Amarendra Nath Dutta And Ors. vs State Of Bihar And Ors. on 23 December, 1982

JUDGMENT

Shivanugrah Narain, J.

1. In this application under Articles 226 and 227 of the Constitution of India, the petitioners pray for quashing the notices, copies whereof are Annexures-1′ to the writ petition and Annexures 1/1 to 1/14 to the first amendment petition to the writ application, by which excepting Annexures 1/1 and 1/3 which are directed to different persons — the Block Development Officer. Patamda, respondent No, 2 has called upon the petitioners to show cause as to why the lands specified in the notices, which were alleged to have been taken possession of by the petitioners illegally, be not restored to various applicants, who had filed applications for restoration of their lands before the Block Development Officer. It is not necessary to .state the particulars of the lands or the names of the applicants before respondent No. 2. It is enough to state that all the lands are situate within the jurisdiction of the Patamda Block which lies in Dhalbhum Sub-Division in the district of Singhbhum. Petitioners also pray for a direction to the respondents namely, the State of Bihar, the Block Development Officer, Patamda Block, the Sub-Divisional Officer, Dhalbhum, the Deputy Commissioner, Singhbhum, and the Union of India, who are respondents 1 to 5 respectively ordering them to forbear from taking steps in pursuance of the impugned notices or otherwise interfering with the petitioners’ right, title, interest in and possession over the lands in respect of which the notices have been issued. It is not disputed that the Block Development Officer, Patamda, is a Deputy Commissioner within the meaning of the expression as used in Sections 46 and 71-A of the Chhotanagpur Tenancy Act, 1908 (hereinafter called “the Act”). The statutory provision, in exercise of the powers conferred by which the notices have been issued, is not stated in the notices. According to the petitioners, the notices have been issued in exercise of the powers conferred by Section 71-A of the Act. According to the counter-affidavit filed on behalf of the State of Bihar and respondents 2 to 4, which have been relied upon by the other appearing respondents, the notices have been issued both under Sections 46 and 71-A of the Act. The learned Advocate General who appeared on behalf of respondents 1 to 4 and the learned Advocates who appeared for the Union of India or the private respondents, however, expressed their willingness to argue on the footing that the notices had been issued under Section 71-A of the Act. Therefore, for the proposes of this case, we will proceed on the assumption that the impugned notices have been issued in exercise of the powers conferred by Section 71-A of the Act.

2. In exercise of the powers conferred upon him by paragraph 6 of the Fifth Schedule to the Constitution of India, made, on 26th January, 1950. “The Scheduled Areas (Part A States) Order, 1950” (hereinafter called “the 1950 Order”) specifying certain areas In various Part A States as Scheduled Areas, Among the areas in the State of Bihar declare as Scheduled Areas by the 1950 Order was the district of Singhbhum, excluding Dhalbhum Sub-Division. Acting in exercise of the powers conferred by Paragraph 5 of the Fifth Schedule to the Constitution, the Governor of Bihar, made the Scheduled Areas Regulation Act, 1969 (hereinafter called “the Regulation”). The Regulation amended in their application to the Scheduled Areas various ‘Acts, including the Indian Limitation Act, 1963 and the Chhotanagpur Tenancy Act, 1908. The Regulation amended Article 65 of the Indian Limitation Act by substituting 30 years, as the prescribed period of limitation in place of 12 years. It also made certain amendments to the Act’ regarding which it is only necessary to state that it added a new Section 71-A to the Act. Section 71-A empowered the Deputy Commissioner to restore possession to raiyats belonging to the Scheduled Tribes over lands, if the Deputy Commissioner was satisfied that the transfer of the land had been effected in contravention of the provisions of Section 46 or any other provision of the Act or by any fraudulent method. Section 71-A was not initially in force in the Dhalbhum Sub-Division as it was not then included in the Scheduled Areas in the State of Bihar. On 7th September 1976 the President gave his assent to the Fifth Schedule to the Constitution (Amendment) Act, 1976 (Act 101 of 1976), (hereinafter called “the Amendment Act”), passed by the two Houses of Parliament. The Amendment Act amended sub-paragraph (2) of paragraph 6 of the Fifth Schedule to the Constitution. In exercise of the power conferred on him by the amended paragraph 6 (2), the President, on 21st December 1977 made an order, namely. The Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, (hereinafter called, the ‘1977 Order’) rescinding the 1950 Order, and re-defining the Scheduled Areas. By the Scheduled Areas Order (1977), the entire district of Singhbhum, and, therefore, the Dhalbhum Sub-Division became a part of the Scheduled Areas in the State of Bihar. Thus, if the Amendment Act and the Presidential Orders made thereunder are valid, Section 71-A became applicable to Dhalbhum Sub-Division. The impugned notices were issued on some date or dates in December 1978.

3. According to the petitioners, they are in .legal possession of the lands in respect of which notices have been issued. Petitioner No. 9 claims to be in possession as the recorded tenant of the lands. Petitioners Nos. l and 8 claim to be in possession on the basis of and from the time of the settlement of the lands by the landlord in their favour. The first relevant settlement in favour of petitioner No. 1 was made in 1938, and except in respect of one piece of land, the settlement of which was made in 1959, the other settlements in favour of petitioner No. 1 are alleged to have been made in 1945 or 1946. The settlement in favour of petitioner No. 8 is alleged to have been made in the year 1941. Petitioners Nos. 3 & 6 are alleged to have acquired the lands and to have come in possession thereof by virtue of decrees of the Civil Court. According to petitioners, petitioner No. 3 was in possession of the lands either since 1962 or 1963. Petitioners Nos. 2, 4, 5 and 7 claim to be in possession from the time and by virtue of execution registered sale-deeds in their favour by different persons, petitioner No. 2 since 1962, petitioner No, 7 since 17% November, 1965 and petitioner No. 5 since 3-4-1973, The date or even year of the registered sale-deed in favour of petitioner No. 4 or the date or year from which he is in possession of the lands is not disclosed. Similarly, the date or even year of the civil court decree or of his possession has not been disclosed in respect of the lands alleged to be in possession of petitioner No. 6.

4. In the petition filed, the notices have been impugned as without jurisdiction on the sole ground that Section 71-A of the Chhotanagpur Tenancy Act, 1908, under which notices have been issued, was not in operation in the Dhalbhum Sub-Division within which the lands were situate. Two reasons were set owl in support of this ground, namely, (i) that as Dhalbhum Sub-Division was one of the most developed parts of the State of Bihar and even in the Union of India and no reasonable person could regard it as a backward area, the Scheduled Areas (States of Bihar, Gujarat Madhya Pradesh and Orissa) Order, 1977, was ultra vires the powers of the President under paragraph 6 of the Fifth Schedule in so far as it purported to include Dhalbhum Sub-Division within the Scheduled Areas; and, (ii) if the Fifth Schedule to the Constitution of India (Amendment) Act, 1976, purported to confer a power upon the President to increase the Scheduled Areas in the manner done by the 1977 Order, the Fifth Schedule of the Constitution of India (Amendment) Act 1976, was ultra vires the Constitution.

5. I should state that the original writ petition was amended by two amendment petitions, one dated 27-8-79 and the other dated 31-9-81 which were allowed by orders dated 3-9-79 and 6-1-82 respectively and that on the oral prayer of the counsel for the petitioners Union of India was added as respondent No. 5 to the writ petition. In the original petition only the State of Bihar and the Block Development Officer, Patamda Block, respondents 1 and 2 respectively were impleaded and that only two notices issued against petitioner No. 1, compendiously marked Annexure-1, were annexed to the writ petition. By the first amendment petition the Sub-Divisional Officer. Dhalbhum, and the Deputy Commissioner Singhbhum. were added as respondents Nos. 3 & 4 and the copies of notices issued against the petitioners other than petitioner No. 1 or of notices by which the petitioners were aggrieved were annexed to the writ petition. By the second amendment petition the persons on whose applications the Block Development Officer respondent No. 2 had issued notices were added as respondents Nos. 6 to 15 to the writ petition and the particulars of the lands and of the title by which the petitioners claimed to be in possession of the same were furnished.

6. Cause has been shown by the learned Advocate General on behalf of the State of Bihar and its officers who are respondents 1 to 4 who have also filed two counter-affidavits — one on 1-2-1’980 and the other on 2-7-1980. Cause has also been shown by Shri Devi Prasad, the learned standing counsel on behalf of the Union of India, respondent No. 5, and by Sri A.K. Sinha, learned counsel appearing on behalf of Satya Singh, respondent No. 10 (wrongly described in the petition showing cause as respondent No. 5), A show cause petition has also been filed on behalf of respondent No. 10, during the course of hearing of the petition. No counter-affidavit etc. has been filed on behalf of the Union of India. In the counter affidavit filed on behalf of the State it has been asserted that the Fifth Schedule to the Constitution of India (Amendment) Act, 1976 and the 1977 Order were intra vires and valid and that it was wrong to say that the entire Dhalbhum Sub-Division was a highly developed area, that barring a few pockets, by and large the Dhalbhum Sub-Division was a backward area and that it had a large tribal population and which was in need of protection from exploitation by nontribals and especially from wrongful dispossession from their lands. The need for protection had increased because of industrialisation which had resulted in the increase of the non-tribal exploiting population and increase in the number of wrongful ejectment of the tribal population from their lands. The writ petition was also said to be not maintainable as no final order had been passed in the proceedings, initiated by the notices. In the petition filed on behalf of respondent No. 10, it was asserted that the statements in the petition regarding possession of the petitioners and their title to the lands in dispute was not correct; that the lands belonged to respondents and that the matter required to be enquired into.

7. The validity of the impugned notices and the proceedings initiated by those notices has been assailed by Shri Ghose, the learned counsel for the petitioners, on the following grounds:–

(i) That the Deputy Commissioner was not authorised to order the restoration of possession of lands in possession of transferees where the transfer had taken place prior to coming into force of Section 71-A in the Dhalbahum Sub-Division.

(ii) That at any rate, properly construed Section 71-A of the Act did not authorise the Deputy Commissioner to order the restoration of possession of lands over which the persons in possession had acquired title by adverse possession for more than 12 years prior to coming into force of Section 71-A of the Act in Dhalbhum Sub-Division.

(iii) That Section 71-A of the Act is not in force in the Dhalbhum Sub-Division because the 1977 Order was ultra vires the power of the President under paragraph 6 of the Fifth Schedule; (a) firstly, because the Fifth Schedule of the Constitution of India (Amendment 1976) was ultra vires the Constitution and under the unamended paragraph 6 (2) of the Constitution the President had no power to rescind the 1950 Order and increase the area of the Scheduled Areas declared by the 1950 Order except in the special circumstances enumerated in the original paragraph 6 (2); and (b) secondly, because the 1977 Order was ultra vires the powers of the President under paragraph 6 (2) of the Schedule because the power to re-define and to increase the areas of the Scheduled Areas had been exercised arbitrarily and capriciously and in contravention of the principle governing the exercise of the power to define Scheduled Areas.

(iv) That the Regulation was ultra vires the Constitution. Except the third ground of attack, the other grounds of attack are not specified in the writ petition even as later amended. Grounds Nos. (ii) and (iv) are incorporated in a note filed on behalf of the petitioners stating the important questions, which arise for determination in the case. According to the learned counsel for the petitioners, copies of office notes were served en the Advocate General as well as counsel for the Union of India. The first ground was put forward at the time of the hearing of the application onward. The new grounds can be considered only so far as they do not involve any investigation into disputed questions of facts and arise on facts either admitted or proved beyond controversy.

