the
Legislative Assembly of the State of Kerala was
pending consideration before the Hon’ble
President of India. It is now stated in the affidavit
that the Hon’ble President of India has declined
assent to the Bill passed by the State Legislative
Assembly. In the light of the Hon’ble President of
India having declined assent to the Kerala
Scheduled Tribe (Restriction on Transfer of Lands
and Restoration of Alienated Lands)Amendment
Act, 1996, there is no justification for this court
9extending the order to stay granted earlier. The
interim stay granted earlier is vacated.2. The learned Single Judge, while disposing
of C.M.P. No. 28950 of 1995 in O.P. 8879 of
1988, was pleased to grant time till 30.9.1996 for
reporting compliance with direction No.1 in the
order. The time was extended from time to time
for compliance with the directions till the order of
stay was granted. Now that the order of stay
having been vacated, we grant six months time to
the State for carrying out the direction contained in
the order of the learned single judge dated 13th
August 1996, passed in C.M.P. No. 28950 of 1995,
without prejudice to the right of the Government in
considering the various aspects of the matter to
bring forward suitable legislation with suitable
changes, if they so desire.”(emphasis added)
On or about 23rd November, 1998 an application for initiating
proceedings under the Contempt of Courts Act, 1971 was filed against the
State and its officers on the premise that orders of the High Court had not
been complied with. A notice was issued therein.
A petition was filed by the State for extension of the period by six
months from 21st November, 1998. However, a statement was made before
the Full Bench that a new Bill would be introduced before the Legislative
Assembly in terms whereof a permanent solution to the problem of
10alienation of tribal lands which had taken place during the period from
1.1.1960 and 1.1.1986 shall be dealt with. The Full Bench, by its order
dated 6th January, 1999, directed :-
“This petition has been filed by the State to extend
the time (sic) granted already by a period of six
months from 21.11.98. We have perused the
affidavit and heard the arguments of both sides.
We have also heard Dr. P. Nalla Thampy Thera.
He opposed the petition for extension of time tooth
and nail. This Court has already granted six
month’s time. The State has explained the reasons
for its inability to introduce the new bill within the
time granted earlier. We are satisfied with the
reasons given in the affidavit. It is now stated in
the affidavit that the Legislative Assembly is
expected to commence its next session on 22.1.99
and that the new bill formulated by the
Government will be introduced in this session.
According to the Government, the new bill is
expected to find a permanent solution to the
problem of alienation of tribal lands which had
taken for the period from 1.1.1960 to 1.1.1986.
Therefore, they pray that in the interest of justice
the State may be granted extension of time to
introduce the Bill in this session.2. We have considered the rival submissions
and are of the opinion that in the interest of justice,
the time already granted has to be extended by
three months from today. As already noticed, the
Assembly session is to commence on 22.1.1999
and the State is proposing to introduce the Bill in
this session.11
3. In view of the above, the time already
granted by this Court is hereby extended by three
months from today. The State shall introduce the
Bill in this session of the Assembly and complete
all the other formalities within the time now
granted. We make it clear that there will be no
further extension of time. The State is directed to
pay cost of this petition to Dr. Nalla Thampy Thera
which is fixed at Rs.5000/-, by way of demand
draft drawn in his name, within three weeks from
today.”(emphasis supplied)
WRIT PROCEEDINGS
Indisputably the Legislature of the State thereafter enacted the Kerala
Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes
Act, 1999 (for short `the 1999 Act’), which inter alia deals with transfer and
alienation of agricultural lands.
Constitutional validity of the 1999 Act, specially the proviso
appended to Section 5(1), Section 5(2), Section 6 and Section 22 were
challenged by filing two writ petitions; one marked as O.P. No.25332 of
1999 filed by Niyamvedi, respondent No.1 in Civil Appeal No.105 of 2001
and another O.P. No.26499 of 1999 by Peoples Union for Civil Liberties,
Kerala State Unit, respondent No.1 in Civil Appeal No.104 of 2001.
12In the aforesaid writ petitions counter-affidavits were filed on behalf
of the Union of India supporting the stand of the tribes.
Malayora Karshaka Federation (appellant before us in C.A. No.899 of
2001) was impleaded as a party therein. By reason of the impugned
judgment and order dated 24th August, 2000, the High Court declared the
aforesaid provisions as ultra vires.
FINDINGS OF THE HIGH COURT
The High Court, while acknowledging, the legislative intent of the
State of Kerala, opined that it was colourable in nature as by reason of the
provisions of the 1975 Act and the orders passed in favour of the members
of the Scheduled Tribes, a vested right accrued to the members of Scheduled
Tribes was destroyed by reason of the provisions of 1999 Act.
Proviso to Sections 5(1), Section 5(2), Section 6 and Section 22 of the
1999 Act were held to be arbitrary. The said provisions were also held to be
discriminatory and thus violative of Article 14 of the Constitution of India.
The issue in regard to violation of Article 19(1)(e) of the Constitution of
13India was determined on the premise that no sufficient material had been
placed before the Court.
Inter alia relying on or on the basis of the decision of this Court in
Madan Mohan Pathak v. Union of India, [ (1978) 2 SCC 50 ], the High
Court held that in effect and substance, by reason of the provisions of the
1999 Act, a judicial decision was sought to be nullified.
The contention of the respondents that Presidential assent having not
been obtained, the 1999 Act was violative of Article 254 of the Constitution
of India was, however, rejected. With regard to compliance of the
requirements of Article 338 of the Constitution of India, consultation with
Scheduled Castes/Scheduled Tribes Commission was held to be not
imperative.
Section 22 of the 1999 Act was held to be ultra vires Article 14 of the
Constitution of India, having regard to the accrued rights of the members of
the Scheduled Tribes in view of the issuance of the writ of mandamus
issued, the High Court directed :-
14
“In the light of our discussion as above, we declare
the proviso to Section 5(1), Section 5(2), Section 6
and Section 22 of the Kerala Restriction on
Transfer by and Restoration of Lands to Scheduled
Tribes Act, 1999, Act 12 of 1999 as
unconstitutional and void. We strike down the
proviso to Section 5(1), Section 5(2), Section 6 and
Section 22 of Act 12 of 1999. We direct the State
and the Authorities under Act 31 of 1975 to
implement the orders for restoration passed under
the Kerala Scheduled Tribes (Restriction of
Transfer of land and Restoration of Alienated
Lands) Act, 1975, Act 31 of 1975 and restrain the
State and the Authorities under Act 12 of 1999
from enforcing the proviso to Section 5(1), Section
5(2), Section 6 and Section 22 of Act 12 of 1999.”THE APPEALS BEFORE US
Civil Appeal Nos. 104-105 of 2003 have been filed by the State of
Kerala against the common judgment and order dated 24th August, 2000
passed by a Division Bench of the Kerala High Court in O.P. Nos. 25332
and 26499 of 1999 filed by Niyamavedi and Peoples Union for Civil
Liberties, Kerala State Unit striking down the proviso to Section 5(1),
Section 5(2), Section 6 and Section 22 of the 1999 Act.
Civil Appeal No.899 of 2001 has been filed by Malayora Karshaka
Federation Kerala Meenangadi (respondent No.7 before the High Court in
O.P. No.25332 of 1999) against the aforesaid order dated 24th August, 2000.
15Civil Appeal No.7079 of 2001 has been filed by M. Mohan Kumar,
Chief Secretary, Government of Kerala against the order dated 4th
December, 2000 passed by a Division Bench of the High Court in C.C.C.
No. 542 of 1986 whereby the Court directed the appellant to appear before it
for framing charges against him in not complying with the final direction
issued by the Court on 18th December, 1999.
CONTENTIONS
Mr. T.L. Viswanath Iyer, learned senior counsel and Mr.Dayan
Kishnan, Advocate, appearing on behalf of the appellants would submit :-
i) The High Court committed a manifest error in holding that the
1999 Act suffers from the vice of colourable exercise of power
or is otherwise mala fide despite holding that the Legislature of
the State of Kerala had the requisite legislative competence
therefor.
ii) The members of the Scheduled Tribes had no fundamental or
common law right to obtain restoration of possession of their
lands which had already been alienated.
16
iii) Such a right having been conferred upon them by reason of the
provisions of 1975 Act, the same could be taken away and/or
modified or altered by reason of a subsequent Act which comes
within Entry 18 of the List II of Seventh Schedule of the
Constitution of India.
iv) Only because non-agricultural lands had been kept out of
purview of 1999 Act, the same by itself did not attract the wrath
of Article 14 of the Constitution of India. .
v) The provisions of the 1999 Act being more beneficial compared
to the provisions of 1975 Act, only because the tribes would be
allotted lands outside their original habitants, the same would
not attract Article 21 of the Constitution of India, particularly
when they would be getting 2 hectares of land as also grant for
payment of compensation to the land holder in stead and place
of repayable amount of loan as provided for in the 1975 Act.
vi) Keeping in view the nature of mandamus issued by the High
Court in the earlier round of litigation, it would not mean that
the State was not precluded from amending or repealing the
1975 Act.
17
vii) The decision of this Court in Madan Mohan Pathak (supra) and
Hoechst Pharmaceuticals Ltd. v. State of Bihar, [ (1983) 4
SCC 45 ] having been explained in Indian Aluminium Co. v.
State of Kerala, [(1996) 7 SCC 637] as also a Constitution
Bench of this Court in State of Tamilnadu v. Arooran Sugars
Ltd., [ (1997) 1 SCC 326 ], the impugned judgment cannot be
sustained.
viii) The tribals in whose favour the orders of restoration had been
passed having not filed any writ petition, it must be presumed
that they were not aggrieved by the provisions of the 1999 Act,
particularly in view of the fact that their association had been
consulted by the Government Officials and in that view of the
matter the writ petitioner – association had no locus standi to
maintain the public interest litigation having regard to Baba
Charan Dass Udhasi v. Mahant Basant Das Babaji Chela Baba
Laxmandas Udasi Sadhu [(2000) 6 SCC 1].
(x) In any event, a declaration by a Superior Court that a
subsequent statute is ultra vires would not wipe off the earlier
statute automatically.
18
(xi) The purchasers of land having acquired the properties in 1950s
must be held to have acquired an indefeasible right over the
same and thus the 1975 Act even to that extent was not
applicable.
Mr. Rajinder Sachar, learned senior counsel appearing on behalf of
respondents in C.A. Nos. 104-105 of 2001, on the other hand, would
contend:-
i) The 1999 Act being in the teeth of the mandamus issued by the
High Court has rightly been held to be unconstitutional in view
of the fact that nothing has been brought on record to show that
the 1999 Act was enacted by the legislature despite knowledge
that the directions issued by the High Court had attained
finality.
ii) The 1975 Act having conferred a right of restoration on the
Members of the Scheduled Tribes, both in respect of
agricultural and non-agricultural lands, the provisions of 1999
Act and in particular Section 6 thereof having confined its
operation only to agricultural land and that too with
19retrospective effect from 24th January, 1986, must be held to be
ultra vires Article 14 of the Constitution of India.
iii) The Members of the Scheduled Tribes being mostly residents of
forests and the lands restored in their favour being forest lands,
no legal infirmity was committed by the High Court in holding
that the tribals; the community being weakest of weak, should
not be deprived therefrom having regard to their constitutional
right of life as adumbrated in Article 21 of the Constitution of
India.
iv) As from the statistics furnished by the State itself it would
appear that only about 10 percent of the applicants had more
than 2 hectares of land, the right of restoration of the marginal
farmers could not have been taken away.
v) Once a statutory protection is granted to the beneficiaries, the
same could not have been withdrawn.
Mr. Verghese, learned counsel appearing on behalf of respondent
No.1 in Civil Appeal No.899 of 2001 supplementing the arguments of Mr.
Sachar urged:
20
i) That the Members of Scheduled Tribes having come under
attack by economically more advanced and politically more
powerful ethnic groups who infiltrated into tribal regions in
search of land and new economic possibilities, keeping in view
Article 46 of the Constitution of India, they were entitled to
restoration of land in terms of the judgment of the High Court
passed in O.P. No.8879 of 1988.
ii) Provisions of 1975 Act having been found to be constitutionally
valid, the accrued and vested rights of the tribals could not have
been taken away by reason of 1999 Act or otherwise.
iii) The Writ-Petitioner – association having been fighting for the
cause of the tribals for a long time, it cannot be said that they
had no locus standi to file the public interest litigation.
iv) Even the Union of India having supported the case of the
tribals, there is no reason as to why this Court should interfere
with the impugned judgment.
