{"id":77928,"date":"2009-07-21T00:00:00","date_gmt":"2009-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-anr-vs-peoples-union-for-civil-liberties-on-21-july-2009"},"modified":"2016-05-17T20:17:32","modified_gmt":"2016-05-17T14:47:32","slug":"state-of-kerala-anr-vs-peoples-union-for-civil-liberties-on-21-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-anr-vs-peoples-union-for-civil-liberties-on-21-july-2009","title":{"rendered":"State Of Kerala & Anr vs Peoples Union For Civil Liberties … on 21 July, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Kerala & Anr vs Peoples Union For Civil Liberties … on 21 July, 2009<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Mukundakam Sharma<\/div>\n
                     STATE OF KERALA AND ANOTHER\n                          v.\n  PEOPLES UNION FOR CIVIL LIBERTIES, KERALA STATE\n                  UNIT AND OTHERS\n          (Civil Appeal Nos.<\/a> 104-105 of 2001)\n                          JULY 21, 2009\n     [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]\n\n   The Judgment of the Court was delivered by\n\n   S.B. SINHA, J.\n<\/pre>\n
ISSUE<\/p>\n
   1. Effect of a writ of or in the nature of mandamus issued by a
\nHigh Court directing implementation of an enactment vis-`-vis a
\nsubsequent legislation altering or modifying the right of the
\nbeneficiaries under the former Act, inter alia, is the question
\ninvolved in these appeals.\n<\/p>\n
   They arise out of a judgment and order dated 24th August,
\n2000 passed by a Division Bench of the High Court of Kerala at
\nErnakulam.\n<\/p>\n
BACKGROUND FACTS<\/p>\n
   2. The State of Kerala enacted the Kerala Scheduled Tribes
\n(Restriction on Transfer of Lands and Restoration of Alienated
\nLands) Act, 1975 (Act No.31 of 1975) (for short `the 1975 Act’) with
\nthe object of providing restriction on transfer of land by Members of
\nScheduled Tribes in the State of Kerala and for restoration of
\npossession of lands alienated by such members and for matters
\nconnected therewith.\n<\/p>\n
   The said Act received the assent of the President of India. It
\nwas included in the Ninth Schedule of the Constitution of India,
\nbeing item No.150, by the Constitutional 40th Amendment Act. It
\nwas published in the Kerala Gazette Extraordinary on 14th
\nNovember, 1975. However, only on 24th January, 1986 a
\nNotification was issued bringing the said Act into force with
\nretrospective effect from 1st January, 1982.\n<\/p>\n
RULES UNDER THE SAID ACT<\/p>\n
    3. Kerala Scheduled Tribes (Restriction on Transfer of lands
\nand Restoration of Alienated Land) Rules, 1986 (1986 Rules) were
\nframed for effective implementation of the 1975 Act and were
\npublished in the Kerala Gazette Extraordinary on 18th October,
\n1986.\n<\/p>\n
PROCEEDINGS<\/p>\n
    4. Members of the Scheduled Tribes filed applications for
\nrestoration of their lands in the year 1988 in terms of the provisions
\nof the 1975 Act and the 1986 Rules.\n<\/p>\n
    As the said Act was not implemented in letter and spirit, one
\nDr. Nallathampy Thera filed a writ petition which was marked as
\nO.P. No.8879 of 1988 praying inter alia for issuance of a Writ of
\nMandamus compelling the State to implement the provisions of the
\nAct and directing the concerned authorities to deal with and
\ndispose of the applications filed therein. Before the High Court the
\nlearned Additional Advocate General appearing for the State
\nsubmitted that :\n<\/p>\n
    “utmost steps would be taken for the disposal of the
\n    applications and that the Act would be enforced in all its
\n    rigour.”\n<\/p><\/blockquote>\n
   Relying on or on the basis of the said statement, O.P. No.