8. The second ground of attack on the validity of the notices, Exhibit 1 series, may first be considered. This attack is based on the fact that the petitioners have acquired indefeasible title to the lands which are the subject matter of the proceeding by adverse possession for more than 12 years prior to coming into force in the Dhalbhum Subdivision of Section 71-A of the Act. This ground of attack must be rejected on the short ground that the fact that the petitioners have been in possession of those lands for 12 years or more is neither admitted nor proved beyond controversy. I have already referred to the petition showing cause filed on behalf of respondent No. 10 in which the allegation about the title and possession of the petitioners over the lands in dispute have been controverted. That petition was no doubt filed, as stated, during the course of the hearing of the writ petition but still I think it expedient in the ends of justice to entertain that petition. Apart from the fact that according to respondent No. 10, he was prevented by the petitioners from proceeding to Ranchi for filing the reply to the writ petition earlier, the question whether Section 71A applied to lands in which the transferees had acquired title by adverse possession and were continuing in possession till the enforcement of Section 71A in Dhalbhum Sub-division was not raised in the main petition or in the amendment petition but only by way of a note submitted later, copy of which was not served on the learned Advocate for respondent No. 10 prior to the commencement of the hearing of this writ petition. Moreover, so far as petitioner No. 5 is concerned, on the averments in the amendment petition dated 21-9-1981, which alone contains the necessary averments on the point of title and possession of the petitioners, petitioner No. 5 has not yet acquired any title by adverse possession, he claim to have acquired title and possession over the lands by a registered sale deed dated 3-4-1973. And so far as petitioners Nos. 4 & 6 are concerned the time of acquisition of title or possession has not been disclosed. It is only stated in the compendious paragraph 4 of the amendment petition that petitioner No. 4 purchased the lands by registered sale deed and is still in possession and that petitioner No. 6 had acquired certain lands through civil Court decree. So far as the other petitioners are concerned, though there is an averment that they are in possession of the various disputed lands for more than 12 years, there is no evidence, apart from the affidavit in support of one of the petitioners, in support of the averment. Neither the documents of settlement nor the sale deeds nor the decrees of Civil Court have been produced. Further as except one, no private respondents have appeared, it is not proper to take recourse to the principle that the averments in the writ application not specifically denied must be deemed to be admitted.

9. The first ground of attack on the validity of the notices is plainly misconceived. Section 71’A of “the Act runs thus :–

“71 A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred:– If at any time it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provisions of this Act or by any fraudulent method including decrees obtained in suits by fraud or collusion he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir and if such heir is not available or is not willing to agree to such restoration resettle it with another raiyat belonging to the Schedule Tribes according to the village custom for the disposal of an abandoned holding.

Provided that if the transferee has, within 30 years from the date of transfer constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the trans-ferer is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the Order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed.

Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation 1969 he may, notwithstanding any other provisions of the Act, validate such a transfer the transferee either makes available to the transferer an alternative holding or portion thereof, as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for, rehabilitation of the transferor:–

Provided also that if after an enquiry
the Deputy Commissioner is satisfied
that the transferee has acquired a title
by adverse possession and that the
transferred land should be restored or
resettled he shall require the transferer
or his heir or another raiyat, as the
case may be to deposit with the
Deputy Commissioner such sum of
money as may be determined by the
Deputy Commissioner, having regard to
the amount for which the land was
transferred or the market value of the
land, as the case may be, which the Deputy Commissioner may deem fair and
equitable.”

10. It is, therefore, clear that by virtue of section 71A of the Act, the Deputy Commissioner has the power to evict the transferee from the land if the; transfer has taken place in contravention of Section 46 or any other provisions of the Act or by any fraudulent method in suits by fraud or collusion and that the power can be exercised by him at any time. To hold that power of the Deputy Commissioner is limited to setting (aside) or ignoring only transfers of lands which have taken place after the coming into force of Section 71A of the Act would involve reading limitation into the exercise of the power which are not there in the Act. And there would be no warrant for reading the limitation that the impugned transfer of the land must have taken place prior to coming into force of the section. The provisions which I have quoted make it crystal clear that the power extends direct restoration of lands transfers of which were made prior to the coming into force of the Regulation by which Section 71A was introduced in the Act. The first proviso confers power on the Deputy Commissioners to order the transferee who has constructed a building or structure on the holding within 30 years from the date of transfer to remove the same and failing compliance with the order, to get the building or structure demolished. The second proviso empowers the Deputy Commissioner in a case where the transferee has constructed a substantial structure before coming into force of Sections 71A to validate such a transfer if either the transferee makes available to the transferer an alternative holding or portion thereof of the equivalent value in the vicinity or pays adequate compensation. Implicit in this power to validate transfers, subject to the conditions set out, is the power to invalidate them and direct restoration that if the conditions are not fulfilled.

The third proviso clearly shows that the Deputy Commissioner is entitled to restore possession of land of which the Scheduled Tribe raiyat has lost possession as a result of transfer of the character specified in Section 71’A, even if the transferee has acquired title by adverse possession though while doing so the Deputy Commissioner is enjoined to require the transferor or his heir etc., to deposit sum of money to be determined by the Deputy Commissioner.

11. In support of his contention Sri Ghose argued that the Bihar Scheduled Areas Regulation, 1969, was not retrospective in operation and that interpreting Section 71A empowering the Deputy Commissioner to evict persons in possession on the basis of a transfer made prior to the coming into force of Section 71A would amount to giving Section 71A a retrospective operation, I will assume for the purposes of this case that Section 71-A has no retrospective operation. But to hold that under Section 71’A the Deputy Commissioner has the power to evict persons to whom transfers of the land had been made prior to coming into force of Sec. 71A, does not amount to giving it a retrospective operation. Merely because the powers given operate on transfers which have taken place in the past the power which is exercised only after coming1 into force of the Act cannot be held to have retrospective operation.

12. It is well settled that the Statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. Per Hidayatullah, J., as he then was in Kapurchand v. B.S. Grewal (AIR 1965 SC 1491) (at page 1403 of the report). In that case an order of eviction passed by the authorities under the Punjab Security of Land Tenures Act, 1953 on the ground specified in Section 9 (i) (ii) namely, that the tenant has had to pay rent without sufficient cause was impugned on the ground that the failure to pay rent relied upon by the authorities has occurred on the ground ‘hat Section 9 (1) (ii) applied prospectively of the conduct of the tenant prior to coming into force of the new section should not be taken into account. The argument was negatived by Hidayatullah, J., speaking for the Supreme Court in these words .-

“In our opinion, the conduct of the tenant prior to the coming into force of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute must be applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application. The necessary condition for the application of Section 9 (1) (ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act cannot be overlooked.”

On parity of reasoning the fact that the transfer took place in contravention of the Provisions of the Act or by any fraudulent method prior to the coming into force of the Section 71A of the Act can be taken into account and the Section 71A can operate even on transfers made prior to its coming into force.

13. In support of his contention that to hold that it affects transfers made prior to coming into force of Section 71A would make Section 71A retrospective in operation, Sri Ghose relied on the decision in Gaddam Narsa Reddy v. Collector. Adilabad District (AIR 1982 Andh Pra 1). In that case a Full Bench of the Andhra pradesh High Court held that Section 31 of the Andhra Pradesh Regulation 1 of 1959 or its amendments had no selrospective operation and did not affect transfers made prior to the said Regulation or its amendments, coming into force. But that decision is clearly distinguishable. Section 3 (1) (a) of that Regulation prohibited the transfer of immovable property and Section 3 (2) (a) thereof conferred power on the authority to pass a decree of ejectment against any person in possession in contravention of Section 3 (1): “the jurisdiction under Section 3 (2) of the authorities mentioned therein to pass a decree of ejectment was limited to determine the question whether the transfer effected is made in contravention of the provisions of Section 3 (1) (a) and (b)”. Therefore, once it was held that the provisions of Section 3 (1) are not retrospective it could not affect transfers made prior to its coming into force and, therefore, the Full Bench held that the transfers having been made prior to the coming into force of the Regulation could not contravene the provision of Section 3 (1). Under Section 71A of the Act the jurisdiction of the Deputy Commissioner is to determine whether the transfers were made in contravention of Section 46 Or any other provisions of the Act or by any fraudulent method, and not transfers in contravention of the Bihar Scheduled Areas Regulation 1969. And, therefore, even without being retrospective in operation, Section 71A can include within its ambit transfers made prior to the coming into force of that section, if they were in contravention of Section 46 or any other provisions of the Act or by any fraudulent method. This contention of Shri Ghose must, therefore, also fail.

14. We now come to the next ground of attack, viz., that the Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation, 1 of 19691 by which Section 71A was incorporated in the Act is ultra vires the Constitution. The Regulation has clearly been made in exercise of the power conferred on the Governor of Bihar by paragraphs 5 (2) of Schedule 5 (hereinafter called ‘the Schedule’) of the Constitution. Paragraph 5 of the Schedule, so far as is relevant, runs thus;

“(2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.

In particular and without prejudice to the generality of the foregoing powers such regulations may:–

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;

(b) regulate the allotment of land to members of the Scheduled Tribes in such area;

(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.

(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.

(5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council.”

It is well settled that the power of the Governor under sub-paragraph (2) of paragraph 5 to make regulations for the peace and good Government of any scheduled area in the State in the exercise of which he is expressly empowered by sub-paragraph (3) to “repeal or amend any Act of Parliament or of the Legislature of the State or any existing law is plenary legislative power of the widest amplitude. Speaking for the Supreme Court in Ram Kirpal Bhagat v. State of Bihar, (AIR 197Q SC 951). Roy J., as he then was, declared that the power to make regulations (under paragraph 5 (2) of the Fifth Schedule) embraces the utmost power to make laws……” (words in brackets supplied) and described the Bihar Regulation 1 of 1951, a Regulation made under Paragraph 5(2) of the schedule as “an instance of a valid piece of legislation emanating from the legislative authority in the plenitude of power” (at page 958 of the report). It is not urged that the regulation has not been assented to by the President or that it has been made without consulting the Tribes Advisory Council for the State. Therefore, prima facie, the regulation is within the power of legislation conferred upon the Governor of Bihar by the Constitution and does not infringe any constitutional provision by which the grant of the legislative power has been restricted.

15. Shri Ghose. however, contends that his regulation is ultra vires Article 244 (1) of the Constitution. Article 244 (1) runs thus:–

“244 (1). The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam and Meghalaya).”

It is plain that what Article 244 (1) does is to make the provisions of the Fifth Schedule applicable to the administration and control of the Scheduled Areas and Scheduled Tribes in the State. It does not impose ‘any restriction on the powers of legislation conferred on the Governor by Paragraph 5 (2) of the Schedule or for that matter on any power conferred on any authority by the Schedule. Shri Ghose, however, contends that the limitation on the powers conferred by any of the provisions of the Fifth Schedule is implicit in the use of the expression ‘administration and control’ in Article 244 (1) of the Constitution. The argument runs thus: The Schedule is made applicable to the Scheduled Areas only by virtue of Article 244 (1) and by Article 244 ‘the schedule’ is made applicable only so far as ‘administration and control’ of those areas is concerned. ‘Administration’ and ‘control’ do not include the power of legislation. The Regulation is made in exercise of the powers of legislation in respect of those areas and, therefore, is ultra vires. The argument, therefore, comes to this; The power of legislation conferred by Paragraph 5 of the Schedule not being a power relating to administration and control of the areas is not made applicable to the areas or in other words Paragraph 5 which confers the law making power is not applicable to the Scheduled Areas, and, therefore, all regulations made under Paragraph 5 (2) of the Schedule are void as ultra vires Article 244. This startling contention, which has not been supported by any authority is completely and palpably without merit and has to be stated only to be rejected.

16. To accept the contention we must hold that though the makers of the Constitution enacted Paragraph 5 of the Schedule with a view to vest the plenary power of legislation with regard to the Scheduled Areas in the Governor as advised by the Tribes Advisory Council and acting with the approval of the President, as distinct from the Parliament and State Legislature in whom such power is vested in respect of other areas with the object that the final determination of the laws applicable lo the Scheduled Areas should lie with the Governor acting with the approval of the President they singularly failed to achieve that object. Such a construction would make paragraph 5 of the schedule the operation of which is confined to the scheduled areas completely nugatory. Thus, though the makers of the Constitution enacted Paragraph 5 of the Schedule as a part of the Constitution, it will virtually cease to be a part of the Constitution as it would be completely ineffective. The Constitution would, contrary to all principles of construction, be made to say, in the words of Goddard, L. J., in Dormer v. Newcastle-on-Tyne Corporation (1940) 2 All ER 521 at p. 527) that it “had given with one hand what it took away with the other.” Acceptance of the interpretation contended for by Sri Ghose would thus involve a flagrant contravention of the well settled rule of construction that “every clause of a statute should be construed with reference to the context and other clauses of the Act. so as, as far as possible, to make a consistent enactment of the whole statute.”– per Lord Davay in Canada Sugar Refining Co. ((1898) Appeal Cases 735 at p. 741) referred to with approval by the Supreme Court in M. Pentiah’s case (AIR 1961 SC 1107 at P- 1111).