21
v) The 1999 Act being not a validating statute, the impugned
judgment is unassailable, particularly having regard to the
objective of 1975 Act vis-`-vis 1999 Act.
vi) It is incorrect to contend that the State before enactment of
1999 Act consulted the true representatives of the tribals.
vii) In any view of the matter as the members of the tribal
community became entitled to restoration of their land by
reason of the provisions of the 1975 Act, there was no reason as
to why the original land would not be restored to them.
The 1975 ACT
The 1975 Act was enacted by the State in terms of Entry 6 of List III
of Seventh Schedule of the Constitution of India.
Section 2 contains interpretation clauses defining the terms specified
therein.
Section 2(b) defines `immovable property’ to include standing crops
and trees but does not include growing grass.
22
`Scheduled tribe’ has been defined in Section 2(e) to mean any of the
Scheduled Tribes relating to the State as specified in the Constitution
(Scheduled Tribes) Order, 1950.
Section 2(g) defines `transfer’ as under :-
” `transfer’ , in relation to immovable property,
means an act by which immovable property, is
conveyed to any documentary or oral transaction,
whether by way of mortgage with or without
possession, lease, sale, gift or exchange, or in any
other manner, not being a testamentary disposition;
and includes a charge, `vilapanayam’, `unduruthi’,
contract relating to immovable property, mortgage,
pledge or hypothecation of crops or standing trees
on payment of consideration or otherwise,
voluntary surrender and abandonment.Explanation. – For the purposes of this clause. –
(i) “vilapanyam” means hypothecation of crops
on payment of consideration or otherwise;(ii) “unduruthi” means an assignment of the
right to collect the usufructs available or
anticipated to be available to any land
during specified term for a specified price.”Section 4 imposes restrictions on transfer by providing a non obstante
clause in terms whereof after the commencement of the Act any transfer
effected by a member of the Scheduled Tribe of immovable property
23possessed, enjoyed or owned by him to a person other than a member of a
Scheduled Tribe, without the previous consent in writing of the competent
authority, would be invalid.
Section 5 of the Act invalidated certain transfers made by tribals to
persons other than tribals after the first of January, 1970 and before
commencement of the Act :-
“5. Certain transfers to be invalid –
Notwithstanding anything to the contrary
contained in any other law for time being in force,
or in any contract, custom or usage, or in any
judgment, decree or order of any court, any
transfer of immovable property possessed, enjoyed
or owned by a member of a Scheduled Tribe to a
person other than a member of a Scheduled Tribe,
effected on or after the Ist day of January, 1960,
and before the commencement of this Act shall be
deemed to be invalid.”Under Section 6 of the 1975 Act members of the Schedule Tribes
became entitled to restoration of possession of the properties, transfers
which stood invalidated by operation of Section 4 and Section 5 of the Act.
It provided for applications to be made by the Tribals for restoration of
alienated lands to the Revenue Divisional Officer within the time prescribed
therefor. The Revenue Divisional Officer was to make enquiries and after
24being satisfied with the application of the Act was to direct restoration of
possession to the applicant.
Section 6 which is material for our purpose, inter alia, reads as under:-
“6. Reconveyance of property – (1) Where by
reasons of a transfer of immovable property which
is invalid under Section 4 or Section 5, a member
of a Scheduled Tribe has ceased or ceases to be in
possession or enjoyment thereof he shall be
entitled to the restoration of possession or
enjoyment, as the case may be of such property.(2) Any person entitled to be restored to
the possession or enjoyment of any immovable
property under sub-section (1) or any other person
on his behalf may make an application, either
orally or in writing to the Revenue Divisional
Officer within a period of one year from the date
of commencement of this Act or such further
period as may be specified by Government by
notification in the Gazette –(a) for restoration of possession, or
enjoyment, as the case may be, of such property, if
such transfer had been made; before the date of
commencement of this Act.(b) for restoration of possession or
enjoyment, as the case may be, of such property
and for the prosecution of the person who has
procured such transfer, if such transfer was made
on or after the date of commencement of this Act.”Section 11 provides for liability to pay amount.
25Section 12 provides for advancement of loan by the Government for
payment of the amount on such terms and conditions as has been laid down
under sub-sections (2) and (3) thereof.
The Act also prescribed offences and provided for penalties etc.
Section 22 contains the rule making power.
1999 ACT
The 1999 Act was published in the Kerala Gazette Extraordinary on
20th April, 1999. It was given a retrospective effect and retroactive operation
from 24th January, 1986.
`Land’ has been defined in 2(b) to mean any agricultural land.
Section 5 of the Act reads as under:-
“5. Certain transfer to be invalid –
(1) Notwithstanding anything to the contrary
contained in any other law for the time being in
force, or in any contract, custom or usage, or in
any judgment, decree or order of any court, any
transfer of land possessed, enjoyed or owned by a
member of a Scheduled Tribe to a person other
than a member of a Scheduled Tribe, effected on
or after the 1st day of January, 1960, and before the
26commencement of this Act shall be deemed to be
invalid:Provided that nothing in this section shall
render invalid any transfer of land possessed,
enjoyed or owned by a member of a Scheduled
Tribe to a person other than a member of a
Scheduled Tribe effected during the aforesaid
period and the extent of which does not exceed
two hectares.(2) Notwithstanding anything contained in sub-
section (1) or in any judgment, decree or order of
any Court or other authority, in cases where the
land involved in such transfer is used for
agricultural purposes, the transferee thereof shall
be entitled to retain in his possession the said land
upto an extent of two hectares which shall be
demarcated by the Revenue Divisional Officer by
order and in the manner as may be prescribed.”Section 6 providing for allotment of lands reads thus :-
“6. Allotment of lands.- Notwithstanding
anything contained in section 5 or in any
judgment, decree or order of any Court or other
authority, a member of a Scheduled Tribe who had
effected any transfer of land, possessed, enjoyed or
owned by him, to a person other than a member of
a Scheduled Tribe, between the 1st day of January,
1960 and the 24th day of January, 1986 and where
an application for restoration of right under
Section 6 of the Kerala Scheduled Tribes
(Restriction of Transfer of Lands and Restoration
of Alienated Lands) Act, 1975 (31 of 1975) has
been filed before publication of this Act in the
Gazette, but the possession or enjoyment thereof,
27has not been restored to him and such transfer has
been validated by the proviso to sub-section (1) of
Section 5 or the transferee thereof has been made
eligible for the retention of said land under sub-
section (2) of Section 5, shall be entitled to
restoration of equal extent of land by way of
allotment from the Government:Provided that where the extent of the land so
allotted in respect of which there is eligibility for
restoration of rights, is less than forty ares,
Government shall allot the rest of the land required
to make the total extent equal to forty ares (One
acre).”Section 8 providing for liability to pay amount reads :-
“8. Liability to pay amount.-
(1) Notwithstanding anything contained in any
other law for the time being in force, where
the possession or enjoyment of any land is
restored to a member of a Scheduled Tribe
under this Act, an amount equal to the
aggregate of the actual amount of
consideration received by such member at
the time of the transfer and an amount
determined by the competent authority for
improvements, if any, made after the
transfer and before such restoration shall be
paid by him to the person from whom
possession or enjoyment, as the case may
be, was restored, in accordance with the
rules made under this Act:28
Provided that no amount shall be
payable if the transfer was effected on or
after the commencement of this Act.(2) The amount determined by the competent
authority under sub-section (1) shall be final
and shall not be called in question in any
court.(3) The amount payable under sub-section (1)
shall be recoverable in such manner as may
be prescribed.Section 10 provides for assignment of land, which reads :-
“10. Assignment of land.-
(1) Notwithstanding anything contained in
Section 6 or in the Kerala Government Land
Assignment Act, 1960 (30 of 1960) and the
rules issued thereunder, the Government
shall assign land to the landless families of
the Scheduled Tribes in the State, an extent
not exceeding forty ares of land in the
district they reside within a period of two
years from the date of publication of this Act
in the Gazette, or such further period as may
be specified by Government by notification
in the Gazette, and in the manner as may be
prescribed.(2) Where the extent of the land in the
possession and enjoyment of any family of
the Scheduled Tribe in the State, is less than
40 Ares such family shall be entitled to get
assigned more land which is necessary to
29make the total extent of the land equal to 40
Ares.”Section 11 provides for constitution of Scheduled Tribe Rehabilitation
and Welfare Fund and utilization thereof.
Section 21 provides for power to make Rules.
Section 22 is the Repealing and Saving clause.
It reads as under:-
“22. Repeal and saving.-
(1) The Kerala Scheduled Tribes (Restriction on
Transfer of Lands and Restoration of
Alienated Lands) Act, 1975 (31 of 1975) is
hereby repealed.(2) Notwithstanding the repeal of the said Act,
all orders issued by the competent authority
or the Revenue Divisional Officer, so far as
they are not inconsistent with the provisions
of this Act shall be deemed to have been
made under the corresponding provisions of
this Act and shall continue to be in force
accordingly unless and until superseded by
anything done or any action taken under this
Act. Every proceedings pending before a
Court on a complaint under Section 14 of
the said Act shall be deemed as a proceeding
under the corresponding provisions of this
Act and shall be continued accordingly.”30
CONSTITUTIONAL VALIDITY OF 1999 ACT
LEGISLATIVE BACKDROP
The validity of 1975 Act is not in question. It, having regard to its
inclusion in the Ninth Schedule of the Constitution of India by Constitution
40th Amendment Ac, 1976 read with Article 31B which precludes an attack
to the provisions of such an enactment on the ground that it violates any
provisions of Part III of the Constitution of India, the validity thereof was
upheld by a leaned Single Judge of the Kerala High Court in Bhavani v.
State of Kerala, [1989 (1) KLT (Short Note Case No.58) at 37].
We may also notice that Jagannadha Rao, C.J. (as His Lordship then
was) in Fr. Thomas Kubukkat v. Union of India, [ 1994 (2) KLT 25 ] also
upheld the provisions of Section 1(3) of 1975 Act stating the said provision
to be conditional legislation and not a delegated legislation.
The Constitutional validity of statutes enacted for the benefit of the
members of Scheduled Tribe by some other State although not identical has
been upheld by this Court in Manchegowda and others v. State of
Karnataka and others, [(1984) 3 SCC 301], Lingappa v. State of
31Maharashtra, [(1985) 1 SCC 479]; P. Rama Reddy v. State of A.P. [ (1988)
3 SCC 433 ] and Samtha v. State of Andhra Pradesh, [ (1997) 8 SCC 191 ].
These decisions have been rendered on statutes which are not
absolutely identical. All of which are not in pari materia with the other.
However, we may notice that in Manchegowda (supra) this Court
held:-
“19. We have earlier noticed that the title which is
acquired by a transferee in the granted lands,
transferred in contravention of the prohibition
against the transfer of the granted lands, is a
voidable title which in law is liable to be defeated
through appropriate action and possession of such
granted lands transferred in breach of the condition
of prohibition could be recovered by the grantor.
The right or property which a transferee acquires
in the granted lands, is a defeasible right and the
transferee renders himself liable to lose his right or
property at the instance of the grantor. We have
further observed that by the enactment of this Act
and particularly Section 4 and Section 5 thereof,
the Legislature is seeking to defeat the defeasible
right of the transferee in such lands without the
process of a prolonged legal action with a view to
speedy resumption of such granted lands for
distribution thereof to the original grantee or their
legal representatives and in their absence to other
members of the Scheduled Castes and Scheduled
Tribes communities. In our opinion, this kind of
defeasible right of the transferee in the granted
lands cannot be considered to be property as
32contemplated in Articles 31 and 31-A. The nature
of the right of the transferee in the granted lands on
transfer of such lands in breach of the condition of
prohibition relating to such transfer, the object of
such grant and the terms thereof, also the law
governing such grants and the object and the
scheme of the present Act enacted for the benefit
of the weaker sections of our community, clearly
go to indicate that there is in this case no
deprivation of such right or property as may attract
the provisions of Articles 31 and 31-A of the
Constitution.”We are not concerned with the constitutional validity of 1975 Act.
We would at an appropriate stage deal with the matter in regard to the effect
thereof.
COLOURABLE LEGISLATION
We have noticed hereinbefore that the Division Bench of the High
Court has upheld the legislative competence of the Legislature of the State
of Kerala. We, therefore, really at pains to understand as to how the doctrine
of `Colourable Legislation’ could be invoked by the learned Judge of the
High Court.