\n8879 of 1988 was disposed of by the High Court on 15th October,
\n1993, inter alia, calling upon the State to give directions to the
\nAuthorities under the 1975 Act to dispose off the applications
\npending before them within 6 months from the said date.\n<\/p>\n
   The State, however, did not comply with the said directions
\nwithin the said time frame. Extensions of time were sought for
\ncomplying with the said directions. By the said process, a period of
\ntwo years lapsed.\n<\/p>\n
   Another application for extension of time was filed for
\nimplementation of the Act and the High Court granted six months’
\ntime but issued certain directions inter alia for the purpose of
\nmonitoring the progress of the implementation of the Act.\n<\/p>\n
   The said conditions are as under:-\n<\/p>\n
    “(i) The State shall ensure that all the applications are
\n           disposed of within the extended time.\n<\/p>\n
    (ii)   The State shall immediately communicate copies of this
\n           order to the Revenue Divisional Officers of all the
\n           Districts for compliance.\n<\/p>\n
    (iii) The Authorities under the Act, i.e., the Revenue
\n           Divisional Officers of the concerned Districts shall file
\n           affidavits before this court once in a month showing the
\n           progress achieved in the disposal of applications during
\n           that month. The first of these affidavit showing the
\n           progress-made until 31.12.1995 shall be filed before
\n           15.1.1996. The next of the affidavits showing progress till
\n           31.1.1996 shall be filed before 15.2.1996 and so on.\n<\/p>\n
     (iv) The State shall provide the necessary back up and
\n          support to the Revenue Divisional Officers to complete
\n          the work within the extended time now granted.\n<\/p>\n
     (v) The State or any of the Revenue Divisional Officers shall
\n          be at liberty to approach this court in the event of any
\n          difficulty being felt in disposing off the applications.\n<\/p>\n
     (vi) It is seen from the affidavit filed by the Government that
\n          the pendency of applications in the Districts of Palakkad,
\n          Wayanad, Idukki and Kottayam is unusually large. The
\n          Revenue Divisional Officers of these Districts are
\n          directed in particular to dispose of all the applications
\n          within the extended time.”\n<\/p>\n
    Applications for restoration of lands which were pending were
\ndisposed of pursuant to the said directions. Appeals were filed in a
\nfew cases but in most of them the orders directing restoration of
\nlands became final.\n<\/p>\n
    Strangely however, no actual restoration of land was effected.
\nAnother application was filed by the writ petitioner on 1st March,
\n1996 complaining about non-implementation of the said order.\n<\/p>\n
    The learned Additional Advocate General once again gave an
\nassurance that the order of the authorities under the 1975 Act
\nwould be implemented. On or about 28th March, 1996 the High
\nCourt directed :-\n<\/p>\n
    “The learned Additional Advocate General assures the court
\n    that all out efforts will be made to dispose of all the pending
\n    applications within the time stipulated by this court and further
\n    that wherever there has been final orders passed, actual
\n    restoration will also be formal orders are necessary today. Post
\n    on 31.5.1996.”\n<\/p><\/blockquote>\n
                                                (emphasis supplied)”<\/p>\n
    Further affidavits were filed by the Revenue Divisional Officers
\nreporting progress in the disposal of the applications made under
\nthe Act.\n<\/p>\n
    On or about 13th August, 1996 the High Court issued the
\nfollowing directions :-\n<\/p>\n
    “(1) The Revenue Divisional Officers are directed to cause
\n    delivery of the properties covered by orders for restoration
\n    against which, no appeals are pending and in which no
\n    compensation is payable, forthwith and in any event within six
\n    weeks from today.\n<\/p><\/blockquote>\n
    (2) In view of the submission that the officers are meeting with
\n    resistance in restoring possession the State and the District
\n    Superintendents of Police of all Districts are directed to afford
\n    the needed protection to the Revenue Divisional Officers to
\n    carry out their duty of restoring possession to the Tribals.\n<\/p><\/blockquote>\n
    (3) The State and the Collectors of the various Districts are
\n    directed to make available to the Revenue Divisional Officers
\n    the necessary man power and support to carry out the
\n    implementation of the orders for restoration passed under the
\n    Act.\n<\/p><\/blockquote>\n
    (4) The Revenue Divisional Officers will file statements before
\n    this court by 30.9.1996 reporting compliance with direction
\n    No.1″\n<\/p><\/blockquote>\n
   An intra court appeal was preferred thereagainst. The matter
\nwas referred to a Full Bench. An order of stay was passed relying
\non or on the basis of a statement made before the Court that
\namendments to the 1975 Act were proposed to be made.\n<\/p>\n
   However, as the President of India declined to give his assent
\nto the Bill passed by the Legislature of the State of Kerala for
\namendment of the said Act, the order of stay was vacated.\n<\/p>\n
   The Full Bench on 21st May, 1998 passed the following order:-\n<\/p>\n
   ” Heard learned Additional Advocate General, Mr. T.