17. And it cannot be said that the expression “administration and control’ is so untraceable that it cannot be construed harmoniously with paragraph 5 of the Schedule, According to Chambers New English Dictionary “administration” means “government in its various branches”. Section 92 of the Government of India Act 1935, sub-section (2) of which conferred on the Governor of the State power to make regulations for partially excluded areas, a power described by Kania J., as he then was, as a plenary power of legislation (in Chatthuram’s case, AIR 1947 FC 32 at p. 36) had the marginal heading
“Administration of excluded areas and partially excluded areas”. The word ‘administration’ in the marginal heading of Section 92 of the Government of India Act, 1935 clearly includes the legislative authority or machinery. The general unqualified expression control in popular parlance includes control over the area by laws and by the exercise of the law making power.” Thus, though in a special context the expression ‘administration’ may be confined to the executive branch of Government, the words ‘administration and control construed in their natural ordinary meaning are wide enough to include within their ambit ‘administration and control’ by and provisions in the Schedule regarding the laws applicable to and the legislative authority for the Scheduled Areas would be provisions relating to the administration and control of the Scheduled Areas”, and, Articles 244 and also the words ‘administrations and control’ in Article 244 (1) which are not technical facts, have, therefore, a natural meaning. And if the language used has a natural meaning, we cannot depart from that meaning unless to use the words of Viscount Haldane L. C. “reading the statute as a whole, the context directs us to do so.” (in Attorney General v. Milne (1914-15) All ER (reprint) 1061 (HL) at p. 1063).

18. And if the Constitution is read as a whole, the context only does not direct us to depart from the wide general meaning of the expression ‘administration and control’ but, as we have seen compels us to adopt the wide natural meaning and reject the narrow special meaning of the words. I might also mention that the words occur in the Constitution “a mechanism under which laws are to be made” –(per Higgins, J., in Attorney General v. Brewery Co. (1908-6 CLR 469) quoted with approval by Gwyer C. J. in Re C. P. and Berar Motor Spirit Act (AIR 1939 FC 1)) an instrument which, (per Lord Wright in James v. Commonwealth of Australia (1935 AC 578)) “is not to be construed in any narrow and pedantic sense” but which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat”– (per Gwyer C. J., in Re C. P. land Berar Motor Spirit Act (supra)). We (may not, therefore, prefer the narrow special meaning to the wide general meaning of the expression ‘administration and control’ as extending to administration and control by the exercise of governmental powers of every description executive, judicial and legislative.

19. Further, we must not forget that our Constitution sets up a ‘Government of laws not men” and subscribes to the doctrine that no member of the executive can interfere with the life, liberty Or property of an individual unless he can support the interference with reference to any law. It is unthinkable that such a Constitution would make provision for administration of an ‘area’ without making provision for the laws applicable to the area and the legislative authority in respect of that area. I may also point out that the expression ‘Administration and Control of Scheduled Areas and Scheduled Tribes’ forms the heading of the provisions of Parl-B of the Fifth Schedule to the Constitution and it is manifest that the expression ‘administration and control’ in Part-B of the Schedule 5 which contains Paragraph 5 which confers upon the Governor the power to make regulations. is wide enough to include provisions regarding laws applicable to and the law making authority for the Scheduled Areas. On the principle that “words are generally used in the same sense throughout the statute, unless there is something repugnant in the context.” (per Wanchoo J., in Bhogilal’s case AIR 1’959 SC 356 at p. 357) the expression administration and control in Article 244 (1) must bear the same wide general meaning. So whatever the principle of interpretation we may apply, it is plain that the construction contended for by Shri Ghose. must be rejected.

20. The validity of the regulation has also been impugned on the ground of excessive delegation of legislative powers. But I am at a loss to understand as to what legislative functions, much less what essential legislative functions, have been delegated by the regulation. The entire change in the various laws has been made by the regulation itself made by the Governor of Bihar himself. No authority has been vested with the exercise of even ancillary or subordinate legislative functions. Section 71 of the Act vests powers in the Deputy Commissioner but that power is clearly the power of determining whether there has been a transfer of the lands in contravention of the provisions of the Act or by a fraudulent mehod. The power conferred is an adjudicatory power, a judicial or quasi judicial power and not a legislative power. This contention, therefore, is also completely misconceived and must be rejected.

21. The challenge to the vires of the Fifth Schedule to the Constitution (Amendment) Act, 1976, (Central Act, 101 of 1976) may now be considered, Article 244 (!’) of the Constitution makes the provisions of the Fifth Schedule applicable to the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam and Meghalaya.” Paragraph 6 of the Fifth Schedule to the Constitution (hereinafter called ‘the Schedule’) as it originally stood, ran thus:–

“(1) In the Constitution the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.”

(2) The President may at any time by order-

(a) direct that the whole or any specified part of a Scheduled Areas shall cease to be a scheduled area or part of such an area.

(b) alter, but only by way of rectification of boundaries any scheduled area,

(c) On any alteration of the boundaries of a State or on the admission into the union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled area; and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order.”

The Parliament, by a law, namely the 5th Schedule to the Constitution Amendment Act, 1976 (hereinafter called the Amendment Act) amended sub-paragraph 2 of Paragraph 6 of the schedule by incorporating therein two Clauses (aa) and (d) which run thus:–

“(aa) increase the area of any scheduled area in a State after consultation with the Governor of the State.”

(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the Stat” concerned, make fresh orders redefining the areas which are to be scheduled areas.”

22. It is argued that the Amendment Act is ultra vires the Constitution, Before considering the precise argument addressed on the point of ultra vires, it is necessary to bear in mind the judicial approach to a question of ultra vires contained in the following passage in the judgment of Khanna J. in Kesavananda Bharati’s case (AIR 1973 SC 1461). In the case of the Queen v. Burah (1878) 3 AC 889 at p, 904-5 (PC) Lord Selborne observed:–

“The established courts of justice, when a question arises, whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instruments by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which given the power, and if it violates no express condition or restriction by which that power is limited……. it is not for any court of justice to inquire further, or to enlarge constructively these conditions and restrictions.”

Although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in the context of the power of amendment of the Constitution, (at page 1838 of the report),

23. The aforesaid Amendment Act. it has not been, and cannot be, disputed, has been made by the Parliament, in exercise of the powers conferred upon it by sub-paragraph 1 of Paragraph of the schedule which runs thus:–

“7 (1). Parliament may from time to time, by law amend by way of addition, variation or repeal any of the provisions of this schedule and, when the schedule is so amended, any reference to this schedule in this Constitution shall be construed as a reference to such schedule as so amended.”

It is thus manifest that the Constitution has conferred upon the Parliament a power to amend ‘this schedule,’ namely, the Vth Schedule to the Constitution and no other part of the Constitution.

It is equally manifest that though the aforesaid power of amendment is limited to the amendment of this schedule, no express limitation has been placed on the power of the Parliament to amend the schedule. The use of the expression ‘amended’ by way of addition, variation or repeal any of the provisions of this schedule makes it crystal clear that a plenary power to amend the schedule has been conferred on the Parliament, the only limitation on the power of the Parliament to amend the schedule being that the power can be exercised only by framing a law, that is to say, in the manner prescribed by the Constitution for framing of laws by the Parliament, Unlike Articles 245 and 246 of the Constitution, the power of the Parliament under Paragraph 7 to amend the schedule is not expressly made subject to the provisions of the Constitution. We have not been referred to any Article of the Constitution, except Article 13 (2) to which I shall presently refer, which in any way limits the wide, general, unqualified power of amendment of ‘the schedule’ conferred by Paragraph 7 (1). Thus, leaving aside Article 13 (2) for the time being, and apart from the limitation that what it can do is only to amend the schedule and that the power to amend may possibly not include the power to abrogate or alter the basic or essential features of the Vth Schedule, no limitation can be read into the power of the Parliament to amend, by following the procedure prescribed for making laws, the schedule in any manner it chooses. It may even repeal any provision or provisions of the schedule.

24. It is not, and cannot be, disputed that the Amendment Act has been made by Parliament in accordance with the procedure prescribed for making laws, What the Parliament has done by the Amendment Act is to amend the schedule by making certain additions in sub-paragraph 2 of Paragraph 6 thereof and nothing else. What the Parliament has done, therefore, is clearly within the general scope of the affirmative words which give the power. Therefore, unless it damages the basic structure of the Schedule of the Constitution or unless Article 13 (2) operates as a restriction on the exercise of the power of amendment conferred, the Amendment Act “violates no express condition or restriction by which that power is limited” and must be held to be valid.

25. Sri Ghose, however, argues that Article 13 (2) is a restriction on the. power of amendment under Paragraph 7 (1) Of the Schedule and the Amendment Act contravenes Article 13 (2) of the Constitution because it infringes the right to equality guaranteed by Article 14 of the Constitution. He urges that the Amendment Act is ultra vires Article 14 of the Constitution as it confers upon the President an unguided and uncanalised power to include any new territory within the Scheduled Areas. He argues that the Amendment Act furnishes no guideline on the basis of which, the decision as to. which new territory should be included within the new Scheduled Area and which should be left out of, is to be made; the entire matter is left to the absolute and unguided discretion of the President. There is a controversy on the question whether there are any guidelines or standards on the basis of which the determination of the Scheduled Areas by the President has to be made. Further, it can very well be said that in the exercise of the power to vary the areas included within the scheduled area by inclusion of new areas therein, the President has to be guided by the Constitution, he has to take into consideration the same factors which he has to take into account in making the initial determination of the Scheduled Areas. It is, however, not necessary to express any concluded opinion on these points in this case because the basic postulate underlying this argument, namely, that Article 13 (2) restricts the power of Parliament under Paragraph 7 (1) of the schedule to amend the provisions of the schedule and, therefore, the validity of enactment made by the Parliament, in exercise of the powers conferred by sub-paragraph 7 (1) can be tested with reference to the provisions of Art, 14 of the Constitution, is unfounded.

26. It cannot be doubted that the power conferred by paragraph 7 (1) is a power to amend the Constitution. It is manifest that the Vth Schedule is a part of the Constitution. Paragraph 7 (1), in express terms, confers upon the Parliament, a power to amend any of the provisions of the Schedule. Further, paragraph 7 (1) provides “when the Schedule is so amended, any reference to this Schedule in this Constitution, shall be construed as a reference to such Schedule as so amended”. The amend ment made, in exercise of the powers conferred by paragraph 7 is, therefore, expressly made part of the Vth Schedule of the Constitution. In these circumstances, I should have thought that no question could be raised that what is conferred upon the Parliament by paragraph 7 (1) is a power to amend the Constitution. But Sri Ghose, the learned counsel for the petitioner has specifically argued that the power under paragraph 7 is not a power of amendment of the Constitution and so the matter has to be examined further.

27. Though the nature and extent of the power under paragraph 7 (1) of the Schedule does not appear to have come up for decision directly by the Court, in determining its nature and extent, assistance can be derived from the observations of the Supreme Court in regard to the power while considering the scope and ambit of the power of amendment under Article 368 of the Constitution. In Kesavananda Bharati’s case (AIR 1973 SC 1461) (supra) Shelat and Grover, JJ.. pointed out, “The group of Articles which expressly confer power on the Parliament to amend are five including Article 368…… The third and the fourth provisions are paragraphs 7 and 21 of the 5th Schedule and 6th Schedule respectively, which have to be read with Article 244” (at page 1573 para 515). A similar view was expressed by Khanna, J., in the same case (at page 1835, paragraph 1357). Even Hegde and Mukherjee, JJ. to whose somewhat contrary observations, I shall have occasion to refer later, did not doubt that the power under paragraph 7 was a power to amend the Constitution. They said: “He contended, and we have no doubt that he did so rightly, — that the Constitution can be amended not only under Article 368 but also under ………Paragraph 7, Schedule V………” (Kesavananda Bharati’s case (supra) at page 1616 para 643).