The doctrine of `Colourable Legislation” is directly connected with
the legislative competence of the State. Whereas the 1975 Act was enacted
33in terms of Entry 6 List III of the Seventh Schedule of the Constitution of
India providing for transfer of lands; the 1999 Act was enacted in terms of
Entry 18 List II thereof. It reads as under :-
“18. Land, that is to say, right in or over land, land
tenures, including the relation of landlord and
tenant, and the collection of rents; transfer and
alienation of agricultural land ; land improvement
and agricultural loans; colonization.”The 1999 Act, thus, having confined itself to `agricultural land’,
indisputably the State Legislature only has the requisite legislative
competence therefor.
It is one thing to say that an enactment suffers from vice of colourable
legislation on the premise that it does not have legislative competence but it
is another thing to say that only because the Act was amended purporting to
nullify an earlier Act (in the words of the High Court), the same by itself
would attract the said doctrine.
For invoking the doctrine of `Colourable Legislation’ the legislature
must have transgressed the limits of its constitutional power patently,
manifestly and directly.
34
The doctrine of `Colourable Legislation’, in our opinion, has no
application in the instant case. The said doctrine is founded on legislative
competence of the State. An act of mala fide on the part of the legislature
also is beyond the province of judicial review. In fact no motive can be
attributed to the Legislature for enacting a particular statute. The question in
regard to the constitutionality of the statute must be considered keeping in
view only the provisions of the Constitution.
In K.C. Gajapathi Narayan Deo v. The State of Orissa [(1954) 1 SCR
1], this Court held:
“9. It may be made clear at the outset that the
doctrine of colourable legislation does not involve
any question of bona fides or mala fides on the part
of the legislature. The whole doctrine resolves
itself into the question of competency of a
particular legislature to enact a particular law. If
the legislature is competent to pass a particular
law, the motives which impelled it to act are really
irrelevant. On the other hand, if the legislature
lacks competency, the question of motive does not
arise at all. Whether a statute is constitutional or
not is thus always a question of power.”35
In R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills
Limited and Another [(1977) 4 SCC 98], this Court held as under:
“2. A prefatory caveat. When examining a
legislation from the angle of its vires, the Court has
to be resilient, not rigid, forward-looking, not
static, liberal, not verbal — in interpreting the
organic law of the nation. We must also remember
the constitutional proposition enunciated by the
U.S. Supreme Court in Munn v. Illinois1 viz. “that
courts do not substitute their social and economic
beliefs for the judgment of legislative bodies”.
Moreover, while trespasses will not be forgiven, a
presumption of constitutionality must colour
judicial construction. These factors, recognised by
our Court, are essential to the modus vivendi
between the judicial and legislative branches of the
State, both working beneath the canopy of the
Constitution.*** *** ***
13. Bearing in mind the quintessential aspects of
the rival contentions, let us stop and take stock.
The facts of the case are plain. The professed
object of the law is clear. The motive of the
legislature is irrelevant to castigate an Act as a
colourable device. The interdict on public mischief
and the insurance of consumer interests against
likely, albeit, unwitting or “ex abundanti cautela”
excesses in the working of a statute are not merely
an ancillary power but surely a necessary
obligation of a social welfare state. One potent
prohibitory process for this consummation is to
penalize the trader by casting a no-fault or absolute
liability to “cough up” to the State the total
36“unjust” takings snapped up and retained by him
“by way of tax” where tax is not so due from him,
apart from other punitive impositions to deter and
to sober the merchants whose arts of dealing with
customers may include “many a little makes a
mickle’. If these steps in reasoning have the
necessary nexus with the power to tax under Entry
54 List II, it passes one’s comprehension how the
impugned legislation can be denounced as
exceeding legislative competence or as a
“colourable device” or as “supplementary, not
complementary’.”[See also Dharam Dutt and others v. Union of India, [(2004) 1 SCC
712].”
The principles of determining the constitutionality of statute has been
stated in Gujarat Ambuja Cements Ltd. v. Union of India, [(2005) 4 SCC
214 ] thus:-
“28. Having determined the parameters of the
two legislative entries the principles for
determining the constitutionality of a statute come
into play. These principles may briefly be
summarised thus:(a) The substance of the impugned Act must
be looked at to determine whether it is in pith
and substance within a particular entry
whatever its ancillary effect may be [Prafulla
Kumar Mukherjee v. Bank of Commerce Ltd.,
AIR at p. 65, A.S. Krishna v. State of Madras,
State of Rajasthan v. G. Chawla, Katra
Educational Society v. State of U.P., D.C.37
Johar & Sons (P) Ltd. v. STO and Kannan
Devan Hills Produce v. State of Kerala].(b) Where the encroachment is ostensibly
ancillary but in truth beyond the competence of
the enacting authority, the statute will be a
colourable piece of legislation and
constitutionally invalid (A.S. Krishna v. State
of Madras, A.B. Abdul Kadir v. State of Kerala,
SCC at p. 232 and Federation of Hotel &
Restaurant Assn. of India v. Union of India,
SCC at p. 651). If the statute is legislatively
competent the enquiry into the motive which
persuaded Parliament or the State Legislature
into passing the Act is irrelevant (Dharam Dutt
v. Union of India).(c) Apart from passing the test of legislative
competency, the Act must be otherwise legally
valid and would also have to pass the test of
constitutionality in the sense that it cannot be in
violation of the provisions of the Constitution
nor can it operate extraterritorially. (See
Poppatlal Shah v. State of Madras.)“Has the legislature of the State of Kerala transgressed the limitations
of its constitutional power, as has been held by the High Court, is the
question?
We have pointed out heretobefore that the doctrine of colourable
legislation is strictly confined to the question of legislative competence of
the State Legislature to enact a statute. Once it was opined by the High
38Court that having regard to Entry 51, List II of the Seventh Schedule of the
Constitution of India, the Legislature of the State of Kerala had the requisite
legislative competence to enact the 1999 Act, that should have been held to
be the end of the matter. The High Court could not have, in our respectful
opinion, entered into the said question through a side-door so as to hold that
the transgression of the limitations of constitutional power may be disguised,
covert or indirect.
The High Court, in our opinion, again with utmost respect, has
committed a fundamental error in failing to keep a distinction in mind in
regard to the power of a law making authority which is of a qualified
character and the power granted to a legislative authority which is absolutely
without any limitation and restriction, being plenary in character.
A statute in view of the decision of this Court in Gujarat Ambuja
Cements Ltd. (supra), in the event of it being held within the ambit of the
legislative competence of the State, could be declared ultra vires only on the
premise that it is violative of the provisions of Part III of the Constitution of
India or any other provisions but not on the ground of colourable exercise of
power or mala fide on the part of the legislature. The object, purpose or
39design referred to by the High Court should be taken into consideration for
the purpose of examining its constitutionality on the touchstone of the
provisions of Part III of the Constitution of India and not otherwise. In that
view of the matter, the High Court committed a serious error in relying upon
Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving
Company Ltd. and Others [AIR 1954 SC 119] and Jagannath Baksh Singh v.
State of U.P. [AIR 1962 SC 1563], which did not deal with the question of
legislative competence of the legislature of a State, as was the question
before the High Court.
No material was placed before the High Court to establish that the
1999 Act was confiscatory in nature.
It is one thing to say that a citizen of India having been conferred with
a right on lands by reason of a statutory provision, has been deprived
therefrom without payment of any compensation and, thus, the same would
be violative of Article 300A of the Constitution of India, but, it is another
thing to say that on that ground alone the legislation should be held to be a
colourable one.
40
We have adverted to the statement of Objects and Reasons of the 1999
Act. The legislature had a broad object in mind. Whether the Act stands the
scrutiny of limitations of the State’s power so as to achieve its object and
purpose is one question, but, it is another question that while doing so it has
adopted a device and a cloak to confiscate the property of the citizen taxed
as was the case in K.T. Moopil Nair v. State of Kerala [AIR 1961 SC 552].
The High Court in its judgment has referred to Shankaranarayana v.
State of Mysore [AIR 1966 SC 1571]. But, in our opinion, and with utmost
respect, it again failed to apply the principles laid down therein correctly.
Therein itself the court had noted that if the legislature is competent to pass a
particular law, the motives which impel it to pass the same become really
irrelevant.
The High Court furthermore committed a serious error insofar as it
made an incidental observation that the tribals who enjoy the protection of
Constitution of India and sought to be protected by the 1975 Act could not
have been denied the benefits under the 1999 Act, which in our opinion, was
not a relevant question.
41
The provisions of the Constitution in this behalf are enabling in
nature. When a constitutionality of an enactment comes to be questioned,
the superior courts are required to pose unto themselves the right question.
The question, in our opinion, should have been whether the statute is
valid having been enacted to achieve the constitutional goal set out not only
in Part III of the Constitution of India but also Part IV and IVA thereof.
The rights conferred upon the class of persons including the protected
class, in terms of 1975 Act, were statutory in nature. They cannot be
categorized as plainly constitutional rights. It is one thing to say that some
rights are constitutional in nature/origin being part of the expansive regime
of Article 21, but, it would not be correct to raise the same to the exalted
status of constitutional rights. A right which primarily flows from a statute,
cannot claim its constitutional pedigree to become a constitutional threshold,
against which constitutionality of a statute can be tested. It is trite that a
right which may be conferred by a statute can also be taken away by another.
It is also a trite law that the State is entitled to change its legislative
policy having regard to the ground realities and changing societal condition.
42In fact, the legislature is expected to take steps for enacting a new statute or
amending the same so as to keep pace with the changing societal condition
as well as taking into consideration the development of law, both domestic
and international.
The High Court, in our opinion, furthermore committed a serious error
in opining that although the legislature had the legislative competence to
enact Act 12 of 1999, but nevertheless, proviso to Sections 5(1) and 5(2)
thereof would be held to be colourable. The High Court should have
examined the question of their constitutionality on the touchstone of Articles
14 and 21 of the Constitution of India and not on the premise that the said
provisions are colourable in nature.
PRESIDENTIAL ASSENT
It was held by the High Court that Presidential Assent was necessary
and the 1999 Act was enacted to by-pass the mandatory requirement of the
President’s Assent. In determining the said issue, it again ought to have
posed unto itself the right question, viz., whether the Presidential Assent was
necessary for enacting a statute which came within the purview of List II of
43the Seventh Schedule of the Constitution of India. The answer thereto must
be rendered in negative.
The 1975 Act dealt with both agricultural and non-agricultural lands.
Transfer of land comes within the purview of Entry 6, List III of the Seventh
Schedule of the Constitution of India. There exists a Parliamentary Act in
that behalf, as for example, Transfer of Property Act. Only because the
1975 Act could be held to be in conflict with the provisions of the Transfer
of Property Act, the Presidential Assent was necessary having regard to
Clause (2) of Article 254 of the Constitution of India but once the said
statute is repealed and in its place a new Act is brought on the statute book,
which comes strictly within the purview of Entry 49, List II of the Seventh
Schedule of the Constitution of India, no Presidential Assent would be
necessary. Presidential Assent would be necessary for the purpose of
amendment of the Act and not for enacting a separate statute which came
within the purview of a different entry and a different List.
It is furthermore well-known that Article 254 of the Constitution of
India would be attracted only in a case where two statutes are enacted under
44the Concurrent List, viz., one by the State Legislature and the other by the
Parliament of India, and not in any other case.
EFFECT OF ISSUANCE OF A WRIT OF MANDAMUS
Before adverting to the said question, we may notice the background
facts leading to the issuance of a writ of mandamus.
Admittedly the State was not implementing the provisions of the 1975
Act. Dr. P. Nalla Thampy Thera filed O.P. No.8879 of 1988 for direction
upon the State and its officers to implement the provisions of the 1975 Act.
The learned Additional Advocate General appearing for the State gave an
undertaking to the effect that “utmost steps would be taken for the disposal
of the applications and that the Act would be enforced in all its rigour”, on
the basis whereof the Original Petition was allowed on 15th October, 1993
directing the State to give directions to the Authorities under the Act to
dispose of the applications pending before them within six months of that
date.
As the State had taken extension of time by an order dated 13th
August, 1996, a learned Single Judge, inter alia, directed the Revenue
45Divisional Officers to cause delivery of the properties covered by orders for
restoration against which no appeals were pending and in which no
compensation was payable, forthwith and in any event within six weeks
from that date.
A writ appeal was preferred thereagainst and an interim order of stay
was passed on 11th October, 1996. The matter was referred to a Full Bench.