\n   Mohammed Youseff and Mr. A.X. Varghese, Advocate. The
\n   above application is filed to extend the order of stay granted in
\n   the Writ Appeal for a further period of six months from
\n   21.5.1998. This Court granted the interim order of stay since at
\n   the time the Bill passed by the Legislative Assembly of the
\n   State of Kerala was pending consideration before the Hon’ble
\n   President of India. It is now stated in the affidavit that the
\n   Hon’ble President of India has declined assent to the Bill
\n   passed by the State Legislative Assembly. In the light of the
\n   Hon’ble President of India having declined assent to the Kerala
\n   Scheduled Tribe (Restriction on Transfer of Lands and
\n   Restoration of Alienated Lands)Amendment Act, 1996, there is
\n   no justification for this court extending the order to stay granted
\n   earlier. The interim stay granted earlier is vacated.\n<\/p>\n
   2. The learned Single Judge, while disposing of C.M.P. No.
\n   28950 of 1995 in O.P. 8879 of 1988, was pleased to grant time
\n   till 30.9.1996 for reporting compliance with direction No.1 in the
\n   order. The time was extended from time to time for compliance
\n   with the directions till the order of stay was granted. Now that
\n    the order of stay having been vacated, we grant six months
\n    time to the State for carrying out the direction contained in the
\n    order of the learned single judge dated 13th August 1996,
\n    passed in C.M.P. No. 28950 of 1995, without prejudice to the
\n    right of the Government in considering the various aspects of
\n    the matter to bring forward suitable legislation with suitable
\n    changes, if they so desire.”\n<\/p>\n
                                                  (emphasis added)<\/p>\n
    On or about 23rd November, 1998 an application for initiating
\nproceedings under the Contempt of Courts Act, 1971 was filed
\nagainst the State and its officers on the premise that orders of the
\nHigh Court had not been complied with. A notice was issued
\ntherein.\n<\/p>\n
    A petition was filed by the State for extension of the period by
\nsix months from 21st November, 1998. However, a statement was
\nmade before the Full Bench that a new Bill would be introduced
\nbefore the Legislative Assembly in terms whereof a permanent
\nsolution to the problem of alienation of tribal lands which had taken
\nplace during the period from 1.1.1960 and 1.1.1986 shall be dealt
\nwith. The Full Bench, by its order dated 6th January, 1999,
\ndirected :-\n<\/p>\n
    “This petition has been filed by the State to extend the time
\n    (sic) granted already by a period of six months from 21.11.98.
\n    We have perused the affidavit and heard the arguments of
\n    both sides. We have also heard Dr. P. Nalla Thampy Thera.
\n    He opposed the petition for extension of time tooth and nail.<\/p><\/blockquote>\n
    This Court has already granted six month’s time. The State
\n    has explained the reasons for its inability to introduce the new
\n   bill within the time granted earlier. We are satisfied with the
\n   reasons given in the affidavit. It is now stated in the affidavit
\n   that the Legislative Assembly is expected to commence its
\n   next session on 22.1.99 and that the new bill formulated by the
\n   Government will be introduced in this session. According to the
\n   Government, the new bill is expected to find a permanent
\n   solution to the problem of alienation of tribal lands which had
\n   taken for the period from 1.1.1960 to 1.1.1986. Therefore, they
\n   pray that in the interest of justice the State may be granted
\n   extension of time to introduce the Bill in this session.\n<\/p>\n
   2. We have considered the rival submissions and are of the
\n   opinion that in the interest of justice, the time already granted
\n   has to be extended by three months from today. As already
\n   noticed, the Assembly session is to commence on 22.1.1999
\n   and the State is proposing to introduce the Bill in this session.\n<\/p>\n
   3. In view of the above, the time already granted by this Court
\n   is hereby extended by three months from today. The State
\n   shall introduce the Bill in this session of the Assembly and
\n   complete all the other formalities within the time now granted.
\n   We make it clear that there will be no further extension of time.