28. In support of the contention that the power under paragraph 7 was not a power of amendment of the Constitution Sri Ghose refers to the provisions of sub-paragraph 2 of paragraph 9 which reads as follows:

“7 (2). No such law as is mentioned in sub-paragraph (1) of this paragraph” shall be deemed to be an amendment of this Constitution for the purposes of Article 368.”

He argues that sub-paragraph 2 expressly states that the amendment made, in exercise of the power conferred by sub-paragraph 1, was not to be regarded as an amendment of the Constitution. This contention proceeds upon a clear misconception of the provision of sub-paragraph 2 and ignores the concluding words of sub-paragraph 2, viz., “for the the purposes of Article 368”. It cannot be doubted that but for sub-paragraph 2, the power under paragraph l of paragraph 7 would be a power to amend the provisions of the Constitution, a power expressly conferred thereby. Now the effect of sub-paragraph 2 is to create a statutory fiction as a result of which the amendment made under sub-paragraph 1 of paragraph 7 was for a certain limited and solitary purpose not to be regarded as amendment of the Constitution. As pointed out by me in another context in Dorik Mahto v. State of Bihar (AIR 1980 Pat 163) (at pp. 171-72) (FB):–

“Though it is undoubtedly a rule that “full effect must be given to the statutory fiction and it would be carried to its logical conclusion — State of Bombay v. Pandurang Vinayak (AIR 1953 SC 244 at p. 246) — in construing the fiction, it is not to be extended beyond the purpose for which it is created. The fiction enacted by the legislature must be restricted by the plain terms of the statute-Commr. of I.T. Bombay v. Shakuntala, (AIR 1966 SC 719 at p 722). As S. R. Das, C. J., pointed out in the Bengal Immunity case (AIR 1955 SC 661) “legal fictions are created only for some defined purposes” and “a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field” fat page 680 of the report).

Now sub-paragraph 2 of paragraph 7, in express terms, limits the purposes for which it was created, namely, for the purposes of Article 368. It does not say that it shall not be treated as an amendment of this Constitution simpliciter. It says it shall not be treated as an amendment of the Constitution for the purposes of Article 368. To hold that this fiction has the effect of depriving an amendment made, in exercise of this power, of its character of an amendment to the Constitution and to reduce it to the position of an ordinary law would be a completely unwarranted extension of the statutory fiction beyond the purposes for which it was created. The only purpose of the statutory fiction was that while passing the law amending the Schedule the Parliament was not required to follow the special procedure prescribed in Article 368 as for the purposes of Article 368, such law was not to be treated as an amendment of the Constitution under Article 368.

29. The conclusion that in spite of sub-paragraph 2, sub-paragraph 1 of paragraph 7 of the Schedule confers a power to amend the Constitution is fully supported by the decision of the Supreme Court in Mangal Singh v. Union of India, (AIR 1967 SC 944). In that case, the Supreme Court was considering the ambit of the power of amendment of the Constitution under Article 4 of the Constitution. Clause 2 of Article 4 corresponds to sub-paragraph 2 of paragraph 7 of the Schedule, Shah, J., as he then was, speaking for the Supreme Court in that case declared:–

“Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by Article 170 (1) is, in our judgment, implicit in the authority to make law under Article 4. Such a provision is undoutedly an amendment of the Constitution but by the express provision contained in Clause (2) of Article 4, no such law which amends the First and the Fourth Schedules of which makes supplementary, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Article 368”.

30. If the law made under Article 4 is ‘undobtedly an amendment of the constitution’, the law made under paragraph 7 (1) of the Schedule must also be held to be ‘undoubtedly an amendment of the Constitution.’ Now, as pointed out by Mathew, J., “an amendment to the Constitution has the same validity as the Constitution itself although the question whether the amendment has been made in the manner and form and within the power conferred by the Constitution is always justifiable.” (Kesavananda Bharati’s case (AIR 1973 SC 1461) (supra) at page 1911). As we have seen the Amendment Act is within the power of amendment conferred by paragraph 7. The question is whether negatively the power of amendment: is restricted by Article 13 (2) which invalidates ‘laws’ which take away or abridge any of the rights conferred by Part III which includes Article 14, The crucial question, therefore, is whether an amendment of the Constitution is ‘law’ within the meaning of Article 13 (2). The question was answered in the negative by all the Judges of the Supreme Court, except Sikri, C. J., in Kesavanand Bharati’s case (supra). In that case, it was specifically held by majority of the Supreme Court that the expression ‘law’ under Article 13 (2) does not include an amendment of the Constitution under Article 368 of the Constitution and the decision in Golak Naths’ case (AIR 1967 SC 1643) was overruled. Though the specific decision was that the word ‘law’ in Article 13 (2) does not include an amendment of the Constitution under Article 368 of the Constitution, the decision was based on the conclusion that the expression law’ in Article 13 (2) must be construed as referring to the exercise of an ordinary legislative power (Per Hedge, J. and Mukherjee, J. at page 1616) and did not include an amendment of the Constitution which is a law made in exercise of constituent power. Now the expression ‘constituent power’, as pointed out by Hegde & Mukherjee, JJ. is used to describe only the power of amendment. Every amending power, however, large or however small it may be, it is a facet of the constituent power (Kesavanand Bharati’s case (supra) at page 1630). It is significant that Khanna, J., whose opinion turned the scale in Kesavanand Bharati’s case stated his conclusion on the question as follows:–

“The word ‘law’ in Article 13 (2) does not include amendment of the Constitution. He did not qualify the expression ‘amendment of the Constitution’ by adding under. Article 368”. Thus to use the words of Ramaswami. J., in Golak Nath’s case (supra):–

“It is also clear, on the same line of reasoning, that ‘law’ in Article 13 (2) cannot be construed so as to include ‘Jaw’ made by Parliament under Article 4, 169, 392, 5th ‘Schedule, Part D and 6th Schedule para 21. The amending power of Parliament exercised under these Articles stands on the same pedestal as ‘the constitutional amendment made under Article 368 so far as Article 13 (2) is concerned, and does not fall within the definition of ‘law’ within the mean
ing of this last Article.” (page 1733 of
the report).

It follows, therefore, that the expression ‘law’ in Article 13 (2) does not include a law amending Schedule 5 made by the Parliament in exercise of its power to amend the Constitution conferred by paragraph 7 of the Schedule, Therefore, the validity of the Amendment Act cannot be tested with reference to Article 13 (2).

31. I am conscious that in Kesavan and Bharati’s case (AIR 1973 SC 1461) (supra) after pointing out that “there could be little doubt that the expression ‘no such law as aforesaid shall be deemed to be an amendment of this Constitution for the ‘purposes of Article 368’, merely mean that the form and manner prescribed in Article 368 need not be complied with.” Hegde and Mukherjee, JJ., went on to observe, “once this position is accepted, any law made under those provisions takes the character of an ordinary law and that law becomes subject to the other provisions of the Constitution including Article 13 (2).” (at page 1617 of the report). But these observations of Hegde and Mukherjee, JJ., do not represent the law laid down by the Supreme Court in that case, With the exception of Sikri, C. J., none of the other ten Judges appear to have concurred in this conclusion. Shelat and Grover, JJ., clearly dissented from that conclusion. They rejected the argument of the learned Advocate General of Maharashtra that the amending power conferred by articles and provisions of the Constitution other than Article 368 were of a .subordinate character except in so far as those Articles and provisions conferring the power of amendment could, therefore, be amended by following the procedure prescribed in Article 368 and declared as follows:–

“It appears that the statement under Articles and provisions other than Article 368 that any amendment made in those Articles would not amount to an amendment under Article 368 merely embodied the distinction emphasised by Dr. Ambedkar that one category can be amended by the Parliament by mere majority and all the Articles can be amended by the same body but only by following the form and manner prescribed by Article 368 (supra) (at Page 1675 para 511)”.

Further, the aforesaid observations of Hegde and Mukherjee, JJ., are, if I may say so with respect, inconsistent with the other conclusions of their Lordships, I have already said that they held that the Constitution can be amended also under Articles and provisions other than Article 368 and that every amending power, however, large and small, is a facet of the constituent power. If that be so, it logically follows that the law made under the power of amendment contained in the provision of the Constitution other than Article 368 was a law made in exercise of constituent power and not in exercise of ordinary legislative power to which according to their Lordships, the expression ‘law’ in Article 13 (2) was confined. I may also very respectfully add that if the words no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purposes of Article 368′ merely mean ‘that the form and manner prescribed by Article 368 need not be complied with as held by their Lordships at page 1617 of the report, how is it possible to conclude that any law made under those provisions takes the character of ordinary law and becomes subject to the other provisions of the Constitution including Article 13 (2). It is, therefore, clear that the aforesaid observations of their Lordships were not only mere incidental and casual observations which are not binding, but are observations which have been made inadvertently,

32. Further, the conclusion that the law made under the amending powers, conferred by provisions other than Article 368 takes the character of ordinary law and becomes subject to the other provisions of the Constitution is clearly contrary to the decision of the Supreme Court in Mangal Singh’s case (AIR 1967 SC 944) (supra). In that case, the contention that the constitution of, the Legislaive Assembly of Haryana by Section 13 (1) of the Punjab Reorganisation Act. 1966 which was passed in exercise of the powers under Articles 2 and 4 of the Constitution violated the mandatory provisions of Article 170 (1) of the Constitution was rejected and the Supreme Court held that the power to reduce the total number of the members of the Legislative Assembly below the minimum prescribed by Article 170 (1) was implicit in the power to make laws under Article 4, The law made under Article 4 was, therefore, held by the Supreme Court not to be subject to Article 170 (1), a provision of the Constitution. A law, which can amend an Article of the Constitution cannot be regarded as taking; on the character of an ordinary law. I need not point out that those observations by the Hon’ble Judges are clearly contrary (o the conclusion of Ramaswami, J., in Golak Nath’s case quoted above. The contention of Sri Ghose that the ‘Amendment’ Act is ultra vires Article 14 of the Constitution, must, therefore, fail.

33. Sri Ghose, next argues that the Amendment Act alters the basic structures or framework of the Constitution and of the Vth Schedule thereof and is, therefore, invalid. He argues that, however, wide the power of amendment conferred by paragraph 7 may be, it can never extend to altering the basic structure of framework of the Schedule or the Constitution. He points out that. it is well settled by a series of decisions of the Supreme Court, namely, in the Kesavanand Bharati’s case (AIR 1973 SC 1461) (supra); in Indir., Gandhi’s case (AIR 1975 SC 2299) and in Minerva Mills’ case (AIR 1980 SC 1789) that the power to amend the Constitution under Article 368 of the Constitution, though it extends to amending each and every Articles of the Constitution, does not include a power to amend the Constitution so as to damage or destory its essential features or its basic structure, And he argues that if under Article 368 of the Constitution which confers a power which extends to amending each and every Article of the Constitution including Article 368, the Parliament has no power to amend the Constitution, the Parliament can have no power under paragraph 7 of the Schedule which confers only a very limited power of amendment to amend Schedule 5 of the Constitution so as to damage or destroy its basic structure or its essential features. On the other hand, the learned Advocate General, appearing on behalf of the respondents 1 to 4, namely, the State of Bihar and its officers, contends that though under Article 368, the Parliament; has no power to amend the Constitution so as to damage or destroy its basic or essential feature, under paragraph 7 of the Schedule, the Parliament has a power to even abrogate and repeal, the entire 5th Schedule and, therefore, to change even its basic or essential feature. He argues that the 5th Schedule is not a basic or essential feature of the Constitution, it being essentially a temporary provision enacted for the protection of the inhabitants of backward areas, which protection would not be needed after the inhabitants of those areas, due to progress and development in the area, no longer stood in need of that protection. The learned Advocate General refers to the expression “amend by way of addition, variation or repeal, any of the provisions of this Schedule” and asserts that the use of the expression “by way of addition, variation or repeal”, clearly shows that the power of amendment conferred by this provision is wider than the power of amendment conferred under Article 368 in which, as it originally stood, merely the expression ‘amendment’ was used and the enlarging words “by way of addition, variation or repeal” did not occur. In my opinion, it is not necessary for the purposes of this case to decide whether or not, in exercise of the power conferred by paragraph 7, the Parliament could so amend the Fifth Schedule as to abrogate it or damage or destroy its basic or essential feature for, in my opinion, the Constitution Amendment Act does not damage any essential or basic feature of the Constitution or even of the 5th Schedule and, of course, it does not abrogate the same. I proceed to explain.