We have noticed heretobefore the order dated 25th November, 1998.
We have also noticed the order of the Full Bench dated 6th January,
1999.
The High Court was, thus, aware of the impending legislation. The
extension of time was subject to a new legislation.
The 1975 Act was a conditional legislation. It came into force with
effect from 24th January, 1986. Directions were issued only in regard to
implementation of the statutory provisions It was not a case where by
reason of issuance of writ of mandamus, certain benefits were conferred on a
person or a group of persons.
46
In Madan Mohan Pathak (supra), the Calcutta High Court had issued a
writ of mandamus directing the Life Insurance Corporation to pay annual
cash bonus to Class III and Class IV employees for years April 1, 1975 to
March 31, 1976 along with their salary for the month of April, 1976 as
provided by the Settlement. The said decision attained finality as Letters
Patent Appeal preferred thereagainst had been withdrawn by the Life
Insurance Corporation. In the meantime a Parliamentary Act, known as Life
Insurance Corporation (Modification of Settlement) Act, 1976 came into
force.
In the said factual backgrounds, it was held :-
“7. But before we proceed further, it would be
convenient at this stage to refer to one other
contention of the petitioner based on the judgment
of the Calcutta High Court in Writ Petition 371 of
1976. The contention was that since the Calcutta
High Court had by its judgment dated May 21,
1976 issued a writ of mandamus directing the Life
Insurance Corporation to pay annual cash bonus to
Class III and Class IV employees for the year
April 1, 1975 to March 31, 1976 along with their
salary for the month of April, 1976 as provided by
the Settlement and this judgment had become final
by reason of withdrawal of the Letters Patent
Appeal preferred against it, the Life Insurance
Corporation was bound to obey the writ of
47mandamus and to pay annual cash bonus for the
year April 1, 1975 to March 31, 1976 in
accordance with the terms of clause 8(ii) of the
Settlement. It is, no doubt, true, said the
petitioners, that the impugned Act, if valid, struck
at clause 8(ii) of the Settlement and rendered it
ineffective and without force with effect from
April 1, 1975 but it did not have the effect of
absolving the Life Insurance Corporation from its
obligation to carry out the writ of mandamus.There was, according to the petitioners, nothing in
the impugned Act which set at naught the effect of
the judgment of the Calcutta High Court or the
binding character of the writ of mandamus issued
against the Life Insurance Corporation. This
contention of the petitioners requires serious
consideration and we are inclined to accept it.1. It is significant to note that there was no
reference to the judgment of the Calcutta
High Court in the Statement of Objects and
Reasons, nor any non obstante clause
referring to a judgment of a Court in Section
3 of the impugned Act. The attention of
Parliament does not appear to have been
drawn to the fact that the Calcutta High
Court has already issued a writ of
mandamus commanding the Life Insurance
Corporation to pay the amount of bonus for
the year April 1, 1975 to March 31, 1976. It
appears that unfortunately the judgment of
the Calcutta High Court remained almost
unnoticed and the impugned Act was passed
in ignorance of that judgment. Section 3 of
the impugned Act provided that the
provisions of the Settlement insofar as they
relate to payment of annual cash bonus to
Class III and Class IV employees shall not
have any force or effect and shall not be
48deemed to have had any force or effect from
April 1, 1975. But the writ of mandamus
issued by the Calcutta High Court directing
the Life Insurance Corporation to pay the
amount of bonus for the year April 1, 1975
to March 31, 1976 remained untouched by
the impugned Act. So far as the right of
Class III and Class IV employees to annual
cash bonus for the year April 1, 1975 to
March 31, 1976 was concerned, it became
crystallised in the judgment and thereafter
they became entitled to enforce the writ of
mandamus granted by the judgment and not
any right to annual cash bonus under the
Settlement. This right under the judgment
was not sought to be taken away by the
impugned Act. The judgment continued to
subsist and the Life Insurance Corporation
was bound to pay annual cash bonus to
Class III and Class IV employees for the
year April 1, 1975 to March 31, 1976 in
obedience to the writ of mandamus. The
error committed by the Life Insurance
Corporation was that it withdrew the Letters
Patent Appeal and allowed the judgment of
the learned Single Judge to become final. By
the time the Letters Patent Appeal came up
for hearing, the impugned Act had already
come into force and the Life Insurance
Corporation could, therefore, have
successfully contended in the Letters Patent
Appeal that, since the Settlement, insofar as
it provided for payment of annual cash
bonus, was annihilated by the impugned Act
with effect from April 1, 1975, Class III and
Class IV employees were not entitled to
annual cash bonus for the year April 1, 1975
to March 31, 1976 and hence no writ of
mandamus could issue directing the Life
49Insurance Corporation to make payment of
such bonus. If such contention had been
raised, there is little doubt, subject of course
to any constitutional challenge to the
validity of the impugned Act, that the
judgment of the learned Single Judge would
have been upturned and the writ petition
dismissed. But on account of some
inexplicable reason, which is difficult to
appreciate, the Life Insurance Corporation
did not press the Letters Patent Appeal and
the result was that the judgment of the
learned Single Judge granting writ of
mandamus became final and binding on the
parties. It is difficult to see how in these
circumstances the Life Insurance
Corporation could claim to be absolved from
the obligation imposed by the judgment to
carry out the writ of mandamus by relying
on the impugned Act.”.Madan Mohan Pathak (supra) has been followed in P. Venugopal v.
Union of India, [ (2008) 5 SCC 1 ], wherein it was opined :-
“As in Mohan Pathak case (para 8), as quoted
hereinabove, in the instant case also Parliament
does not seem to have been apprised about the
pendency of the proceedings before the Delhi High
Court and this Court and declaration made and
directions issued by the Delhi High Court at
different stages. In the impugned amendment,
there is no non obstante clause. The impugned
amendment introducing the proviso, therefore,
cannot be treated to be a validating Act.”50
A distinction must be made between issuance of writ of mandamus
conferring right upon a person or class of persons and the one directing
implementation of the Act. However, in this case while the learned Single
Judge of the High Court issued a direction that the applications filed by the
members of the Scheduled Tribes should be determined by the Revenue
Authorities in terms of the provisions of the 1975 Act; the same, in our
opinion, did not mean that the High Court itself had issued a writ of
mandamus directing restoration of the lands in question.
As in most of the cases members of the Scheduled Tribes have not
been paid compensation through their vendees in terms of the provisions of
1975 Act. They did not attain finality. If that be so, in our opinion question
of invoking the decision of Madan Mohan Pathak (supra) in the factual
matrix involved herein does not arise.
Further, it is one thing to say that a writ of mandamus shall be obeyed
despite passing of a subsequent Act as it had attained finality or that it had
not been brought to the notice of the Legislature, but it is another thing to
say that no writ of mandamus was issued conferring rights upon the parties.
Directions to implement the provisions of the Act by itself did not confer
51any right upon the parties. The lis has to be adjudicated upon. It did not
attain finality in that sense of the term.
We may notice that scope of Madan Mohan Pathak (supra) has been
explained in Indian Aluminium Co. (supra), stating :-
“49. In Madan Mohan Pathak v. Union of India,
on the basis of a settlement, bonus became payable
by the LIC to its Class III and Class IV employees.
In a writ, a Single Judge of the Calcutta High
Court issued mandamus directing payment of
bonus as provided in the settlement. During the
pendency of letters patent appeal, LIC
(Modification of Settlement) Act, 1976 was
enacted denying bonus payable to the employees.
The appeal was withdrawn. The validity of 1976
Act was challenged in this Court under Article 32
of the Constitution. A Bench of seven Judges had
held that Parliament was not aware of the
mandamus issued by the court and it was declared
that the 1976 Act was void and writ of mandamus
was issued to obey the mandamus by
implementing or enforcing the provisions of that
Act and directed payment of bonus in terms of the
settlement. It was pointed out that there was no
reference to the judgment of the High Court in the
Statement of Objects and Reasons, nor any non
obstante clause referring to the judgment of the
Court was made in Section 3 of the Act. Attention
of Parliament was not drawn to the mandamus
issued by the High Court. When the mandamus
issued by the High Court became final, the 1976
Act was held invalid. Shri R.F. Nariman laid
special emphasis on the observations of learned
Chief Justice Beg who in a separate judgment had
pointed out that the basis of the mandamus issued
52by the court could not be taken away by indirect
fashion as observed at p. 743, C to F. From the
observations made by Bhagwati, J. per majority, it
is clear that this Court did not intend to lay down
that Parliament, under no circumstance, has power
to amend the law removing the vice pointed out by
the court. Equally, the observation of Chief Justice
Beg is to be understood in the context that as long
as the effect of mandamus issued by the court is
not legally and constitutionally made ineffective,
the State is bound to obey the directions. Thus
understood, it is unexceptionable. But it does not
mean that the learned Chief Justice intended to lay
down the law that mandamus issued by court
cannot at all be made ineffective by a valid law
made by the legislature, removing the defect
pointed out by the court.”Madan Mohan Pathak (supra), thus, stood explained in Indian
Aluminium Co. v. State of Kerala (supra) to be understood in the context
that as long as the effect of mandamus issued by the court is not legally and
constitutionally made ineffective, the State is bound to obey the directions.
Yet again, in National Agricultural Coop. Marketing Federation of
India Ltd. v. Union of India, [(2003) 5 SCC 23], explaining Madan Mohan
Pathak, it has been held :-
“26. The decision is an authority for the principle
that a judicial decision which has become final
inter partes, cannot be set at naught by legislative
action, a principle that is well entrenched.
Therefore, if, as has been contended by the
53appellant, the High Court in 1981 had in
proceedings between the appellant and the
Revenue held that the appellant was entitled to the
benefit of the deduction under Section 80-
P(2)(a)(iii) of the Act, and the Revenue has not
impugned the High Court’s decision, that decision
binds the parties for the assessment years in
question and cannot be reopened because of the
1998 Amendment. This principle, however, does
not in any way detract from the principle that the
legislature may “cure” the statute so that it more
correctly represents its intention. Such curative
legislation does not in fact touch the validity of a
judicial decision which may have attained finality
albeit under the pre-amended law.”In Mylapore Club v. State of T.N. [ (2005) 12 SCC 752 ], P.K.
Balasubramanyan, J opined :-
“The power to legislate is a plenary power vested
in the legislature and unless those who challenge
the legislation clearly establish that their
fundamental rights under the Constitution are
affected or that the legislature lacked legislative
competence, they would not succeed in their
challenge to the enactment brought forward in the
wisdom of the legislature. Conferment of a right to
claim the benefit of a statute, being not a vested
right, the same could be withdrawn by the
legislature which made the enactment. It could not
be said that the Amendment Act lacked either
legislative competence or that it is
unconstitutional.”54
Where a new Act is enacted removing the very basis on which the
High Court made a preceding Act invalid; it matters not whether the same is
not termed as a validating statute or not. In this case, however, in our
opinion, such a question does not arise as the 1975 Act was not declared to
be invalid.
In Bakhtawar Trust v. M.D. Narayan, [(2003) 5 SCC 298] this Court
held :-“In order to validate an executive action or any
provision of a statute, it is not sufficient for the
legislature to declare that a judicial pronouncement
given by a court of law would not be binding, as
the legislature does not possess that power. A
decision of a court of law has a binding effect
unless the very basis upon which it is given is so
altered that the said decision would not have been
given in the changed circumstances.”The reason is not far to seek. The Legislature can not over-rule a
judgment but it can remove the basis on which the judgment has been
rendered.
The Act was implemented both in respect of those who had two acres
of land and those who had more.
55
The 1999 Act removes the basis for passing of the judgments so far as
the applications for restoration filed by Members of the Scheduled Tribes in
regard to their lands which was less than 2 hectares is concerned.
It provides that the term `land’ would mean `only agricultural land’
and the application for restoration shall lie only in case where the extent of
the land exceed two hectares. (See Section 2(b) and Section 5 of 1999 Act).
Admittedly, the 1999 Act was made effective retrospectively from 24th
day of January, 1986. It contains a Repeal and Savings clause. In that view
of the matter, in our opinion, it was not necessary to term the statute as a
validating statute containing a non-obstante clause.
It is difficult to conceive, having regard to the orders issued by the
Full Bench, that the Legislature were not aware of the orders passed by the
High Court. In any event the Full Bench of the High Court has stated that
the directions issued by it would be subject to the new enactment.