\n   The State is directed to pay cost of this petition to Dr. Nalla
\n   Thampy Thera which is fixed at Rs.5000\/-, by way of demand
\n   draft drawn in his name, within three weeks from today.”\n<\/p>\n
                                                (emphasis supplied)<\/p>\n
WRIT PROCEEDINGS<\/p>\n
   5. Indisputably the Legislature of the State thereafter enacted
\nthe Kerala Restriction on Transfer by and Restoration of Lands to
\nthe Scheduled Tribes Act, 1999 (for short `the 1999 Act’), which
\ninter alia deals with transfer and alienation of agricultural lands.\n<\/p>\n
    Constitutional validity of the 1999 Act, specially the proviso
\nappended to Section 5(1), Section 5(2), Section 6 and Section 22
\nwere challenged by filing two writ petitions; one marked as O.P.
\nNo.25332 of 1999 filed by Niyamvedi, respondent No.1 in Civil
\nAppeal No.105 of 2001 and another O.P. No.26499 of 1999 by
\nPeoples Union for Civil Liberties, Kerala State Unit, respondent
\nNo.1 in Civil Appeal No.104 of 2001.\n<\/p>\n
    In the aforesaid writ petitions counter-affidavits were filed on
\nbehalf of the Union of India supporting the stand of the tribes.\n<\/p>\n
    Malayora Karshaka Federation (appellant before us in C.A.
\nNo.899 of 2001) was impleaded as a party therein. By reason of
\nthe impugned judgment and order dated 24th August, 2000, the
\nHigh Court declared the aforesaid provisions as ultra vires.\n<\/p>\n
FINDINGS OF THE HIGH COURT<\/p>\n
    6. The High Court, while acknowledging, the legislative intent
\nof the State of Kerala, opined that it was colourable in nature as by
\nreason of the provisions of the 1975 Act and the orders passed in
\nfavour of the members of the Scheduled Tribes, a vested right
\naccrued to the members of Scheduled Tribes was destroyed by
\nreason of the provisions of 1999 Act.\n<\/p>\n
    Proviso to Sections 5(1), Section 5(2), Section 6 and Section
\n22 of the 1999 Act were held to be arbitrary. The said provisions
\nwere also held to be discriminatory and thus violative of Article 14
\nof the Constitution of India. The issue in regard to violation of
\nArticle 19(1)(e) of the Constitution of India was determined on the
\npremise that no sufficient material had been placed before the
\nCourt.\n<\/p>\n
    Inter alia relying on or on the basis of the decision of this Court
\nin Madan Mohan Pathak v. Union of India,<\/a> [ (1978) 2 SCC 50 ], the
\nHigh Court held that in effect and substance, by reason of the
\nprovisions of the 1999 Act, a judicial decision was sought to be
\nnullified.\n<\/p>\n
    The contention of the respondents that Presidential assent
\nhaving not been obtained, the 1999 Act was violative of Article 254
\nof the Constitution of India was, however, rejected. With regard to
\ncompliance of the requirements of Article 338 of the Constitution of
\nIndia, consultation with Scheduled Castes\/Scheduled Tribes
\nCommission was held to be not imperative.\n<\/p>\n
    Section 22 of the 1999 Act was held to be ultra vires Article 14
\nof the Constitution of India, having regard to the accrued rights of
\nthe members of the Scheduled Tribes in view of the issuance of
\nthe writ of mandamus issued, the High Court directed :-\n<\/p>\n
    “In the light of our discussion as above, we declare the proviso
\n    to Section 5(1), Section 5(2), Section 6 and Section 22 of the
\n    Kerala Restriction on Transfer by and Restoration of Lands to
\n    Scheduled Tribes Act, 1999, Act 12 of 1999 as unconstitutional
\n    and void. We strike down the proviso to Section 5(1), Section
\n    5(2), Section 6 and Section 22 of Act 12 of 1999. We direct the
\n    State and the Authorities under Act 31 of 1975 to implement
\n    the orders for restoration passed under the Kerala Scheduled
\n    Tribes (Restriction of Transfer of land and Restoration of
\n    Alienated Lands) Act, 1975, Act 31 of 1975 and restrain the
\n    State and the Authorities under Act 12 of 1999 from enforcing
\n   the proviso to Section 5(1), Section 5(2), Section 6 and Section
\n   22 of Act 12 of 1999.”\n<\/p><\/blockquote>\n
THE APPEALS BEFORE US<\/p>\n
   7. Civil Appeal Nos. 104-105 of 2003 have been filed by the
\nState of Kerala against the common judgment and order dated
\n24th August, 2000 passed by a Division Bench of the Kerala High
\nCourt in O.P. Nos. 25332 and 26499 of 1999 filed by Niyamavedi
\nand Peoples Union for Civil Liberties, Kerala State Unit striking
\ndown the proviso to Section 5(1), Section 5(2), Section 6 and
\nSection 22 of the 1999 Act.\n<\/p>\n