34. The Fifth Schedule is divided into four parts; parts A, B, C and D. Part C consists of paragraph 6 and Part D consists of paragraph 7 to which I have already referred. Part A consists of three paragraphs; paragraphs 1 to 3; while Part B consists of two paragraphs: paragraphs 4 and 5. Paragraph I defines the expression ‘State’, while paragraph 2 lays down that the executive power of the State, subject to the provisions of the Schedule, extends to the Scheduled areas therein. Paragraph 3 requires the Governor of each State having Scheduled areas to make a report to the President regarding the administration of the Scheduled areas in that State and provides that the executive powers of the Union shall extend to the giving of the directions to the State as to the administration of the Scheduled areas. Paragraph 4 provides for the establishment in each State having Scheduled areas and, if the President so directs, in any State having Scheduled tribes but net Scheduled areas, of a Tribes Advisory Council, its composition, its duties and other incidental matters. Paragraph 5 (1) confers upon the Governor of the State power to exclude the operation of any Act of Parliament or of the legislature of the State in a Scheduled area or part thereof. Paragraph 5 (2), as we have seen, vests in the Governor of the State plenary powers of legislation with regard to Scheduled areas in the State which powers are to be exercised and after consulting the Tribes Advisory Council and with the assent of the President. Thus, the essential features of the Schedule are these : That the determination as to which areas shall be Scheduled area shall be made by the President, that the Governor of the State shall have the power to direct that certain Acts of the Parliament or of the State Legislature shall not apply or shall apply only with certain modifications to that area and after consulting the Tribes Advisory Council. The Governor of the Stale shall have the power with the assent of the President, to make laws in respect of the Scheduled areas. The President has a right to be informed about the affairs of the areas and further the President, in whom the executive power of the Union vests, has the power to give directions to the State as to the administration of those areas.

35. The ‘Amendment Act’, the relevant provisions of which have already been set out, does not affect any of the provisions in parts A, B and D of the Schedule, nor does it alter sub-paragraph 1 of paragraph 6 under which the power of determination as to which area shall be Scheduled area is vested in the President. It only amends sub-paragraph 2 of Paragraph 6. Sub-paragraph 2, by providing that “save as aforesaid, the order made under sub-paragraph 1′ of this paragraph shall not be varied by any subsequent order”, had specifically circumscribed and limited the power of the President to alter the determination of the areas or parts of the State as Scheduled areas which had been made by him initially in exercise of the powers conferred upon him by sub-praragraph 1 of paragraph 6. Under paragraph 2 (a), the President had been given power to decrease the areas included in a Scheduled area and even to abolish the Scheduled areas by direct-ins that the whole of the Scheduled area shall cease to be scheduled area. But sub-paragraph 2, as it originally stood, denied to the President a power to increase the areas of any Scheduled area in the State, except on the alteration of the boundaries of the State or on the admission into the Union or the establishment of a new state as provided in Clause C or incidentally when altering, by way of rectification, the boundaries of the Scheduled area. The effect of the amendment made by the Amendment Act in paragraph 6 (21 is to remove all the fetters on the power of the President to make alterations in the initial order by which the Scheduled areas were defined. He can not only decrease the area, but also increase the area of any Scheduled area (clause (aa) ). He can even rescind the previous order made under paragraph 6 (1) and substitute a fresh order in its place (Clause d). But merely by virtue of the Amendment Act, no additional area can become a part of the Scheduled areas. It could become a Scheduled area only after the President has so declared, by an order made by him. Even after the amendment, the President still remains the sole authority to determine the areas which shall be scheduled areas.

35A. It is true that the Constitution makers had intended that the determination as to what areas shall be Scheduled areas should be made on the coming into force of the Constitution and that further increase in the territories included within the boundaries of Scheduled areas, should not be made, except within the narrow limits indicated in Clauses (b) and (c) of paragraph 6 (1). But it is difficult to conceive that they intended the limitation on the powers of the President to vary the order declaring Scheduled areas to be permanent and immutable. The very fact that they conferred a power on the Parliament to repeal any provision of Schedule 5, including sub-paragraph (2) of paragraph 6 by following the ordinary procedure laid down for making laws, indicates that they did not intend that the provisions if sub-paragraph (2) shall be sacrosanct, permanent and immutable. As I have said, the object of the Constitution was to vest the power of determination of the areas which shall be Scheduled areas, in the President. Circumstances may arise, which, in the opinion of the President, necessitate a change or alteration in the areas of the territories included in the Scheduled areas by in eluding further areas therein. By removing all the hurdles and obstacles in the way of the President, if he is of that opinion, to redetermine the areas the Constitution Amendment Act furthers the intention of the Constitution makers that the power of determination of the areas within the Scheduled areas shall vest in the President. To adapt the words of Chandrachud, C. J.. in Waman Rao’s case (AIR 1981 SC 271 at p. 285), the provisions of the Constitution Amendment Act “strengthen rather than weaken the basic structure” of the Schedule.

36. Sri Ghosh vehemently argued that the democratic form of the Government is a part of the basic structure or framework of the Constitution and the Amendment Act damages the democratic structure of the Constitution. He points out that it is of the essence of the democratic form of Government that laws to which the people of the State are subject, should be made by the people acting through their duly elected representatives. The effect of inclusion of a new area in the Scheduled areas, the argument rims, is to seriously curtail, the power of the elected representatives of the inhabitants of the area in the State Legislature or the Parliament to make laws for the area, if not to divest them of that power. The effect of inclusion of any area, it is argued, is to subject the inhabitants of the area to laws made not by their elected representatives but by the Governor, an individual who has not been elected by them, and, therefore, the amendment destroys the democratic form of Government which admittedly is a basic feature or structure of the Constitution. In my opinion, this argument proceeds upon a misconception of the provisions of the Constitution and the Amendment Act.

37. As I have already pointed out, the Amendment Act by its own terms and by us own force, does not include any areas within the Scheduled areas. Whether any particular area shall or shall not be included within the Scheduled areas is a matter which remains within the discretion of the President even after the amendment. If a new area becomes a part of the Scheduled area, it is because in the exercise of the power under sub-paragraph (1) conferred upon the President by the Constitution makers themselves, the President has determined that it should be so. Therefore the deprivation of the right to be governed by laws made by their elected representatives occurs primarily and directly due to the act of the President, in exercise of power conferred upon him by the original Constitution, and not by the Amendment Act. The Amendment Act cannot, therefore, be regarded as destroying or damaging the democratic form of Government.

38. In support of this argument Sri. Ghosh referred to the observation of Shah, J. (as he then was) in Mangal Singh v. Union of India (AIR 1967 SC 944) (supra) to the effect that the power with which the Parliament is invented by Articles 2 and 3 of the Constitution is power to admit, establish or form new States which conform to the democratic pattern, and is not a power to override the constitutional scheme. The aforesaid observation, as pointed out by Khanna, J. in Kesavanand Bharti’s case (AIR 1973 SC 1461) (supra), “does not warrant an inference of an implied limitation on the power of amendment as contended on behalf of the petitioners. This Court dealt in the above passage with the import of the words ‘supplemental, incidental and consequential provisions’ and held that these provisions did not enable the Parliament to override the constitutional scheme”. In that case, as pointed out by Khanna, J.. the Supreme Court dealt with Article 4, according to which, any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary. Deprivation of the right of the people of Dhalbhum Sub-division to be governed by laws made by their elected representatives has occurred on account of an Order made not in exercise of the power to make supplemental, incidental and consequential provisions, but in exercise of the power conferred by the Constitution to declare certain areas as Scheduled areas, the necessary concomitant of which declaration, is the deprivation or curtailment of those rights. The decision in Mangal Singh’s case (supra), therefore, is of no avail to the petitioners. The attack on the validity of the Amendment Act must, therefore, fail.

39. It remains now to consider the argument that the Scheduled Areas Order of 1977 is ultra vires the power of the President under paragraph 6 of “the Schedule”. The Order is G.S.R. 797 (E) dated December 21, 1977, which was published in the Gazette of India, Extraordinary, Part II, Section 3 (i) dated December 31, 1977. The Order, so far as is relevant, runs thus:–

“In exercise of the powers conferred by sub-paragraph (2) of Paragraph 6 of the Fifth Schedule to the Constitution of India, the President hereby rescinds the Scheduled Areas (part A States) Order, 1950, in so far as it relates to the areas now comprised in the States of Bihar, Gujarat, Madhya Pradesh and Orissa, and the Scheduled Areas (Part B States) Order, 1950, in so far as it relates to the areas now comprised in the State of Madhya Pradesh and in consultation with the Governors of the States concerned, is pleased to make the following Order, namely:–

The Scheduled Areas (State of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977.

1. (1) This Order may be called the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977.

(2). It shall come into force at once,

2. The areas specified below are hereby redefined to be the Scheduled Areas within the States of Bihar, Gujarat, Madhya Pradesh and Orissa:–

   

BIHAR  
 

 l.    Ranchi district  
 

 2.    Singhbhum district  
 

 3.    xx      xx      xx   
 

 4. Singhbhum district   
 

Thus, what the President has done by the impugned Order is to rescind, in relation to the State of Bihar and some other States, the previous Order made under Paragraph 6 and to make fresh orders redefining the areas which are to be the Scheduled Areas. And the result of this Order is that Dhalbhum Sub-Division of Singhbhum district of this State, which was formerly excluded from its ambit, has now become a part of the Scheduled Areas. Apparently, what the President has done is clearly authorised by sub-paragraph 2 (d) of Paragraph 6 and, therefore, the prohibition contained in sub-paragraph (2) against the varying of an Order made under sub-paragraph (1) of Paragraphs by any subsequent Order does not invalidate the Order for the prohibition is prefaced with the words “save as. aforesaid”, that is to say “save as provided by sub-paragraph (2)”. The Order expressly recites that it has been made in consultation with the Governors of the States concerned. Therefore, the Order complies with the only condition restricting the exercise of the powers of the President to rescind any previous Order and to redefine the areas which are to be comprised in Scheduled areas. It is not contended that the Governors concerned were not consulted.

40. The power of redefining the Scheduled areas is a very general and wide power. The areas may be redefined by excluding areas which have been included and/or by including areas which were originally not included within the Scheduled areas, for, the power to redefine is simply the power to define once again. Clause (2) of Paragraph 6 does not lay down the circumstances under which the President may rescind the previous Order or Orders made under Paragraph 6, nor does if impose any limitation or restriction on the said power of the President. How the areas should be redefined and, which areas should be included in Scheduled areas and which should be left out is apparently left to the absolute discretion of the President. Prima facie, therefore, the Order has been made within the scope of the powers conferred and does not violate any limitation or restriction imposed on the exercise of that power. It seems therefore, that the decision of the President regarding the areas, which are to form the Scheduled Areas, is not open to question and to judicial scrutiny.

41. It is, however, contended by Sri Ghosh that though the discretion to define and redefine the areas which are to be Scheduled areas is vested in the President, the discretion must be exercised in accordance with the guidelines which are necessarily implicit in the constitutional scheme and the historical background of the constitutional provision, and as the Order has been passed by the President in contravention of the guidelines, arbitrarily and capriciously, the Courts can and must declare the Order null and void. It is urged that the arbitrary and capricious exercise of every power is a negation of the right to equality guaranteed by Article 14 of the Constitution and that such an exercise of power being contrary to Article 14, is null and void.