We, therefore, are of the opinion that Madan Mohan Pathak (supra)
has no application to the present cases.
56
VESTED RIGHT VIS-@-VIS ARTICLE 14
A vested right has been defined in P. Ramanatha Aiyar’s Advanced
Law Lexicon, 3rd edition, page 4888, in the following terms:
“Vested rights. Property rights.
The expression `vested right’ means an absolute or
indefeasible right. It is an immediate fixed right in
present or future enjoyment in respect of property.
The claim based on the vested right or settled
expectation to obtain sanction cannot be set up
against statutory provisions. It cannot be
countenanced against public interest and
conveniences which are sought to be served.”In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector
& ETIO [(2007) 5 SCC 447], this Court held:“106. Furthermore, exemption from payment of
tax in favour of the appellants herein would also
constitute a right or privilege. The expression
“privilege” has a wider meaning than right. A right
may be a vested right or an accrued right or an
acquired right. Nature of such a right would
depend upon and also vary from statute to statute.
It has been so held by this Court, while construing
Section 6 of the General Clauses Act, in
Gurcharan Singh Baldev Singh v. Yashwant Singh
in the following terms: (SCC p. 432, para 3)“The objective of the provision is to ensure
protection of any right or privilege acquired under
the repealed Act. The only exception to it is
legislative intention to the contrary. That is, the
repealing Act may expressly provide or it may
impliedly provide against continuance of such
right, obligation or liability.”57
[See also Kusumam Hotels Private Limited v. Kerala State Electricity
Board and Others (2008) 13 SCC 213 and State of Punjab and Others v.
Bhajan Kaur and Others (2008) 12 SCC 112]
The question as to whether the members of Scheduled Tribe had a
vested right or not, may now be considered. The properties were sold by
them to persons who were not the members of the Schedule Tribes long
back. Such transactions, when entered into, were valid being not barred by
any statute. The vendees, thus, acquired indefeasible right. They, however,
were invalidated by Section 5 of the 1975 Act. The consequence of
rendition of such transactions as invalid was to restore the lands back to
possession of the tribals wherefor certain procedural requirements were to be
complied with. The 1975 Act, however, was only brought into force in
1986, that too with retrospective effect from 1982. In the meanwhile, many
purchasers again acquired prescriptive rights. It was furthermore made
effective only when the Rules were framed in 1986.
The right of restoration was of two kinds, one, in respect of
agricultural land and the other in regard to non-agricultural land. We intend
to deal with them separately. Indisputably, despite the 1975 Act having
58been brought in force and the Rules having been framed for the effective
implementation thereof, the State and the Revenue Officers took no steps for
implementation therefor for a long time. The process started only when a
writ of mandamus was issued by the High Court. For its implementation,
the substance of the proceedings has been noticed by us heretobefore. The
1975 Act and the 1986 Rules provided for several stages. The procedure
laid down in the 1986 Rules consists of filing of application for restoration,
calling for objections, determination of the issues, filing of appeals. Once
that stage reached finality, the applicants are required to pay compensation
to the land holder in terms of Section 9 of the 1975 Act which was a
condition precedent therefor.
The 1975 Act contemplated raising of loan from the government by
the members of the Scheduled Tribe, subject to the conditions laid down in
the Rules. The procedure for grant of loan and consequent payment of
compensation to the owners of land was a pre-condition for actual
restoration thereof.
When, thus, loans are raised and amount of compensation is paid to
the transferees, in our opinion, only then the vested right for getting back
possession of the lands gets accrued and not prior thereto. We say so
59because the 1975 Act itself provides for a statute depriving the land holders
from a right of property, which is otherwise protected by reason of Article
300-A of the Constitution of India. It is also a human right. [See Vimlaben
Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649
and Union of India & Ors. v. M/s. Martin Lottery Agencies Ltd. [(2009 4
SCALE 34]
The provisions of the 1975 Act, therefore, deserve strict construction.
Although we are not required to consider the validity of the 1975 Act stricto
sensu, we may place on record that even the decisions of this Court have
declared similar provisions to be intra vires.
Before, however, we advert thereto, we would like to make some
general observations.
No territory in the State of Kerala has been declared as Scheduled
Area within the meaning of Article 244 read with the Fifth Schedule of the
Constitution of India. A distinction, thus, must be borne in mind in regard to
the enactments which deal with tribal areas and which do not. If a law (e.g.
Scheduled Area Regulation Act) deals with the tribal areas, the same amends
60provisions of the other Acts including the Limitation Act, 1963. If a person
is in possession of a land, which he had obtained by reason of a valid
transaction as it then was, which was subsequently sought to be invalidated,
he would ordinarily receive protection by reason of doctrine of prescription
provided for under the Limitation Act, by reason whereof if he has been in
possession thereof for a period of more than 12 years, he would have
acquired an indefeasible right thereto despite the fact that the transaction has
been invalidated by a later Act. It was so held in Manchegowda (supra).
Therein, a distinction was made between a defeasible right and an
indefeasible right and this Court was concerned with a transaction which
was voidable in nature.
It is, however, not a case where a transfer has been made in
contravention of the terms of the grant or any law, regulation or rule
governing such grant which could be legally avoided or possession thereof
could be recovered through process of law. Therein, this Court clearly held:
“24. Though we have come to the conclusion
that the Act is valid, yet, in our opinion, we have to
make certain aspects clear. Granted lands which
had been transferred after the expiry of the period
of prohibition do not come within the purview of
the Act, and cannot be proceeded against under the
provisions of this Act. The provisions of the Act
61make this position clear, as Sections 4 and 5
become applicable only when granted lands are
transferred in breach of the condition relating to
prohibition on transfer of such granted lands.Granted lands transferred before the
commencement of the Act and not in
contravention of prohibition on transfer are clearly
beyond the scope and purview of the present Act.Also in case where granted lands had been
transferred before the commencement of the Act in
violation of the condition regarding prohibition on
such transfer and the transferee who had initially
acquired only a voidable title in such granted lands
had perfected his title in the granted lands by
prescription by long and continuous enjoyment
thereof in accordance with law before the
commencement of the Act, such granted lands
would also not come within the purview of the
present Act, as the title of such transferees to the
granted lands has been perfected before the
commencement of the Act. Since at the date of the
commencement of the Act the title of such
transferees had ceased to be voidable by reason of
acquisition of prescriptive rights on account of
long and continued user for the requisite period,
the title of such transferees could not be rendered
void by virtue of the provisions of the Act without
violating the constitutional guarantee. We must,
therefore, read down the provisions of the Act by
holding that the Act will apply to transfers of
granted lands made in breach of the condition
imposing prohibition on transfer of granted lands
only in those cases where the title acquired by the
transferee was still voidable at the date of the
commencement of the Act and had not lost its
defeasible character at the date when the Act came
into force. Transferees of granted lands having a
perfected and not a voidable title at the
commencement of the Act must be held to be
62outside the pale of the provisions of the Act.
Section 4 of the Act must be so construed as not to
have the effect of rendering void the title of any
transferee which was not voidable at the date of
the commencement of the Act.”In Lingappa (supra), this Court held:
“26. The impugned Act in its true nature and
character is a law relating to transfers and
alienations of agricultural lands by members of
Scheduled Tribes in the State to persons not
belonging to Scheduled Tribes. Such a law does
not fall within Entries 6 and 7 in List III but is
within Entry 18 in List II. We may here set out
Entries 6 and 7 in List III:“6. Transfer of property other than agricultural
land; registration of deeds and documents.7. Contracts, including partnership, agency,
contracts of carriage, and other special forms of
contracts, but not including contracts relating to
agricultural lands.”The words “other than agricultural land” in Entry 6
and the words “but not including contracts relating
to agricultural land” in Entry 7 in List III have the
effect of delimiting the legislative power of the
Union to make a law with respect to transfers and
alienations of agricultural lands or with respect to
contracts in relation thereto. The power to legislate
cannot be denied to the State on the ground that the
provisions of Sections 3(1) and 4 which provide
for annulment of transfers by tribals incidentally
trench upon the existing law, namely, the Transfer
of Property Act, 1882 or a law made by Parliament
viz. the Specific Relief Act, 1963. The power of
the State Legislature to make a law with respect to
63transfer and alienation of agricultural land under
Entry 18 in List II carries with it not only a power
to make a law placing restrictions on transfers and
alienations of such lands including a prohibition
thereof, but also the power to make a law to reopen
such transfers and alienations. Such a law was
clearly within the legislative competence of the
State Legislature being relatable to Entry 18 in List
II of the Seventh Schedule.”It was observed:
“…That apart, members of Scheduled Tribes i.e.
tribals who are mostly aboriginals constitute a
distinct class who need a special protection of the
State. Further, the question as to how far and by
what stages such laws are to be implemented
involves a matter of policy and therefore beyond
the domain of the courts. Secondly, the Act no
doubt makes a distinction between a non-tribal
transferee who had diverted the lands obtained by
him under a transfer from a tribal during the period
from April 1, 1957 to July 6, 1974 and had put
such lands to non-agricultural purpose, and other
non-tribal transferees who got into possession
under transfers effected by tribals during the same
period but continued to use the lands for
agricultural purposes. There is no question of any
differential treatment between two classes of
persons equally situate. When a part of the land is
diverted to a non-agricultural purpose viz. the
construction of a dwelling house or the setting up
of an industry, the State Legislature obviously
could not have made a law for annulment of
transfer of such lands by tribals under Entry 18 in
List II as the lands having been diverted to non-64
agricultural purposes ceased to be agricultural
lands. In the case of such non-agricultural land, if
the State Legislature made such a law it would not
be effective unless it was reserved for the assent of
the President and received such assent.”Therein, thus, this Court found that Sub-section (1) of Section 3 of
Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 made
detailed provision to strike a balance between the mutual rights and
obligations of the parties, upon making of an order for restoration of such
land to the members of the Scheduled Tribes.
It was furthermore held that the said Act having been placed in the
Ninth Schedule of the Constitution of India, the validity thereof could not
have been challenged for contravention of Articles 14, 19(1)(f) or Article 31
of the Constitution of India.
Yet again in P. Rami Reddy and Others v. State of Andhra Pradesh
and Others [(1988) 3 SCC 433], there existed a law prohibiting transfer in
the agency tract areas, viz., the Agency Tracts Interest and Land Transfer
Act, 1917. Those areas were notified as Scheduled Areas after coming into
force of the Constitution by reason of the Scheduled Area (Part `A’ States)
65Order, 1950. By reason of the power conferred on the Governor of the State
by Para 5(2) of the Fifth Schedule, the regulations named as A.P. Scheduled
Areas Land Transfer Regulation, 1959 were made. In the aforementioned
backdrop, it was opined:
“19…The community cannot shut its eyes to the
fact that the competition between the “tribals” and
the “non-tribals” partakes of the character of a race
between a handicapped one-legged person and an
able-bodied two-legged person. True, transfer by
“non-tribals” to “non-tribals” would not diminish
the pool. It would maintain status quo. But is it
sufficient or fair enough to freeze the exploitative
deprivation of the “tribals” and thereby legalize
and perpetuate the past wrong instead of effacing
the same? As a matter of fact it would be unjust,
unfair and highly unreasonable merely to freeze
the situation instead of reversing the injustice and
restoring the status quo ante. The provisions
merely command that if a land holder voluntarily
and on his own volition is desirous of alienating
the land, he may do so only in favour of a “tribal”.