   Civil Appeal No.899 of 2001 has been filed by Malayora
\nKarshaka Federation Kerala Meenangadi (respondent No.7 before
\nthe High Court in O.P. No.25332 of 1999) against the aforesaid
\norder dated 24th August, 2000.\n<\/p>\n
   Civil Appeal No.7079 of 2001 has been filed by M. Mohan
\nKumar, Chief Secretary, Government of Kerala against the order
\ndated 4th December, 2000 passed by a Division Bench of the High
\nCourt in C.C.C. No. 542 of 1986 whereby the Court directed the
\nappellant to appear before it for framing charges against him in not
\ncomplying with the final direction issued by the Court on 18th
\nDecember, 1999.\n<\/p>\n
CONTENTIONS<\/p>\n
   8. Mr. T.L. Viswanath Iyer, learned senior counsel and
\nMr.Dayan Kishnan, Advocate, appearing on behalf of the
\nappellants would submit :-\n<\/p>\n
    (i)   The High Court committed a manifest error in holding
\n          that the 1999 Act suffers from the vice of colourable
\n       exercise of power or is otherwise mala fide despite
\n       holding that the Legislature of the State of Kerala had the
\n       requisite legislative competence therefor.\n<\/p>\n
(ii)   The members        of   the   Scheduled    Tribes     had   no
\n       fundamental or common law right to obtain restoration of
\n       possession of their lands which had already been
\n       alienated.\n<\/p>\n
(iii) Such a right having been conferred upon them by reason
\n       of the provisions of 1975 Act, the same could be taken
\n       away and\/or modified or altered by reason of a
\n       subsequent Act which comes within Entry 18 of the List II
\n       of Seventh Schedule of the Constitution of India.\n<\/p>\n
(iv) Only because non-agricultural lands had been kept out of
\n       purview of 1999 Act, the same by itself did not attract the
\n       wrath of Article 14 of the Constitution of India. .\n<\/p>\n
(v) The provisions of the 1999 Act being more beneficial
\n       compared to the provisions of 1975 Act, only because
\n       the tribes would be allotted lands outside their original
\n       habitants, the same would not attract Article 21 of the
\n       Constitution of India, particularly when they would be
\n       getting 2 hectares of land as also grant for payment of
\n       compensation to the land holder in stead and place of
\n       repayable amount of loan as provided for in the 1975
\n       Act.\n<\/p>\n
(vi) Keeping in view the nature of mandamus issued by the
\n       High Court in the earlier round of litigation, it would not
\n       mean that the State was not precluded from amending or
\n       repealing the 1975 Act.\n<\/p>\n
    (vii) The decision of this Court in Madan Mohan Pathak
\n         (supra) and Hoechst Pharmaceuticals Ltd. v. State of
\n         Bihar,<\/a> [ (1983) 4 SCC 45 ] having been explained in
\n         Indian Aluminium Co. v. State of Kerala, [(1996) 7 SCC
\n         637] as also a Constitution Bench of this Court in State
\n         of Tamilnadu v. Arooran Sugars Ltd.,<\/a> [ (1997) 1 SCC 326
\n         ], the impugned judgment cannot be sustained.\n<\/p>\n
    (viii) The tribals in whose favour the orders of restoration had
\n         been passed having not filed any writ petition, it must be
\n         presumed that they were not aggrieved by the provisions
\n         of the 1999 Act, particularly in view of the fact that their
\n         association had been consulted by the Government
\n         Officials and in that view of the matter the writ petitioner\n<\/p>\n
         – association had no locus standi to maintain the public
\n         interest litigation having regard to Baba Charan Dass
\n         Udhasi v. Mahant Basant Das Babaji Chela Baba
\n         Laxmandas Udasi Sadhu<\/a> [(2000) 6 SCC 1].\n<\/p>\n
    (x) In any event, a declaration by a Superior Court that a
\n         subsequent statute is ultra vires would not wipe off the
\n         earlier statute automatically.\n<\/p>\n
    (xi) The purchasers of land having acquired the properties in
\n         1950s must be held to have acquired an indefeasible
\n         right over the same and thus the 1975 Act even to that
\n         extent was not applicable.\n<\/p>\n
   Mr. Rajinder Sachar, learned senior counsel appearing on
\nbehalf of respondents in C.A. Nos. 104-105 of 2001, on the other
\nhand, would contend:-\n<\/p>\n
(i)    The 1999 Act being in the teeth of the mandamus issued
\n       by the High Court has rightly been held to be
\n       unconstitutional in view of the fact that nothing has been