42. The power to define or redefine the areas, which are to be Scheduled areas, partakes the character of legislative power, for the application of the other provisions of Schedule 5 is dependent on the exercise of that power, Now the power conferred by paragraph 6, unlike the ordinary legislative power, conferred by Articles 245 and 246 of the Constitution, is not expressly made subject to the other provisions of the Constitution and, therefore, it may well be argued that the validity of the order of the President made under Paragraph 6 cannot be tested with reference to the provisions of Article 1’4 of the Constitution and that the Order is immune from judicial scrutiny. In Mohd. Yaqub v. State of Jammu and Kashmir, (AIR 1968 SC 765), the Supreme Court held that the decision of the President as to which of the rights conferred by Part III of the Constitution shall remain suspended in the period during which the Proclamation of Emergency is in operation, made in exercise of the powers conferred by Article 359 (i), is immune from judicial scrutiny. For the purposes of this case, however, I will assume that the Order made under Paragraph 7 is not completely immune from judicial scrutiny and that if the power is exercised arbitrarily and capriciously, the Order can be struck down by the Court.

43. Shri Ghosh contends that in making the 1977 Order, the President acted arbitrarily and capriciously in so far as he declared Dhalbhum Sub-Division to be part of the Scheduled areas. The constitutional scheme and the historical background, he argues, clearly show that the power to declare a particular territory as a Scheduled area was intended to be exercised by including therein areas which could reasonably be regarded as backward tracts and, as the President has declared Dhalbhum Sub-Division an area which was developed and could by no stretch of imagination be regarded as a backward area, the President had acted arbitrarily and capriciously as no person could reasonably believe that Dhalbhum Sub-Division was a backward tract.

44. Admittedly, the Constitution in express terms does not lay down any guidelines for the exercise of the power of the President to declare which areas shall be Scheduled areas. Can the constitutional policy regarding the inclusion of territories in the ‘Scheduled areas’ be derived from the provisions of the Constitution or from the object of the enactment of the Fifth Schedule? Part X, in which Article 244 occurs, is headed “The Scheduled and Tribal Areas” and the provisions of Schedule V are made applicable to “the Scheduled areas and Scheduled Tribes in any State other than the States of Assam and Meghalaya”, while the provisions of the Sixth Schedule are made applicable to the “tribal areas in the States of Assam and Meghalaya and the Union Territory of Mizoram”. The provisions of the Fifth Schedule are set out under the heading “Provisions as to the Administration and Control of the Scheduled areas and Scheduled Tribes”, and the provisions of Part B of ‘the Schedule’ are headed “Administration and Control of Scheduled areas and Scheduled Tribes”. In the Constitution, therefore, the expression “Scheduled Areas” is used in the conjunction with and juxtaposition of “Scheduled Tribes” and the tribal areas. Paragraph 4 of “the Schedule” provides for the Constitution of a Tribes’ Advisory Council, of which a substantial number is required to consist of representatives of the Scheduled Tribes, Sub-paragraph (5) of Paragraph 5 makes it mandatory on the Governor to consult the Tribes’ Advisory Council for the State before making regulations which may be made by him in exercise of the power under sub-paragraph 5, including regulations prohibiting or restricting the transfer of land by Scheduled Tribes in such areas or regulating carrying on business as money lenders to members of the Scheduled Tribes.

45. The conjunction of Scheduled areas and Scheduled Tribes or Tribal areas, the provisions for establishment of Tribes Advisory Council in States having Scheduled areas, the intention of the Constitution makers that Regulations prohibiting or restricting the transfer of lands by members of the Scheduled Tribes or regulating money-lending to Scheduled Tribes be made, clearly show that the Scheduled areas were intended to consist of areas in which there was a concentration of tribal population. In view of the circumstance that by Paragraph 6 (i), a discretion was given to the President to determine which areas shall be Scheduled areas, I do not think, it can be held that the Constitution makers envisaged that only such areas should be included within the Scheduled areas in which the tribal population was in a majority. If the Constitution makers had so intended, they would have made a specific provision to that effect in the Constitution itself. The object of making special provisions for the administration of the Scheduled areas and vesting power in the Governor to make laws and to modify, or to exclude altogether the operation of, the laws made by the Parliament and the State Legislature in Scheduled areas was, to use the words of Patanjali Sastri, J. (as he then was), with reference to the similar provisions in Section 92 of the Government of India Act, 1935 “that the people inhabiting those areas were not, on account of their primitive or backward condition, fully capable yet of safeguarding their welfare by joint political action in the legislatures of the country, and might otherwise suffer neglect or oppression (Jatindra Nath’s case AIR 1949 FC 175 at p. 181).”

46. Thus, if any guidelines as regards the areas which should be included within the Scheduled areas by the President can be deduced from the provisions of the Constitution, it is that the areas to be included therein should be areas which have a substantial concentration of tribal population. It is assumed that the tribal population is primitive or backward and requires special protection as they are incapable of safeguarding their welfare by action in the legislature. The historical background provides the same guideline. Section 52A of the Government of India Act, 1915, which was inserted by the Government of India Act, 1919, empowered the Governor General in Council to declare any territory within the areas of British India to be a backward tract and empowered him to exclude in the backward tract the operation of any Act of the Indian Legislature or of the local Legislature or to direct that such Act shall apply subject to such exceptions or modifications as the Governor General in Council thought fit. The Governor General in Council could also authorise the Governor to give such directions in respect of any Act of the local Legislature. By notification No. 4G dated 3-1-1921 under Section 52A of the Government of India Act, 1915, the entire Chhotanagpur Division which included Dhalbhum Sub-Division, as also the districts of Santhal parganas and Sambalpur were declared backward tracts in the territories comprised in the then combined State of Bihar and Orissa. The backward tracts were by the Government of India Act, 1935, split un into two categories “excluded or partially excluded areas”. By an order in Council dated 3-3-1936, in the State of Bihar, the entire Chhotanagpur Division and the districts of Santhal Parganas were declared to be partially excluded areas — see the judgment of Kania, J. (as he then was) in Chatturam’s case (AIR 1947 FC 32 at p. 33). Special provision for the administration of the excluded or partially excluded areas was made by Section 92 of the Government of India Act, 1935. It is not necessary to set out the provisions of Section 92 of the Government of India Act, 3935. It is sufficient to state that, as pointed out by Mukherjea, J. (as he then was) in Jatindra Nath’s case (AIR 1949 FC 175), “the entire scheme of the Government of India Act in the matter of excluded and partially excluded areas seems to be, like the previous legislation on the subject, to remove these backward areas from the purview of the general law of the land and to make the Governor of the province the sole repository of legislative power in regard to them” (at page 189 of the report). Earlier in the same case, it was pointed out by Mukherjea, J. that excluded or partially excluded areas of the Government of India Act, 1935, which stood for ‘Scheduled districts’ or “backward tracts” of earlier legislation were “areas, where there appears to be a substantial element of an aboriginal population” (at page 188 of the report). The characteristics of ‘backward tracts’ or excluded or partially excluded areas, which corresponded to the Scheduled areas of the Constitution, were, therefore, the presence of substantial element, of tribal population in the area the backwardness and, therefore, the special need for protection of the inhabitants of the area, especially the tribal population, which was both primitive and backward.

47. Now, judged by the aforesaid criteria of the existence of substantial element of tribal population, their presumed backwardness and the need for special protection, the action of the President in declaring Dhalbhum Sub-Division a part of Scheduled areas of the State cannot, in my opinion, be regarded as arbitrary or capricious. That there is a substantial element of tribal population in Dhalbhum Sub-Division is evident. According to the 1971 Census, the total population of Dhalbhum Sub-Division was 10,64,361 (vide page 19 of the Census 1971, Series 4 — Bihar, District Census Handbook of the Singhbhum District), and the total number of persons belonging to the Scheduled Tribes in that Sub-Division was 3,43,136 (vide ibid, Appendix to Table C-III Part B, page 235). In other words, as stated in the counter-affidavit on behalf of respondents Nos. 1 to 4, the Scheduled Tribes constitute approximately 33 per cent of the total population of the Sub-Division. According to the same Appendix to Table C-VIII Part B, the total number of illiterate persons among the Scheduled Tribes of the Sub-Division was 3,02,543. The 1971 Census further discloses that out of the total tribal population, only 41,070 persons were residing in urban areas and the vast majority, namely, 3,02,066 were residing in rural areas, and that the number of the persons of the Scheduled Castes, who were workers, including those who were cultivators and agricultural labourers, was 1,25,684 (95,459 males plus 30,225 females) and the number of non-workers was 2,17,452 (75,856 males plus 1,41,596 females (ibid pages 226-227). There was, therefore, a large percentage of unemployment and illiteracy among the tribal population and the overwhelming majority of the tribal population was concentrated in rural areas. Any person could, therefore, reasonably conclude that the aforesaid population was backward, and the vast majority being illiterate, was also in need of protection. Further, the Final Report of the Survey and Settlement Operations in the district of Singhbhum (1958-1965) (hereinafter called the Survey and Settlement Report), prima facie, shows that in the Dhalbhum Sub-Division, where 2,44,453.60 acres of land stood recorded in the names of Adivasi tenants and only 1,96,099.40 acres in names of non-Adivasi tenants (Survey and Settlement Report, Table XIV, page 151), there had been illegal transfer of lands of Scheduled Castes/Scheduled Tribes in contravention of Section 46 of the Chhotanagpur Tenancy Act on a very large scale. According to the Survey and Settlement Report, out of 31,880.12 acres of land transferred by tenants through registered deeds in Singhbhum District, 18,739.99 acres were transferred in Dhalbhum Sub-Division alone (Survey and Settlement Report, Table XIV, page 149) and that out of 18,266.07 acres of raiyati lands in forcible and illegal possession in the Singhbhum district, 13,904.58 acres were situate in Dhalbhum Sub-Division of the district (Survey and Settlement Report, Table XIV, page 152). The large area of illegal occupation of their lands coupled with the circumstance that the tribals owned the major portion of the land reinforces the need for protection of the tribal population of the Sub-Division.

48. The only circumstances relied upon by the petitioners as showing that Dhalbhum Sub-Division was not a backward area are the existence of some of the biggest industries of the country in the area, namely, the Tata Complex, the Adityapur Industrial Area, the Indian Copper Corporation Limited Industrial Complex at Chatshila and the existence in the area of educational institutions, including medical and general colleges, imparting general and technical education. I do not think that merely because a large number of industries are located in the area, the area must be regarded as advanced and developed area, Bihar has one of the largest concentration of heavy industries and mining areas in the entire country, but it is well known that it is economically one of the most backward regions of the country. The Survey and Settlement Report shows that during the period, the main occupation of the people of the district of Singhbhum was agriculture, over 80 per cent of them depending upon it for their livelihood. The agricultural population does not directly benefit from industries. It cannot, therefore, be held :that the petitioners have succeeded in establishing that the action of the President in including Dhalbhum Sub-Division within the Scheduled areas of the State of Bihar is arbitrary or capricious. This contention must, therefore, also fail.

49. I have dealt with the various contentions of Sri Ghosh in some detail, not because the contentions were substantial and raised difficult questions for decision, but out of deference to the arguments of Sri Ghosh and because the case was referred to a Special Bench.

50. In the result, the application is Without merit and must be dismissed. As the contentions raised, though far reaching, were essentially unsubstantial I think the contesting respondents are Entitled to their costs. I would accordingly, dismiss the application with costs, Hearing fee Rs. 250/-.

Satyeshwar Roy, J.

51. In this writ application the petitioners have challenged the jurisdiction of respondent No. 2 to initiate the proceedings in which the petitioners have been served with notices to show cause as to why the land of different plots mentioned in the notices should not be restored to the respondents, who are members of Scheduled Tribes. The notices are Annexure T series to the writ application. According to the petitioners, the notices were issued in proceedings initiated under the provisions of Chhotanagpur Tenancy Act, 1908, as amended by the Bihar Scheduled Areas Regulation, 1969. The jurisdiction has been challenged on the ground that the Fifth Schedule to the Constitution (Amendment) Act, 1976, is ultra vires the power of Parliament and consequently the rescission of the Scheduled Areas (Part A States) Order, 1950, made by the President of India in exercise of the powers conferred on him by Paragraph 6 (i) of the Vth Schedule and issuance of a fresh order, namely, the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977, the relevant portion of which is Annexure ‘2’ to the writ application, is ultra vires the powers of the President. The jurisdiction of respondent No. 2 has also been challenged on the ground that Section 71A, inserted in the Chhotanagpur Tenancy Act, 1908 (in short, ‘the C. N. T. Act’) by the Bihar Scheduled Areas (Regulation 1 of 1969) is ultra vires the powers of the Governor of Bihar. The interpretation of the third proviso to Section 71-A of the C. N. T. Act and ils applicability to the transfers made in favour of the petitioners are also in question in this application.