It would be adding insult to injury to impose such
a disability only on the tribals (the victims of
oppression and exploitation themselves) and
discriminate against them in this regard whilst
leaving the “non-tribals” to thrive on the fruits of
their exploitation at the cost of “tribals”. The “non-
tribal” economic exploiters cannot be installed on
the pedestal of immunity and accorded a privileged
treatment by permitting them to transfer the lands
and structures, if any, raised on such lands, to
“non-tribals” and make profits at the cost of the
66tribals. It would not only tantamount to
perpetuating the exploitation and injustice, it
would tantamount to placing premium on the
exploitation and injustice perpetrated by the non-
tribals. Thus it would be the height of
unreasonableness to impose the disability only on
the tribals whilst leaving out the “non-tribals”. It
would also be counterproductive to do so.”However, in K.T. Huchegowda v. Dy. Commissioner [(1994) 3 SCC
536], this Court held:
“8. On a plain reading, granted land will mean, any
land granted by the Government to a person, who
is a member of the Scheduled Castes or Scheduled
Tribes which includes land allotted to such
persons. Grant may be of different types; it may be
by absolute transfer of the interest of the State
Government to the person concerned; it may be
only by transfer of the possession of the land, by
way of allotment, without conveying the title over
such land of the State Government. If by grant, the
transferee has acquired absolute title to the land in
question from the State Government, then subject
to protection provided by the different provisions
of the Act, he will be subject to the same period of
limitation as is prescribed for other citizens by the
provisions of the Limitation Act, in respect of
extinguishment of title over land by adverse
possession. On the other hand, if the land has been
allotted by way of grant and the title remains with
the State Government, then to extinguish the title
that has remained of the State Government by
adverse possession, by a transferee on the basis of
an alienation made in his favour by an allottee, the
67period of limitation shall be 30 years. Incidentally,
it may be mentioned that some of the States in
order to protect the members of the Scheduled
Tribes from being dispossessed from the lands
which belong to them and of which they are
absolute owners, for purpose of extinguishment of
their title by adverse possession, have prescribed
special period of limitation, saying that it shall be
30 years. In Bihar, vide Regulation No. 1 of 1969,
in Article 65 of the Limitation Act, it has been
prescribed that it would be 30 years in respect of
immovable property belonging to a member of the
Scheduled Tribes as specified in Part III to the
Schedule to the Constitution (Scheduled Tribes)
Order, 1950.9. There is no dispute that so far as the Act with
which we are concerned, no special period of
limitation has been prescribed, in respect of lands
which have been granted to the members of the
Scheduled Castes and Scheduled Tribes with
absolute ownership by the State Government. In
this background, when this Court in the case of
Sunkara Rajayalakshmi v. State of Karnataka said
that the period of limitation, which has to be taken
into account for the purpose of determining,
whether the title has been perfected by
prescription, shall be that which runs against the
State Government and therefore it would be 30
years and not 12 years, has to be read in context
with the lands, the ownership whereof, has not
been transferred absolutely, to the members of the
Scheduled Castes and Scheduled Tribes; the lands
having been only allotted to them, the title
remaining with the State Government. The cases
where the transfer by the State Government by
way of grant has been absolute, then unless there is
an amendment so far the period of limitation is
concerned, it is not possible to apply the special
limitation of 30 years, so far such grantees are
68concerned, when the question to be determined, is
as to whether a transferee in contravention of the
terms of the grant, has perfected his title by
remaining in continuous and adverse possession.
The transferee, who has acquired the land from the
grantee, in contravention of the terms of the grant
shall perfect his title by adverse possession by
completing the period of 12 years. When this
Court said in its main judgment, in the case of
Manchegowda v. State of Karnataka that in cases
where granted lands had been transferred before
the commencement of the Act in violation of the
condition, regarding prohibition on such transfer
and the transferee who had initially acquired only a
voidable title, in such granted lands had perfected
his title in the granted lands by prescription by
long and continuous enjoyment thereof in
accordance with law before the commencement of
the Act, has to be read, for purpose of determining
the period of limitation in respect of lands granted
with absolute ownership, to mean 12 years and
grant by way of allotment without transfer of the
ownership in favour of the grantee, to mean 30
years.”[See also Papaiah v. State of Karnataka (1996) 10 SCC 533]
The statutory provisions, therefore, must be interpreted in the light of
the constitutional provisions.
The decisions of this Court, therefore, are clear and unambiguous. In
a case involving members of the Scheduled Tribe living in Scheduled Area
the period of limitation can be extended, but it is not permissible in respect
69of an area which has not been declared to be a Scheduled Area. When a
person acquires an indefeasible right, he can be deprived therefrom only by
taking recourse to the doctrine of Eminent Domain. If a person is sought to
be deprived of an indefeasible right acquired by him, he should be paid an
amount of compensation. In a case of this nature, therefore, where an
amount of compensation has not actually been tendered, the vendees of the
land could not be deprived of their right to be dispossessed. In that view of
the matter, a distinction must be made between a case where an amount of
compensation has been paid and in a case where it has not been. If a vested
right has not been taken away, the question of applicability of Article 14 of
the Constitution of India would not arise.
The High Court, however, proceeded to apply Article 14 of the
Constitution of India on the premise that the provisions of the 1999 Act
clearly seek to destroy the right conferred on Scheduled Area by Act 31 of
1975. The approach of the High Court being not correct, the same cannot be
sustained.
REASON FOR AMENDMENT
This brings us to the question as to whether the 1999 Act is invalid
inter alia because the State was apprehensive that the assignees may offer
70organized resistance for implementation of the 1975 Act and the State
wanted to avert a conflict between the tribals and the non-tribals. The short
answer to the said question is that the State cannot shut its eyes to the
ground realities. The Statement of Objects and Reasons would clearly show
that the State did not take an action in a half-hearted manner. It consulted
the tribal organizations. It is stated in its Counter Affidavit by the State
before the High Court as under:
“… Under the above circumstances, urgent steps
were taken to have discussion with the various
tribal organisations did not insist upon getting the
very same land that had been alienated but would
prefer to obtain an equal extent of land from the
Government. Many organisations did not insist
that the Act 31 of 1975 should be implemented in
its original form. The Government also had
serious discussions with various political parties
and other concerned with tribal welfare.
Discussions were also held with the present
occupants of the alienated tribal lands.On the basis of the discussions and deliberations
the Government thought it proper to introduce a
suitable legislation which would adequately take
care of the interests of the Tribals and also find a
solution to the problems of landlessness and
homelessness of the Tribals. Accordingly, the
Kerala Restriction on transfer by and Restoration
of Land to the Scheduled Tribes Act, 1999 was
introduced in the State Assembly and the same was
71unanimously passed by the Assembly. The Bill
became an Act (Act 12 of 1999) on 20.4.1999.”If the contention of the State is correct that most of the tribal
organizations did not insist upon getting the same land that they had been
alienated from but would have preferred to have alternate land allotted to
them by the government and as many organizations insisted that the 1975
Act may not be implemented in its original form, we think that action of the
State cannot be termed to be arbitrary so as to attract the wrath of the
equality clause contained in Article 14 of the Constitution of India.
While doing so, the State had taken into consideration the change in
the situation by reason of passage of time. The tribals had been out of
possession of their lands for decades. It was for the elected representatives
of the people to determine as to whether by reason of the provisions of the
1999 Act the members of the Scheduled Tribe would face dislocation or that
it would impinge on their culture connected with their lands.
The ground realities are presumed to be known to the State and if
anybody raises a contrary contention, it would be for him to bring on record
sufficient materials to show so as to enable the court to arrive at a conclusion
that the State’s action was arbitrary.
72
It is furthermore a well-settled principle of law that the superior court
in exercise of their power of judicial review of legislation would not
ordinarily determine the merit of the legislation by entering into a broad
question as to whether materials placed before the Legislature were
sufficient for bringing out the legislation in question or not.
Such inquisitorial inquiry on the part of the court, in our opinion, is
beyond the province of the court.
BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT
The 1999 Act, in our opinion, is more beneficial in nature so far as the
people of the State of Kerala are concerned.
The 1975 Act came into force with retrospective effect from
1.01.1982. But, as noticed hereinbefore, the Rules were framed only on
18.10.1986. Act 12 of 1999, however, came into force on 20.04.1999 but
was given a retrospective effect and retroactive operation from 24.01.1986.
We heretobelow may notice a comparative chart of the salient
provisions of the two Acts:
Act 31/75 – Came into force on Act 12/99 came into force
01.01.1982 Pages 135 – 142 on 20.04.1999 Page Nos.161– 169, but deemed to have
73come into force on
24.01.19862(b) “Immovable property” defined 2(4) Section
as including standing crops and
trees. Act applies to such “Land” defined means
property agricultural land – Act
applies to such land.4. Transfer of any immovable 4. Transfer of any land (i.e.
property by a tribal to a non Agricultural land) by tribal tribal without previous consent to non-tribal after of competent authority after commencement of Act commencement of the Act shall without previous consent of be void. competent authority shall be void. 5. Transfer of immovable property 5. (1) Transfer of land by tribal by Tribal to non tribal after to non tribal after 01.01.1960 shall be deemed to 01.01.1960 and before Act be invalid shall be deemed to be invalid. Proviso : But this will not invalidate transfers where the extent of land transferred does not exceed two hectares (2) Notwithstanding (1) above, where the land transferred is used for agriculture purpose the transferor may retain the transferred land or 2 Hectres to be demarcated by the RDO. 6(1) The Tribal whose transfer is 6 Styled as allotment of land. invalidated under Sections 4 and 5 shall be entitled to restoration 1) Tribal who has effected of possession of the property. transfer of land between 74 Sub Section (5) provide for a 01.01.1960 and 2.4.1986 and remedy of appeal to the aggrieved persons to the a) who has filed an competent authority. application for restoration u/s. 6 of Act 31 of 1975 b) but whose possession has not been restored. c) and which transfer has been validated by the provisions of Sec.5 above shall be entitled to allotment of equal extent of land by Government to the extent of 40 Ares. 7. Govt. may take Suo-moto action Proviso : for restoration Where the extent of land to be so allotted is less than 40 Ares (One Acre) Government will make further allotment to make the total extent 40 Ares. 11. Where possession is restored to 7. Where a transfer of land is tribal under Section 6 he shall invalidated U/s.4 and 5 of pay to the quantum transferee the Tribal is entitled to the consideration received as restoration of such land. also the value of the improvement effected by the transferee as determined by the competent authority. 12. Government may advance loans Sub-section 2 to 4 prescribe to tribal for; payment of the the procedure for restoration amount u/s.11 to be repaid in with a right of appeal under half yearly or annual instalment sub section 6 (Akin to and to be recovered as an arrear section 6 of Act 31 of 75) 75 of land revenue if kept in arrears. 8. 1 Similar to section 11 of Act 31 of 75 9. Government shall provide grant to eligible tribal/liable to pay the amount under Section 8. 10. (1) Government shall assign land to landless tribal families not exceeding 40 Ares in extent in his own district within two years or extended time. (2) If any family owns land below 40 Ares I extent Govt. to assign such extent of land as is necessary to make up 40 Ares. 11. Schedule Tribe rehabilitation and Welfare Fund to be constituted for construction of houses for tribal families and for other welfare measures. 12. Provision for legal assistance 22 Repeal of Act 31 of 1975 with usual saving clause. 76Broadly, speaking, the provisions of the 1999 Act are more beneficial
to the members of the Scheduled Tribe. For determining the said question,
we must take a holistic view of the matter. However, we are not oblivious of
the fact that restoration in respect of non-agricultural land and to the extent
of 2 acres are not contemplated by the 1999 Act. We are also not oblivious
of the fact that, it would appear, on the basis of the statistics furnished by the
learned Additional Advocate General before the High Court, to which we
have referred to heretobefore itself that a large number of members of the
Scheduled Tribe would be deprived of the benefit of restoration of their own
lands constituted in forest areas.
In the counter-affidavit filed by the State, it is stated:
“It is submitted that the Government found that
Act 31 of 1975 would not really serve the purpose
of ameliorating the problems of the scheduled
tribes and might instead lead to law and order
situation in various parts of the State. After a
comprehensive study of the matter the Government
passed Act 12 of 1999. The allegation that the
intention of Act 12 of 1999 is other than protection
of the rights of schedule tribes is incorrect and
denied. A reading of all the provisions of the Act
12 of 1999 would make it clear that the legislature
has kept the over all interests of the tribals and all
the people of the State is general while enacting
Act 12 of 1999. It is submitted that no right
77conferred by Act 31 of 1975 has been taken away
by Act 12 of 1999. The allegation that Act 12 of
1999 is meant to protect the right of tribals is
incorrect and is denied. It is submitted that the
various provisions of Act 12 of 1999 had already
been delineated elsewhere in the counter affidavit
and the reasons for the enactment of Act 12 of
1999 have also been explained.”Out of 4724 applications for restoration filed, 1475 applications
involved transfer of less than 50 cents, 898 applications involved transfer of
“extent between 50 cents and 1 acre”, 904 applications covered cases of
“transfer of extent between 1 and 2 acres and 1074 applications related to
“transfer of extent between 2 acres and 5 acres and that only 373
applications involved cases of transfer of more than 5 acres or 2 hectares.
The State has clearly brought on record the fact that it had conducted
further studies wherefrom it came to learn that about 12,000 tribal families
in the State did not possess any land of their own and 30,000 families did not
have any house of their own.