\n       brought on record to show that the 1999 Act was enacted
\n       by the legislature despite knowledge that the directions
\n       issued by the High Court had attained finality.\n<\/p>\n
(ii)   The 1975 Act having conferred a right of restoration on
\n       the Members of the Scheduled Tribes, both in respect of
\n       agricultural and non-agricultural lands, the provisions of
\n       1999 Act and in particular Section 6 thereof having
\n       confined its operation only to agricultural land and that
\n       too with retrospective effect from 24th January, 1986,
\n       must be held to be ultra vires Article 14 of the
\n       Constitution of India.\n<\/p>\n
(iii) The Members of the Scheduled Tribes being mostly
\n       residents of forests and the lands restored in their favour
\n       being forest lands, no legal infirmity was committed by
\n       the High Court in holding that the tribals; the community
\n       being weakest of weak, should not be deprived therefrom
\n       having regard to their constitutional right of life as
\n       adumbrated in Article 21 of the Constitution of India.\n<\/p>\n
(iv) As from the statistics furnished by the State itself it would
\n       appear that only about 10 percent of the applicants had
\n       more than 2 hectares of land, the right of restoration of
\n       the marginal farmers could not have been taken away.\n<\/p>\n
(v) Once       a   statutory    protection   is   granted   to   the
\n       beneficiaries, the same could not have been withdrawn.
\n   Mr. Verghese, learned counsel appearing on behalf of
\nrespondent No.1 in Civil Appeal No.899 of 2001 supplementing the
\narguments of Mr. Sachar urged:\n<\/p>\n
    (i)    That the Members of Scheduled Tribes having come
\n           under attack by economically more advanced and
\n           politically more powerful ethnic groups who infiltrated into
\n           tribal regions in search of land and new economic
\n           possibilities, keeping in view Article 46 of the Constitution
\n           of India, they were entitled to restoration of land in terms
\n           of the judgment of the High Court passed in O.P.
\n           No.8879 of 1988.\n<\/p><\/blockquote>\n
    (ii)   Provisions of 1975 Act having been found to be
\n           constitutionally valid, the accrued and vested rights of the
\n           tribals could not have been taken away by reason of
\n           1999 Act or otherwise.\n<\/p><\/blockquote>\n
    (iii) The Writ-Petitioner – association having been fighting for
\n           the cause of the tribals for a long time, it cannot be said
\n           that they had no locus standi to file the public interest
\n           litigation.\n<\/p><\/blockquote>\n
    (iv) Even the Union of India having supported the case of the
\n           tribals, there is no reason as to why this Court should
\n           interfere with the impugned judgment.\n<\/p><\/blockquote>\n
    (v) The 1999 Act being not a validating statute, the
\n           impugned judgment is unassailable, particularly having
\n           regard to the objective of 1975 Act vis-`-vis 1999 Act.\n<\/p><\/blockquote>\n
     (vi) It is incorrect to contend that the State before enactment
\n          of 1999 Act consulted the true representatives of the
\n          tribals.\n<\/p>\n
     (vii) In any view of the matter as the members of the tribal
\n          community became entitled to restoration of their land by
\n          reason of the provisions of the 1975 Act, there was no
\n          reason as to why the original land would not be restored
\n          to them.\n<\/p>\n
The 1975 ACT<\/p>\n
    9. The 1975 Act was enacted by the State in terms of Entry 6
\nof List III of Seventh Schedule of the Constitution of India.\n<\/p>\n
    Section 2 contains interpretation clauses defining the terms
\nspecified therein.\n<\/p>\n
    Section 2(b) defines `immovable property’ to include standing
\ncrops and trees but does not include growing grass.\n<\/p>\n
    `Scheduled tribe’ has been defined in Section 2(e) to mean any
\nof the Scheduled Tribes relating to the State as specified in the
\nConstitution (Scheduled Tribes) Order, 1950.\n<\/p>\n
    Section 2(g) defines `transfer’ as under :-\n<\/p>\n
    ” `transfer’ , in relation to immovable property, means an act by
\n    which immovable property, is conveyed to any documentary or
\n    oral transaction, whether by way of mortgage with or without
\n    possession, lease, sale, gift or exchange, or in any other