52. This case was listed before a Division Bench for hearing. The Division Bench by order dated the 30th July, 1982, observed that the case be heard by a Full Bench and this is how the case was listed for hearing before this Bench.

53. The facts relevant for appreciating the points raised on behalf of the petitioners are that the plots in question are situate within the Sub-Division of Dhalbhum in the district of Singhbhum. The C. N. T. Act at all relevant time was applicable to Dhalbhum Sub-Division. On 26th of January, 1950, the President, in exercise of the powers conferred on him by Paragraph 6 (i) of the Vth Schedule, issued an order known as ‘the Scheduled Areas (Part A States) Order, 1950, “(the Order of 1950) declaring the areas specified in that Order to be Scheduled areas in the State of Bihar. By that Order, Singhbhum district, excluding Dhalbhum Sub-Division, was declared as ‘Scheduled Area. In February, 1969, the Governor of Bihar, in exercise of the powers conferred on him by Paragraph 5 (2) of that Schedule, made regulations known as ‘the Bihar Scheduled Areas Regulation, 1969,’ (Bihar Regulation No. 1 of 1969). By this Regulation, for the peace and good government of the Scheduled areas, the Governor of Bihar made certain provisions and amended certain taws in their application to Scheduled areas. By this Regulation, inter alia, second column of Article 65 of the Limitation Ad, 1963, was amended by inserting at the end of that column the following:

“but thirty years in respect of immovable property belonging to a member of Scheduled Tribes as specified in Pan III of the Schedule to the Constitution (Scheduled Tribes) Order. 1950.” and in C. N. T. Act Section 71-A was inserted. Under Section 71-A power has been given to the Deputy Commissioners in Scheduled areas to restore possession of raiyati land to the member of Scheduled Tribes, if such land was transferred in contravention of Section 46 or any other provision of the C. N. T. Act or by fraudulent method including a collusive decree of civil court. By Fifth Schedule to the Constitution (Amendment) Act, 1976, (Act 101′ of 1976) in Paragraph 6 (2) of the Vth Schedule two clauses, namely, Clause (aa) and clause (d) were inserted with effect from 7-9-1976. By Clause (aa) power has been given to the president by order to increase the area of a Scheduled area in a State after consultation with the Governor of that State and by Clause (d) power has been given to him by order to rescind any order and in consultation with the Governor of the State concerned to make fresh order redefining the area which is to be Scheduled area. In exercise of this power the President rescinded the Order of 1950 and made an order known as Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 (the Order of 1977) by which the whole of Singhbhum District was declared as Scheduled area. This order came into force on 31-12-1977. From that date Dhalbhum Sub-Division became Scheduled area. Consequently, Bihar Scheduled Areas Regulation, 1969, (Bihar Regulation 1 of 1969) also came into force in that area from that date.

54. It was contended on behalf of the petitioners that insertion of clauses (aa) and (d) in Paragraph 6 (2) in the Vth Schedule of the Constitution by Act 101 of 1976 is ultra vires, for by these insertions the parliament has destroyed the basic features of the Constitution. ‘This submission is devoid of any merit. Vth Schedule to the Constitution is not a basic feature of the Constitution. It is a temporary feature and will continue so long as protection will be required to be given to the members of Scheduled Tribes in Scheduled areas. Paragraph 7 (i) of the Vth Schedule empowers the Parliament by law to amend by way of addition, variation or repeal any of the provisions of that Schedule. Paragraph 7 (2) provides that no such law as mentioned in Paragraph 7 (i) shall be deemed to be an amendment of the Constitution for the purpose of Article 368. For the purpose of amendment of the provisions of Vth Schedule the procedure laid down in Article 368 is not required to be followed. On no account, therefore, Vth Schedule can be held to be basic feature of the Constitution. It was contended on behalf of the respondents, State of Bihar and the Union of India, that the Parliament has un-limited power under Paragraph 7 (i). It is true that paragraph 7 gives powers to the Parliament to make law to add, vary or repeal any of the provisions of the Schedule, In my opinion, there is no limitation on the Parliament in this regard. The first contention of the petitioners fails.

55. It was then contended on behalf of the petitioners that Act 101 of 1’976, by which Clauses (aa) and (d) were inserted in Paragraph 6 (2) of Vth Schedule, is ultra vires because that Act does not lay down any guideline to be followed by the President for increasing the area of any Scheduled area or rescinding an earlier order and make fresh order redefining the area. It was further contended that in these clauses also no guideline has been laid down by the Parliament and the power given to the President is unbridled and unlimited. It was urged on behalf of the petitioners that Dhalbhum Sub-Division is one of the most industrialised area not only in the district of Bihar but in the whole country. The Tata Industrial complex, one of the biggest industrial establishments, is situated at Jamshedpur within Dhalbhum Sub-Division. The Hindustan Copper Corporation Limited has its industrial complex within this Sub-Division. The Atomic Energy Coin-mission also has an industrial complex within this Sub-Division. There are several educational institutions, including Medical College, in this Sub-Division. It was further contended that this Sub-Division, ex-economically, politically and culturally, cannot be said to be an area which requires special protection under the Vth Schedule. On the basis of these facts the petitioners contended that inclusion of Dhalbhum Sub-Division in the Scheduled area was mala fide exercise of the powers by the President.

56. Paragraph 6 of the Vth Schemata before amendment read as follows:–

“6 (1). In this Constitution, the expression “Scheduled Areas” meane such areas as the President may by order declare to be Scheduled Areas.

(2) The President may at any time by order –

(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;

(b) alter, but only by way of rectification of boundaries, any Scheduled Area;

 (c) on any alteration of the boundaries of a State or en the admission into the Union or the establishment of a new State, declare any territory not previously included  in any     State to be,  or to  form  part  of,   a Scheduled  Area; 
 

 ............."   
 

 Clause (aa), which has been inserted by Act 101 of 1976, after Clause (a), reads as follows:-- 
  "(aa) increase the area of any    Scheduled area in a State after consultation with  the Governor of that  State." 
 

  and Clause (d) so inserted after Clause (c) reads  as  follows:-- 
  (d) rescind, in relation to any State or Stales, any order or orders made wider this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas; 
 

 Paragraph 7 reads as follows:-- 
   

 "7. (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule, and when the schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended. 
 

 (2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purpose of Article 368."  
 

57. It is interesting to note the language of paragraph 6 (1) which gives power to the President; to declare any area as Scheduled Area. No guideline has been laid down in that paragraph for the President to follow before declaring any area as Scheduled Area. The framers of the Constitution left this to the., sole discretion of the President. The petitioners have no grievance when an order is made by the President declaring any area as Scheduled area. The petitioners contended that once that order is made under paragraph 6 (1), the President can neither increase the area nor redefine the same by rescinding the earlier order as contemplated under paragraph 6 (2) (aa) and (d).

58. For the purpose of an order under paragraph 6 (1) the Constitution does not provide for the President to consult any constitutional functionary before making an order, whereas for the purpose of Clause (aa) and for the latter part of Clause (d); the President may make an order after consultation or in consultation with the Governor of the State concerned. The procedure to consult the Governor is not an empty formality. The importance of this consultation lies in the fact that the Governor of the concerned State is in a better position to advise the President about relevant matters. Constitutional functionary like Governor is expected, to give his honest advise and this will enable the President to decide whether he should act under those Clauses of paragraph 6 (2), For other Clauses of paragraph 6 (2) there is no mandate on the President to consult any constitutional functionary or authority before making an order. In my opinion, Act 101 of 1’97G cannot be held to be ultra vires on the grounds urged by the petitioners.

59. There is no dispute and it was agreed by the learned counsel appearing on behalf of the parties that Scheduled Areas contemplated in Vth Schedule shall be the area where there is substantial population of members of the Scheduled Tribes. It was urged by the learned Advocate-General that if it is found by the President that there is substantial population of members of the Scheduled Tribes concentrated in a particular area and the President after consultation with the Governor of the State concerned declares that area as ‘Scheduled Area’, the same is not justiciable. As already noticed, the power of the President under paragraph 6 (1) is not fettered in any manner. The President is the sole Judge to decide whether an area should be declared as a Scheduled Area. The Court with not sit in judgment over the decision of the President. Again, under paragraph 6 (2) (aa) and (d) the President is the sole Judge with this difference that to Clause (aa) he may make order only after consultation with the Governor of the Slate concerned and for Clause (a) the order must be in consultation of the Governor. The petitioners have not contended that the Governor of Bihar in this case was not consulted before the Order of 1977 was issued.

60. Alternatively, it was contended by the learned Advocate-General that although in 1950 Dhalbhum Sub-Division was excluded, but, on the basis of the materials the President in 1977, was satisfied that that Sub-division should be declared as a Scheduled Area. It is true that the materials relied upon by the learned Advocate-General were not part of the counter-affidavit filed in this case, but, as he relied for this purpose only on public records, he was allowed to refer to the same with right to the petitioners to rebut it. With reference to the Census Report of 1974 the learned Advocate General submitted that there is substantial number of members of Scheduled Tribes in Dhalbhum. Learned Advocate General also relied on the report of Scheduled Area and Scheduled Tribes Commission appointed by the President on 28th April, 1960, under Article 339 of the Constitution. One of the terms of reference of the Commission was to suggest the principle to be followed for declaring any territory to be or to form part of Scheduled Area or for directing any territory that shall cease to be or cease to form a part of a Scheduled Area. He also relied on the Final Report of Survey and Settlement Operations in the district of Singhum during the period of 1958-64. On the basis of these reports the learned Advocate General contended that there were enough materials before the President for declaring Dhalbhum Subdivision as a Scheduled Area. Mr. Ghose, learned counsel appearing on behalf of the petitioners, did not bring on record any material to controvert the factual statements made in those reports. All these reports are post 1950. In view of this also, it cannot be held that the President could not have declared Dhalbhum Sub-division as Scheduled Area.

61. With regard to Bihar Regulation 1 of 1969 it was contended that the power of the Governor in paragraph 5 of the Vth Schedule is a delegated power and, therefore, the Court has power to see whether the delegate has acted in excess of its power. This question is no more res Integra. In Ram Kirpal Bhagat v. State of Bihar (AIR 1970 SC 951) similar question was raised before the Supreme Court. The words “for the peace and good government” occurring in paragraph 5 (2) of that Schedule was held to embrace the widest power to legislate for the peace and good government for the Scheduled Area. It was further held that the Regulation made by the Governor under that paragraph was not a piece of delegated legislation or a conditional legislation and the Regulation so made emanates from the legislative authority in the plenitude of power and there is no aspect of delegated or conditional legislation. Power of Governor under that paragraph is, therefore, plenary, and it is not a delegated piece of legislation. There is no question of the delegate exceeding the power conferred on him. Therefore, the vires of that Regulation cannot be challenged on this ground.

62. This takes us to the applicability of 3rd proviso to Section 71-A of the C. N. T. Act to the transfers made in favour of the petitioners. Section 71-A reads as follows :–

“71-A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred :–

If at any time it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyal who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provisions of this Act or by any fraudulent method including decrees obtained in suits by fraud or collusion he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir and if such heir is not available or is not willing to agree to such restoration resettle it with another raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of an abandoned holding.

Provided that if the transferee has within 30 years from the date of transfer constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the Order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed.

Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation 1969, he may. notwithstanding any other provisions of the Act, validate such a transfer where the transferee cither makes available to the transferor an alternative holding or portion thereof, as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for, rehabilitation of the transferor :

Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or resettled, he shall require the transferor or his heir or another raiyat as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner, having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable.”