It is necessary, according to us, to bear in mind that the law postulates
grant of compensation in a case where the right on a land is sought to be
78taken away. The 1975 Act postulates grant of compensation to the alienees,
the amount wherefor was required to be determined by a competent
authority. The amount of compensation so determined was to be paid by the
members of the Scheduled Tribe to their vendees in respect whereof he was
to take loan from the State. The amount of loan taken was, thus, required to
be repaid. The 1999 Act, however, provides for a grant which need not be
repaid.
The members of the Scheduled Tribe were further to get one acre of
land from the State although they might have transferred even 5 or 10 cents
of land. In the case of a transfer made upto two acres, he is to be allotted
two acres of land by the State. Whether such land is available with the State
Government or not is a different question, which we intend to deal with
separately. The statute also contemplates building of houses for the
members of the Scheduled Tribes. It provides that the land to the extent of
one acre also be provided to the landless tribals. It contemplates constitution
of a rehabilitation fund.
The 1999 Act, therefore, if given a holistic view, is more beneficial to
the members of the Scheduled Tribe than the 1975 Act. If the State
79contemplated a legislative policy for grant of more benefits to a vast section
of people, taking care of not only restoration of land but those who have not
transferred any land at all or otherwise landless, the statute by no stretch of
imagination can be treated to be an arbitrary and an unreasonable one.
ARTICLE 21 ISSUE
Article 21 deals with right to life and liberty. Would it bring within
its umbrage a right of tribals to be rehabilitated in their own habitat is the
question? If the answer is to be rendered in the affirmative, then, for no
reason whatsoever even an inch of land belonging to a member of Scheduled
Tribe can ever be acquired. Furthermore, a distinction must be borne
between a right of rehabilitation required to be provided when the land of the
members of the Scheduled Tribe are acquired vis-`-vis a prohibition
imposed upon the State from doing so at all. The question must be
considered from another angle. The Scheduled Tribes are not in an agency
area or Scheduled Area. The literacy rate of the tribals of Kerala is 57%
which is much more than the national average. Most of the tribal children
have elementary education. In the schools and colleges of Kerala,
Malayalam, Tamil or English is taught. It has been noticed by various
writers that the tribal teachers have not been interacting with the students in
80the tribal terms and, thus, gradually the tribal students have lost respect for
their language and begun to disregard their language, their culture and, thus,
their own primitive way of life. [See Tribes of Kerala – Identity Crisis by
Rayson K. Alex]
The learned author states:
“What is the criterion for the government to label a
tribe as a “scheduled” tribe in the constitution? Has
the government conducted a detailed study on the
culture, traditions, their interrelationship with the
place they live in, their socio-economic structures
and judiciary before labeling them as “scheduled”
tribes? The reason for this categorization can be
attributed to their “supposed” backwardness and
not their distinct identity from the dominant
society of the country. Without taking into
consideration aforementioned aspects of the
culture of the tribes, to create “awareness” and to
finally “develop” (in the narrow sense of the word)
them, the tribes were forced to merge and
condition themselves along the lines of the so-
called “main-stream” Indian society. “When that
was challenged, the ideologues of the aggressing
society presented the theory of “integration” which
in reality is the other side of the same coin. And
now has come the final blow from the armory of
the India state for the indigenous people of the
country in the form of total denial of their
existence in India. “India does not have indigenous
population”! Thus declared the Indian Permanent
Mission in the United Nation in Geneva (Mullick
et al 7).81
This is not an argument made to showcase the
tribes of Kerala as “scheduled tribes.” Now a
question of serious importance can be raised: Is
there a need to uphold/preserve this indigenous
culture? The outer (can be read as “other”)
influences have spread their roots so strong that
their minds have been colonized (can be read as
`altered’). Even though the tribes carry wonderful
memories of their rich past, they do not want to be
in the same situation as they were in days of yore.
So, the need for conservation of the tribal culture is
the problem of the non-tribes, especially the
researchers, scholars and activists working in this
area. Intentionally or unintentionally, changes are
the only constant feature of any culture. It can be
observed that no culture can retain its flavor at
different points of time. But the questions to be
addressed to the “main-stream” and its government
are: Are the tribes given freedom to accept or deny
what ever they want? Are they given a free space
to think, act and establish (as they used to in days
of yore?)”We may notice that in Indigenous and Tribal Populations Convention,
1957 which has been ratified by 27 countries including India contained
following clauses:
“Article 11
The right of ownership, collective or individual, of
the members of the populations concerned over the
lands which these populations traditionally occupy
shall be recognised.Article 12
821. The populations concerned shall not be removed
without their free consent from their habitual
territories except in accordance with national laws
and regulations for reasons relating to national
security, or in the interest of national economic
development or of the health of the said
populations.2. When in such cases removal of these
populations is necessary as an exceptional
measure, they shall be provided with lands of
quality at least equal to that of the lands previously
occupied by them, suitable to provide for their
present needs and future development. In cases
where chances of alternative employment exist and
where the populations concerned prefer to have
compensation in money or in kind, they shall be so
compensated under appropriate guarantees.3. Persons thus removed shall be fully
compensated for any resulting loss or injury.Article 13
1. Procedures for the transmission of rights of
ownership and use of land which are established
by the customs of the populations concerned shall
be respected, within the framework of national
laws and regulations, in so far as they satisfy the
needs of these populations and do not hinder their
economic and social development.2. Arrangements shall be made to prevent persons
who are not members of the populations concerned
from taking advantage of these customs or of lack
of understanding of the laws on the part of the
members of these populations to secure the
ownership or use of the lands belonging to such
members.”83
Thus, removal of the population, by way of an exceptional measure, is
not ruled out. It is only subject to the condition that lands of quality at least
equal to that of the lands previously occupied by them, suitable to provide
for their present needs and future development. We may, however, notice
that this Convention has not been ratified by many countries in the
Convention held in 1989. Those who have ratified the 1989 Convention are
not bound by it.
Furthermore, the United Nations adopted a declaration on the rights of
indigenous peoples in September, 2007. Articles 3 to 5 thereof read as
under:
“Article 3
Indigenous peoples have the right to self-
determination. By virtue of that right they freely
determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to
self-determination, have the right to autonomy or
self-government in matters relating to their internal
and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
84Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining
their right to participate fully, if they so choose, in
the political, economic, social and cultural life of
the State.”It is now accepted that the Panchasheel doctrine which provided that
the tribes could flourish and develop only if the State interfered minimally
and functioned chiefly as a support system in view of passage of time is no
longer valid. Even the notion of autonomy contained in the 1989
Convention has been rejected by India. However, India appears to have
softened its stand against autonomy for tribal people and it has voted in
favour of United Nations declaration on the rights of indigenous people
which affirms various rights to autonomy that are inherent in the tribal
peoples of the world. This declaration, however, is not binding.
This Court furthermore in Narmada Bachao Andolan v. Union of
India and Others [(2000) 10 SCC 664] while considering the validity of
acquisition of lands by the State of Madhya Pradesh for a project known as
Sardar Sarovar Project (SSP) by constructing a dam on river Narmada as a
85result whereof the residence of tribals in various States, viz., Madhya
Pradesh, Gujarat, Maharashtra and Rajasthan were affected, opined as under:
“62. The displacement of the tribals and other
persons would not per se result in the violation of
their fundamental or other rights. The effect is to
see that on their rehabilitation at new locations
they are better off than what they were. At the
rehabilitation sites they will have more and better
amenities than those they enjoyed in their tribal
hamlets. The gradual assimilation in the
mainstream of the society will lead to betterment
and progress.”For the purpose of going into the question with regard to the
adjudication of the water dispute regarding the inter-State River Narmada
and the river valley thereof in terms of the provisions of the inter-State
Water Disputes Act, the award inter alia provided for relief and
rehabilitation stating that no submergence of an area would take place unless
the oustees are rehabilitated.
This Court referred to Article 12 of the ILO Convention No. 107
holding:
86
“58. The said article clearly suggested that
when the removal of the tribal population is
necessary as an exceptional measure, they shall be
provided with land of quality at least equal to that
of the land previously occupied by them and they
shall be fully compensated for any resulting loss or
injury. The rehabilitation package contained in the
award of the Tribunal as improved further by the
State of Gujarat and the other States prima facie
shows that the land required to be allotted to the
tribals is likely to be equal, if not better than what
they had owned.”Noticing that construction of a dam is of utmost importance for
development of the country as it plays an important role in providing
irrigation for food security, domestic and industrial water supply,
hydroelectric power and keeping flood waters back. It repelled a submission
that the execution of SSP without a comprehensive assessment and
evaluation of its environmental impact and a decision regarding its
acceptability would be in violation of the rights of the affected people under
Article 21 of the Constitution of India stating that requisite environmental
clearance had been taken opining that the same had been granted on due
application of mind. It took into consideration the question of relief and
rehabilitation, consequent upon the displacement of people, holding:
87“151. The displacement of the people due to
major river valley projects has occurred in both
developed and developing countries. In the past,
there was no definite policy for rehabilitation of
displaced persons associated with the river valley
projects in India. There were certain project-
specific programmes for implementation on a
temporary basis. For the land acquired,
compensation under the provisions of the Land
Acquisition Act, 1894 used to be given to the
project-affected families. This payment in cash did
not result in satisfactory resettlement of the
displaced families. Realising the difficulties of
displaced persons, the requirement of relief and
rehabilitation of PAFs in the case of Sardar
Sarovar Project was considered by the Narmada
Water Disputes Tribunal and the decision and final
order of the Tribunal given in 1979 contains
detailed directions in regard to acquisition of land
and properties, provision for land, house plots and
civic amenities for the resettlement and
rehabilitation of the affected families. The
resettlement policy has thus emerged and
developed along with the Sardar Sarovar Project.”This Court opined that where two views are permissible, the court
ordinarily would not sit in appeal over a policy decision adopted by the
government. Regarding displacement of people on proposed project, it was
held:
“…It is not fair that tribals and the people in
undeveloped villages should continue in the same
88condition without ever enjoying the fruits of
science and technology for better health and have a
higher quality of lifestyle. Should they not be
encouraged to seek greener pastures elsewhere, if
they can have access to it, either through their own
efforts due to information exchange or due to
outside compulsions. It is with this object in view
that the R&R plans which are developed are meant
to ensure that those who move must be better off in
the new locations at government cost. In the
present case, the R&R packages of the States,
specially of Gujarat, are such that the living
conditions of the oustees will be much better than
what they had in their tribal hamlets.”As regards the question of necessity to balance the loss of forest
because of activities carried on therein and construction of a dam, it was
held:
“242. The loss of forest because of any activity
is undoubtedly harmful. Without going into the
question as to whether the loss of forest due to
river valley project because of submergence is
negligible, compared to deforestation due to other
reasons like cutting of trees for fuel, it is true that
large dams cause submergence leading to loss of
forest areas. But it cannot be ignored and it is
important to note that these large dams also cause
conversion of wasteland into agricultural land and
make the area greener. Large dams can also
become instruments in improving the environment,
as has been the case in western Rajasthan, which
transformed into a green area because of Indira
Gandhi Canal which draws water from Bhakra
89Nangal Dam. This project not only allows the
farmers to grow crops in deserts but also checks
the spread of Thar Desert in the adjoining areas of
Punjab and Haryana.”It is of some significance to note that this Court in Balco Employees’
Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] in regard to
the decision of this Court in Samatha v. State of A.P. [(1997) 8 SCC 191],
by drawing a necessary distinction between an area which is covered by
Fifth Schedule of the Constitution and an area which is not, opined as under:
“71. While we have strong reservations with
regard to the correctness of the majority decision
in Samatha case, which has not only interpreted
the provisions of the aforesaid Section 3(1) of the
A.P. Scheduled Areas Land Transfer Regulation,
1959 but has also interpreted the provisions of the
Fifth Schedule of the Constitution, the said
decision is not applicable in the present case
because the law applicable in Madhya Pradesh is
not similar or identical to the aforesaid Regulation
of Andhra Pradesh. Article 145(3) of the
Constitution provides that any substantial question
of law as to the interpretation of the provisions of
the Constitution can only be decided by a Bench of
five Judges. In Samatha case, it is a Bench of three
Hon’ble Judges who by majority of 2:1, interpreted
the Fifth Schedule of the Constitution. However,
what is important to note here is, as already
observed hereinabove, that the provisions of the
Madhya Pradesh Land Revenue Code, 1959 and
90Section 165, in particular, are not in pari materia
with the aforesaid Section 3 of the Andhra Pradesh
Regulation.”Furthermore, the cut-off date in terms of the 1975 Act was 1.01.1960.