\n    manner, not being a testamentary disposition; and includes a
\n    charge,    `vilapanayam’,   `unduruthi’,   contract   relating   to
\n    immovable property, mortgage, pledge or hypothecation of
\n    crops or standing trees on payment of consideration or
\n    otherwise, voluntary surrender and abandonment.\n<\/p>\n
    Explanation. – For the purposes of this clause. –\n<\/p>\n
     (i)    “vilapanyam” means hypothecation of crops on payment
\n            of consideration or otherwise;\n<\/p>\n
     (ii)   “unduruthi” means an assignment of the right to collect
\n            the usufructs available or anticipated to be available to
\n            any land during specified term for a specified price.”\n<\/p>\n
    Section 4 imposes restrictions on transfer by providing a non
\nobstante clause in terms whereof after the commencement of the
\nAct any transfer effected by a member of the Scheduled Tribe of
\nimmovable property possessed, enjoyed or owned by him to a
\nperson other than a member of a Scheduled Tribe, without the
\nprevious consent in writing of the competent authority, would be
\ninvalid.\n<\/p>\n
    Section 5 of the Act invalidated certain transfers made by
\ntribals to persons other than tribals after the first of January, 1970
\nand before commencement of the Act :-\n<\/p>\n
    “5. Certain transfers to be invalid – Notwithstanding anything to
\n    the contrary contained in any other law for time being in force,
\n    or in any contract, custom or usage, or in any judgment,
\n    decree or order of any court, any transfer of immovable
\n    property possessed, enjoyed or owned by a member of a
\n    Scheduled Tribe to a person other than a member of a
\n    Scheduled Tribe, effected on or after the Ist day of January,
\n    1960, and before the commencement of this Act shall be
\n    deemed to be invalid.”\n<\/p><\/blockquote>\n
    Under Section 6 of the 1975 Act members of the Schedule
\nTribes became entitled to restoration of possession of the
\nproperties, transfers which stood invalidated by operation of
\nSection 4 and Section 5 of the Act. It provided for applications to
\nbe made by the Tribals for restoration of alienated lands to the
\nRevenue Divisional Officer within the time prescribed therefor. The
\nRevenue Divisional Officer was to make enquiries and after being
\nsatisfied with the application of the Act was to direct restoration of
\npossession to the applicant.\n<\/p>\n
    Section 6 which is material for our purpose, inter alia, reads as
\nunder:-\n<\/p>\n
    “6. Reconveyance of property – (1) Where by reasons of a
\n    transfer of immovable property which is invalid under Section 4
\n    or Section 5, a member of a Scheduled Tribe has ceased or
\n    ceases to be in possession or enjoyment thereof he shall be
\n    entitled to the restoration of possession or enjoyment, as the
\n    case may be of such property.\n<\/p><\/blockquote>\n
          (2) Any person entitled to be restored to the possession or
\n    enjoyment of any immovable property under sub-section (1) or
\n    any other person on his behalf may make an application, either
\n    orally or in writing to the Revenue Divisional Officer within a
\n    period of one year from the date of commencement of this Act
\n    or such further period as may be specified by Government by
\n    notification in the Gazette –\n<\/p><\/blockquote>\n
          (a) for restoration of possession, or enjoyment, as the
\n    case may be, of such property, if such transfer had been
\n    made; before the date of commencement of this Act.\n<\/p><\/blockquote>\n
            (b)                 for   restoration   of    possession   or
\n       enjoyment, as the case may be, of such property and for the
\n       prosecution of the person who has procured such transfer, if
\n       such transfer was made on or after the date of commencement
\n       of this Act.”\n<\/p><\/blockquote>\n
       Section 11 provides for liability to pay amount.<\/p><\/blockquote>\n
       Section 12 provides for advancement of loan by the
\nGovernment for payment of the amount on such terms and
\nconditions as has been laid down under sub-sections (2) and (3)
\nthereof.\n<\/p>\n
       The Act also prescribed offences and provided for penalties
\netc.\n<\/p>\n
       Section 22 contains the rule making power.\n<\/p>\n
1999 ACT<\/p>\n
       The 1999 Act was published in the Kerala Gazette
\nExtraordinary on 20th April, 1999. It was given a retrospective