63. By this section the Deputy Commissioner has been empowered to restore land belonging to raiyat who is member of the Scheduled Tribes, if the transfer was made in contravention of Section 46 or any provisions of C. N. T. Act or by any fraudulent method including decrees obtained in suits by fraud or collusion. Section 46 of the C, N. T. Act puts a bar on transfer of a raiyati interest by a member of Scheduled Tribes by mortgage or lease, for any period expressed or implied which exceeds or might in any possible event exceed five years or by sale, gift or any other contract or agreement except with the previous sanction of the Deputy Commr. The member of Scheduled Tribes, however, may enter into bhugut bandha mortgage of his holding for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act for any period not exceeding fifteen years. In this case, however, we are not concerned with the bhugut bandha mortgage. From the averments made in the writ application, it appears that the petitioners claimed the plots by different ways. Some plots was surrendered by the raiyats to the erstwhile landlord and the landlord settled the same with one or other of the petitioners. Some plots were acquired by the erstwhile landlord in execution of rent decree passed against the raiyats and thereafter the landlord settled the plots to one or other of the petitioners. Some of the plots were acquired by the erstwhile landlord in execution of mortgage decree and thereafter he settled the same with one or other of the petitioners. Some of the petitioners filed title suits for declaration of title on the basis of adverse possession with regard to some of the plots and those suits were decreed on the basis of admission made by the raiyats of the title of the plaintiffs of those suits. As noticed above, the petitioners challenged the initiation of the proceedings before filing any show cause in response to the notices served against them. I have indicated the basis of the claims of the petitioners for the appreciation of the points raised in this writ application and we are not concerned in this case with the correctness or otherwise of the various methods by which the petitioners claimed to have acquired the plots in question.

64. It was contended on behalf of the petitioners that Dhalbhuan sub-division was declared Scheduled Area with effect from 31-12-1977. Section 71-A of the C. N. T. Act cannot toe made applicable to the cases where transfer has been made to the petitioners prior to that date. Alternatively, it was urged en behalf of the petitioners that even if there was any defect in the title of any of the petitioners to the plots in question and that section is applicable to transfers made prior to 31-12-1977, but, as they have been in adverse possession for more than 12 years from the date of transfer, no order or restoration can be passed in respect of those plots. Further, even if in such cases the land can be restored, it can be restored only after payment of compensation as envisaged in 3rd proviso.

65. Admittedly, phalbhum Sub-division was declared Scheduled Area with effect from 31-12-1977 and Bihar Regulation 1′ of 1969 came into force in that area from that date. In view of these facts it was urged on behalf of the petitioners that the Deputy Commissioner cannot restore any land transferred prior to 31-12-1977. Reliance was placed in Gaddam Narsa Reddy v. Collector Adilabad District (AIR 1982 Andh Pra 1) (FB) and Bhauri Lal Jain v. Sub-divisional Officer (AIR 1973 Patna 1) (FB) From the judgment of Reddy’s case (supra) it appears that the Andhra pradesh Scheduled Areas Land Transfer Regulation 1 of 1969 was made to regulate the transfers of lands in Scheduled Areas by member of Scheduled Tribes to a non-member. The Regulation came into force in the Scheduled Areas in some of the districts of Andhra Pradesh. This Regulation came into force in Telengana Area on 1st of December, 1963. Prior to that, in Telengana Area there was no bar on the transfer of lands by member of Scheduled Tribes to a non-member. It was held in that case that the transfers made in Telengana Area prior to coming into force of that Regulation cannot be declared as null and void as the Regulation was not retrospective. Section 46 of the C.N.T. Act. i. e., the bar of transfer by member of Scheduled Tribes to a non-member of the then Chotanagpur Division (now North Chotanagpur Division and South Chotanagpur Division), which included the whole of the Dhalbhum Subdivision was there from long before. Reddy’s case has, fherefore, no application to the present case. In Bhauri Lal Jain’s case (supra) one of the points the Full Bench considered was the effect, of Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, before amendment by the Bihar Regulation 1 of 1969. It was held that before the amendment of the tenancy law in the Santhal Paraganas by 1949 amendment, a person could acquire title by adverse possession under an invalid transfer. That right was taken away by the amending Act of 1949. The bar against transfer by members of Scheduled Tribes to non-members was already there in Dhalbhum Sub-division and a person could acquire title by adverse possession. This position is not in dispute. Bhauri Lal Jain’s case (supra) in respect of first con tention of the petitioners, as noticed in paragraph 14, is of no help to the petitioners as this question did no! arise in that case. Section 71A of the C. N. T. Act deals with transfer made, i.e., past transaction. This shall include transfers made prior to 31-12-1977. That section, therefore, shall apply to all such cases where transfers were made under the conditions envisaged in that section.

66. With regard to the second contention of the petitioners as noticed in paragraph 14 above, in view of clear provision in the third proviso to Section 71-A of C. N. T. Act, this contention is devoid of any merit.

67. The next question that arises is the third contention as noticed in paragraph 14 above. This involves interpretation of the 3rd proviso to Sec. 71-A It will be noticed that that proviso empowers the Deputy Commissioner to restore land even where the transferee has acquired title by “adverse possession”. It was urged that “adverse possession” will mean adverse possession for 12 years. It was contended on behalf of the petitioners that if the Deputy Commissioner was satisfied that any person has acquired title by adverse possession by remaining in the land for 12 years and that the transferred land should be restored or re-settled, compensation as envisaged in that proviso was payable to the transferee. According to the petitioners, Article 65 of the Limitation Act. 1963, as amended by Bihar Regulation 1 of 1969, shall not apply in such cases. They challenged the correctness of the decision of Bhupati Mishra v. The Commissioner, Chotanagpur Division (1982 BLT (Rep) 3) where it was held that “adverse possession” in the third proviso shall mean ‘adverse possession for 30 years’. There is no dispute that statute shall be prospective if not expressly or by necessary intendment made retrospective. There is also no dispute that if the right to recover did not subsist and was extinguished under the provisions of the Limitation Act on the date the amendment Act came into force, the right cannot be revived if the amendment Act is not retrospective. A vested right can be taken away only by retrospective operation of such law.

68. In order to see whether “adverse possession” in the 3rd proviso will mean adverse possession for 12 years or of 30 years, Section 71-A must be read as a whole, for it is most natural and genuine exposition of a statute to construe one part of a section by another part of the same section. A statute is deemed to be retrospective which takes away or impairs any vested right acquired under the existing laws or creates new obligation or imposes a new duty or attaches any new disability in respect to transaction or considerations already past. “If, however, the language or the dominant intention of the enactment so demands, the Act must be constructed so as to have a retrospective operation, for ‘the rule against the retrospective effect of statutes is not rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject matter with which the statute is dealing'”. (Maxwell on the Interpretation of Statutes. 12th Edition). Further, if there is conflict between two provisions in the same enactment, the Court will endeavour to give effect to both the provisions by giving a harmonious construction so as to avoid the conflict between the two and advance the purpose for which it was enacted.

69. The history of the tenancy laws in Chotanagpur has been noticed in detail in Bhupati Mishra’s case. I need not, therefore, repeat the same. Suffice to say that, notwithstanding the restriction put on transfer of raiyati lands by member of Scheduled Tribes, various devices were adopted to acquire 1heir lands, which, prima facie, were not in contravention of the provisions of the C. N. T. Act. One of the methods was to arrange for surrender of his raiyati holding by member of Scheduled Tribes to the landlord and to get settlement of the same thereafter. Surrender as such is not a transfer. But it has been repeatedly held by this Court in various decision that if the surrender was brought about by a person in order to take the settlement of the same, the surrender was held to be a device to circumvent the provisions of Section 46 of the C. N. T. Act. Another method adopted was to file a suit for declaration of title on the basis of the adverse possession. These suits were invariably filed in collusion with the raiyats belonging to Scheduled Tribes as a result of which in all the suits compromise petitions were filed and the suits were decreed in terms of the compromise declaring the title of the person not a member of Scheduled Tribes. The intention of inserting Section 71-A in the C. N. T. Act and amendment of Article 65 of the Limitation Act 1963 was to restore the lands transferred by adopting such devices.

70. There are three provisos to Section 71-A. The first proviso provides for restoration of the land without payment of compensation if any building or structure on such raiyati holding has been constructed within 30 years from the date of transfer. If ‘adverse possession’ in the third proviso shall mean 12 years, as contended by the petitioners, then there shall be apparent conflict between the first and the third . proviso. In the former, even if the transferee is in possession of the land for more than then 12 years but less than 30 years, he shall not be entitled to any compensation either for the land or for any building or structure constructed thereon and under the latter, if the transferee is in possession for only 12 years he shall be entitled to compensation for the land and for the improvement effected on the same. Further, the second proviso provides for validating the transfer if the transferee has made a substantial structure or building in such holding op portion thereof, provided the transferee either makes available to the transferor an alternative holding or portion thereof of the equivalent value or pays adequate compensation. The first proviso and the second proviso both deal with building or structure constructed on the transferred land. In the first proviso there is no provision for payment of compensation if the building or structure is not substantial and in the second proviso there is provision for payment of compensation if the building or structure is substantial, In the second proviso there is no mention of any period of limitation. Since both the first proviso and the second proviso deal with structure or building, in the former unsubstantial and in the latter, substantial, it must be held that the second proviso covers the cases where construction was made within 30 years from the date of transfer. If, in the first proviso and the second proviso the period is 30 years, logical conclusion “will be that “adverse possession” in the third proviso must mean adverse possession for more than 30 years and not 12 years as contended by the petitioners.

71. It may be viewed from another angle. According to the clear language in the first proviso a transferee shall be entitled to no compensation even if he made the construction within 30 years from the date of transfer. If the Y petitioners’ contention is accepted with regard to third proviso, great injustice will be caused to the transferee whose case is covered by the first proviso, for he is also in possession for more than 1.2 years from the date of transfer. It is a cardinal rule of interpretation of statutes that that interpretation shall be adopted which shall avoid injustice (Craies on Statute; Law, 7th Edition, page 94).

72. In Bhaurj Lal Jain’s case (AIR 1973 Patna 1) (supra) the vires of third proviso was challenged. The Full Bench held that it was a valid piece of legislation and was not ultra vires the Constitution. In that case both the parties contested the case treating “adverse possession” in the third proviso as adverse possession for 39 years. In my opinion, compensation as envisaged in the third proviso is payable to the transferee if the Deputy Commissioner is satisfied that the transferee was in possession of the land for 30 years or more. With respect, Bhupati Mishra’s case must be held to have laid down the law correctly. 3rd proviso to Section 71-A is retrospective in operation.

73. Admittedly, Bihar Regulation 1 of 1969 came into force in Dhalbhum Sub-Division with effect from 31-12-1977. It was urged on behalf of the petitioners that if on that date the transferee has remained in possession adversely for 30 years, he shall be entitled to compensation as provided in that proviso. This contention was not seriously challenged on behalf of the respondents and the contention made on behalf of the petitioners appears to be correct.

 74.   To sum  up, my conclusions are: .    (i) Vth Schedule to    the    Constitution (Amendment)    Act,      1976,    is   a    valid piece of legislation. 
   

 (ii) Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 is a valid piece of legislation, 
 

 (iii) Section 71-A inserted in the Chotanagpur Tenancy Act, 1908, by Bihar Regulation 1 of 1969, is a valid piece of legislation. 
 

 (iv) In the third proviso to  Section 71-A of the C. N. T. Act "adverse possession" shall mean adverse possession for 30 years from "the date of transfer and the proviso is retrospective in operation. 
 

 (v) In Dhalbhum Sub-Division the period for the purpose of adverse possession shall be computed from the date of transfer to 3lst December, 1977, and thereafter.  
 

 75. In the, result, the application is dismissed, taut, in, the circumstances, without costs. Respondent No. 2 shall now proceed to dispose of the applications pending before it according to law after giving an opportunity    to the petitioners  to show  cause. 
 

  Uday Sinha, J.  
 

76. I have had the benefit of going through the judgments of two of my brethren. I agree with both of them. In agreement with them, I am of the view that the application has no merit and must be dismissed. In view of the two elaborate judgments just delivered, I do not consider it necessary to deliver my own judgment. I should, however, only like to state that the attack of Mr. B. C. Ghose, learned counsel for the petitioners on the correctness of Bhupati Mishra’s case (1982 BLT :(Rep) 3) (supra) is ill-founded. After the amendment of Article 65 of the Limitation Act, the period of possession which may give rise to a claim of adverse possession must be read as thirty years. The fact that a person has been adversely in possession for twelve years cannot be of any consequence. No costs.