Any transaction which had taken place between 1960 and 1975 and
thereafter had been declared invalid. Admittedly, even after the provisions
thereof having been given full effect, the members of the Scheduled Tribe
had not been put in possession of their own land for decades.
Furthermore, we have noticed hereinbefore that the members of the
Scheduled Tribe are educated and we can safely presume that most of them
are serving various institutions in the State of Kerala and/ or in other parts of
India.
Indisputably, the question of restoration of land should be considered
having regard to their exploitation and rendering them homeless from the
touchstone of Article 46 of the Constitution of India. For the
aforementioned purpose, however, it may be of some interest to consider
that the insistence of autonomy and the view of a section of people that
tribals should be allowed to remain within their own habitat and not be
allowed to mix with the outside world would depend upon the type of
91Scheduled Tribe category in question. Some of them are still living in
jungle and are dependant on the products thereof. Some of them, on the
other hand, have become a part of the mainstream. The difference between
Scheduled Tribes of North-East and in some cases the Islands of Andaman
and Nicobar, on the one hand, and of those who are on the highlands and
plains of the Southern regions must be borne in mind.
We are satisfied that the legislature of Kerala kept in view the
necessity of protecting the interest of the small land holders who were in
possession and enjoyment of property which had belonged to tribal
community and at the same time ensured that the tribals are not thrown out
of their land and rendered homeless. Having regard to the studies conducted
by the State Government and as a balance of interest between tribals and
non-tribals which has been sought to be achieved, the provisions of the 1999
Act are intra vires.
In the counter-affidavit filed by the State, it is stated:
“…It is no doubt true that Act 31 of 1975 was
integrated in the light of the non-tribals depriving
tribals of their land and the tribals being exploited.
However, over the years considering the
92population of land ratio even the non-tribals
occupying land which was once in possession of
the tribals stood to have their livelihood seriously
jeopardise by total implementation of Act 31 of
1975. Ultimately, the Government had to consider
all the aspects of the matter and the Government
found that the optimum solution would be to bring
a new legislation. It is in view of this that Act 12
of 1999 has been passed by the State legislature…”NON-AVAILABILITY OF THE LAND
Mr. Iyer, learned counsel would contend that the State of Kerala is
striving hard for making the lands available to the tribal people. The learned
counsel contended that the State has approached the Forest Bench of this
Court for this purpose. We are, however, not concerned therewith. Keeping
in view the promises made by the 1999 Act, it is obligatory on the part of the
State to provide the land meant for the members of the Scheduled Tribe. If
they do not have sufficient land, they may have to take recourse to the
acquisition proceedings but we are clear in our mind that the State in all
situations will fulfill its legislative promise failing which the persons
aggrieved would be entitled to take recourse to such remedies which are
available to them in law.
93
We must also make it clear that while allotting land to the members of
the Scheduled Tribe, the State cannot and must not allot them hilly or other
types of lands which are not at all fit for agricultural purpose. The lands,
which are to be allotted, must be similar in nature to the land possessed by
the members of Scheduled Tribe. If in the past, such allotments have been
made, as has been contended before us by the learned counsel for the
respondent, the State must allot them other lands which are fit for
agricultural purposes. Such a process should be undertaken and completed
as expeditiously as possible and preferably within a period of six months
from date.
EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY
REVIVING OF THE OLD ACTWhether striking down of an enactment as unconstitutional would
result in automatic revival of an earlier Act which has been repealed? The
High Court wherefor, as noticed hereinbefore, has struck down Section 22 of
1999 Act providing for repeal of 1975 Act. On the aforesaid premise it was
held that the effect must be given to the right accrued under the 1975 Act.
94Sections 6(1) and 7 of the General Clauses Act, 1897, which are
relevant for this purpose, read as under :-
“6. Effect of repeal.
Where this Act, or any Central Act or Regulation
made after the commencement of this Act, repeals
any enactment hitherto made or hereafter to be
made, then, unless a different intention appears,
the repeal shall not —(a) revive anything not in force or existing at
the time at which the repeal takes effect; or(b) affect the previous operation of any
enactment so repealed or anything duly done or
suffered thereunder; or(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any
enactment so repealed; or(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid;and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or
Regulation had not been passed.7. Revival of repealed enactments –
95
(1) In any (Central Act) or Regulations made after
the commencement of this Act, it shall be
necessary, for the purpose of reviving, either
wholly or partially, any enactment wholly or
partially repealed, expressly to state that purpose.This section applies also to all (Central Acts) made
after the third day of January, 1968 and to all
Regulations made on or after the fourteenth day of
January, 1887.”In our opinion, there exists a distinction between a statutory rule and a
Legislative Act. The Legislature did not want a vacuum to be created. The
1999 Act was enacted repealing the 1975 Act only for certain purposes.
Section 22(2) of the 1999 Act upheld certain actions taken under the 1975
Act as if they had been taken in terms thereof. The procedure for
determining the rights and obligations of the parties by the Revenue
Officers, under both the Acts, are more or less the same.
We may notice Sections 19 and 22 of 1999 Act, which are relevant.
They read :-
“19. Saving of other laws. – The provisions of this
Act shall be in addition to and not in derogation of
any other law for the time being in force regulating
any of the matters dealt with in this Act, except to
the extent provided in this Act.”“22. Repeal and saving.-
96
(1) The Kerala Scheduled Tribes (Restriction on
Transfer of Lands and Restoration of
Alienated Lands) Act, 1975 (31 of 1975) is
hereby repealed.(2) Notwithstanding the repeal of the said Act,
all orders issued by the competent authority
or the Revenue Divisional Officer, so far as
they are not inconsistent with the provisions
of this Act shall be deemed to have been
made under the corresponding provisions of
this Act and shall continue to be in force
accordingly unless and until superseded by
anything done or any action taken under this
Act. Every proceedings pending before a
Court on a complaint under Section 14 of
the said Act shall be deemed as a proceeding
under the corresponding provisions of this
Act and shall be continued accordingly.”It is, therefore, evident that only those laws which are in derogation of
the provisions of the 1999 Act would stand repealed.
We may in this connection notice certain decisions relied upon by Mr.
Krishnan.
A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928
= [1963] Supp (2) SCR 435 ] was a case of substitution of an old rule by a
new rule. It, therefore, ceased to exist and did not automatically get revived
when new rule was held to be invalid.
97
We are, however, dealing with a Legislative Act, validity whereof was
determined in the light of constitutional provisions.
In B.N. Tiwari v. Union of India and others, [ [1965] 2 SCR 421 ],
this Court was again dealing with a statutory rule. It was held that the old
rule did not revive opining :-
“When therefore this Court struck down the carry
forward rule as modified in 1955 that did not mean
that the carry forward rule of 1952 which had
already ceased to exist, because the Government of
India itself cancelled it and had substituted a
modified rule in 1955 in its place, could revive.”However, the legal position was made clear by a Three Judge bench
of this Court in West U.P. Sugar Mills v. State of U.P., [ (2002) 2 SCC
645 ] whereupon also the learned counsel had placed reliance, stating:-
“18. A perusal of Section 20 shows that several
provisions of the Uttar Pradesh General Clauses
Act have been made applicable in relation to
statutory instruments including the statutory Rules
issued under any Uttar Pradesh Act. However,
Section 6-C does not find place in sub-section (2)
of Section 20 of the U.P. General Clauses Act. In
the absence of application of Section 6-C to the
statutory instrument, including the statutory rule,
which is the case before us, the contention of the
98respondents deserves to be rejected. Since Section
6-C of the U.P. General Clauses Act has not been
applied to the statutory rule framed by the
Government of Uttar Pradesh, the substituted rule
after it became inoperative, the old Rule 49 would
not revive.”The aforementioned observations were, thus, made having regard to
the fact that Section 6-C of the U.P. General Clauses Act had not been
applied to the statutory Rules, which reads as under :-
“6-C. Repeal or expiration of law-making textual
amendments in other laws.–(1) Except as
provided by sub-section (2), where any Uttar
Pradesh Act amends the text of any Uttar Pradesh
Act or Regulation by the express omission,
insertion or substitution of any matter, the
amending enactment is subsequently repealed, the
repeal shall not affect the continuance of any such
amendment made by the enactment so repealed
and in operation at the time of such repeal.
(2) Where any such amendment of text is made
by any temporary Uttar Pradesh Act or by an
Ordinance or by any law made in exercise of the
power of the State Legislature by the President or
other authority referred to in sub-clause (a) of
clause (1) of Article 357 of the Constitution, and
such Act, Ordinance or other law ceases to operate
without being re-enacted (with or without
modifications) the amendment of text made
thereby shall also cease to operate.”However, the Bench opined:-
99
“15. It would have been a different case where a
subsequent law which modified the earlier law was
held to be void. In such a case, the earlier law shall
be deemed to have never been modified or
repealed and, therefore, continued to be in force.
Where it is found that the legislature lacked
competence to enact a law, still amends the
existing law and subsequently it is found that the
legislature or the authority was denuded of the
power to amend the existing law, in such a case the
old law would revive and continue. But it is not the
case here.”
Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC 376] is
a case where the statute was modified and a different view was taken.
But the principle laid down therein has been held to be inapplicable in
Indian Express Newspapers v. Union of India, [ (1985) 1 SCC 641 ]
“106. The rule in Mohd. Shaukat Hussain
Khan v. State of A.P. is inapplicable to these
cases. In that case the subsequent law which
modified the earlier one and which was held to
be void was one which according to the Court
could not have been passed at all by the State
Legislature. In such a case the earlier law could
be deemed to have never been modified or
repealed and would, therefore, continue to be in
force. It was strictly not a case of revival of an
earlier law which had been repealed or
modified on the striking down of a later law
which purported to modify or repeal the earlier
100
one. It was a case where the earlier law had not
been either modified or repealed effectively.”
Repeal of a statute, it is well known, is not a matter of mere form but
one of substance. It, however, depends upon the intention of the legislature.
If by reason of a subsequent statute, the legislature intended to abrogate or
wipe off the former enactment, wholly or in part, then it would be a case of
total or pro tanto repeal. If the intention was merely to modify the former
enactment by engrafting an exception or granting an exemption, or by
adding conditions, or by restricting, intercepting or suspending its operation,
such modification would not amount to a repeal.
In Southern Petrochemical Industries (supra), the subsequent Act did
not contain the words “unless a different intention appears”. It was held
that the later Act was not different from the earlier Act.
This Court is required to assume that the Legislature did so
deliberately.
In this case, however, the repealing clause is clear and unambiguous.
We, therefore, cannot accept the submission of Mr. Dayan Krishnan.
AGRICULTURAL AND NON-AGRICULTURAL LAND
101
Classification between agricultural and non-agricultural land is a valid
one. It is, however, accepted that all forest areas comprise of the agricultural
land. The State has admittedly no legislative competence to enact a
legislation in exercise of its power of Entry No. 49, List II of the Seventh
Schedule of the Constitution of India in relation to non-agricultural land.
Such a power has been noticed hereinbefore. It exists only in terms of Entry
6, List III of the Seventh Schedule of the Constitution of India. While
enacting the 1999 Act, the State could not have deprived the persons who
hold non-agricultural land, having enacted the 1975 Act and, thus, could not
have repealed a portion thereof by raising the following contention:
“…If in a given situation a tribal possess non-
agricultural land that only indicates that though the
person is a tribal by birth he has come a long way
from the way of Scheduled Tribe and has acquired
the trappings of non tribals and thereafter has come
to own immovable property other than the
agricultural land. The exploitation of the tribals
has studied would indicate (sic) has always taken
place by deprivation of the agricultural land of the
tribals…”
Once they have made an enactment, the legislative intent is clear and
unambiguous, viz., such exploitation was possible also in so far as non-
agricultural lands are concerned. Such a right conferred on the owners of
102
the non-agricultural land, therefore, could not have taken away without
payment of compensation. We, therefore, are of the opinion that to that
extent the 1975 Act would continue to be applied. The State has no
legislative competence to repeal that portion of the 1975 Act.
For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001 and 899
of 2001 are allowed in part to the extent mentioned above.
In view of our judgment in Civil Appeal Nos. 104-105 of 2001 and
899 of 2001, no orders are called for in Civil Appeal No.7079 of 2001. No
costs
………………………………J.
[ S.B. Sinha ]
…………………………….J.
[ Dr. Mukundakam Sharma ]
New Delhi;
July 21, 2009