\neffect and retroactive operation from 24th January, 1986.\n<\/p>\n
       `Land’ has been defined in 2(b) to mean any agricultural land.\n<\/p>\n
       Section 5 of the Act reads as under:-\n<\/p>\n
       “5. Certain transfer to be invalid –\n<\/p>\n
       (1) Notwithstanding anything to the contrary contained in any
\n       other law for the time being in force, or in any contract, custom
\n       or usage, or in any judgment, decree or order of any court, any
\n       transfer of land possessed, enjoyed or owned by a member of
\n       a Scheduled Tribe to a person other than a member of a
\n       Scheduled Tribe, effected on or after the 1st day of January,
\n1960, and before the commencement of this Act shall be
\ndeemed to be invalid:\n<\/p>\n
     Provided that nothing in this section shall render invalid
\nany transfer of land possessed, enjoyed or owned by a
\nmember of a Scheduled Tribe to a person other than a
\nmember of a Scheduled Tribe effected during the aforesaid
\nperiod and the extent of which does not exceed two hectares.\n<\/p>\n
(2) Notwithstanding anything contained in sub-section (1) or in
\nany judgment, decree or order of any Court or other authority,
\nin cases where the land involved in such transfer is used for
\nagricultural purposes, the transferee thereof shall be entitled to
\nretain in his possession the said land upto an extent of two
\nhectares which shall be demarcated by the Revenue Divisional
\nOfficer by order and in the manner as may be prescribed.”\n<\/p>\n
Section 6 providing for allotment of lands reads thus:-\n<\/p>\n
“6. Allotment of lands.- Notwithstanding anything contained in
\nsection 5 or in any judgment, decree or order of any Court or
\nother authority, a member of a Scheduled Tribe who had
\neffected any transfer of land, possessed, enjoyed or owned by
\nhim, to a person other than a member of a Scheduled Tribe,
\nbetween the 1st day of January, 1960 and the 24th day of
\nJanuary, 1986 and where an application for restoration of right
\nunder Section 6 of the Kerala Scheduled Tribes (Restriction of
\nTransfer of Lands and Restoration of Alienated Lands) Act,
\n1975 (31 of 1975) has been filed before publication of this Act
\nin the Gazette, but the possession or enjoyment thereof, has
\nnot been restored to him and such transfer has been validated
\nby the proviso to sub-section (1) of Section 5 or the transferee
\nthereof has been made eligible for the retention of said land
\nunder sub-section (2) of Section 5, shall be entitled to
\nrestoration of equal extent of land by way of allotment from the
\nGovernment:\n<\/p>\n
     Provided that where the extent of the land so allotted in
\nrespect of which there is eligibility for restoration of rights, is
\nless than forty ares, Government shall allot the rest of the land
\nrequired to make the total extent equal to forty ares (One
\nacre).”\n<\/p>\n
Section 8 providing for liability to pay amount reads :-\n<\/p>\n
 “8. Liability to pay amount.-\n<\/p>\n
 (1) Notwithstanding anything contained in any other law for
\n      the time being in force, where the possession or
\n      enjoyment of any land is restored to a member of a
\n      Scheduled Tribe under this Act, an amount equal to the
\n      aggregate of the actual amount of consideration received
\n      by such member at the time of the transfer and an
\n      amount determined by the competent authority for
\n      improvements, if any, made after the transfer and before
\n      such restoration shall be paid by him to the person from
\n      whom possession or enjoyment, as the case may be,
\n      was restored, in accordance with the rules made under
\n      this Act:\n<\/p>\n
      Provided that no amount shall be payable if the transfer
\n      was effected on or after the commencement of this Act.
\n    (2) The amount determined by the competent authority
\n         under sub-section (1) shall be final and shall not be
\n         called in question in any court.\n<\/p>\n
    (3) The amount payable under sub-section (1) shall be
\n         recoverable in such manner as may be prescribed.\n<\/p>\n
   Section 10 provides for assignment of land, which reads:-\n<\/p>\n
    “10. Assignment of land.-\n<\/p>\n
    (1) Notwithstanding anything contained in Section 6 or in the
\n         Kerala Government Land Assignment Act, 1960 (30 of
\n         1960) and the rules issued thereunder, the Government
\n         shall assign land to the landless families of the
\n         Scheduled Tribes in the State, an extent not exceeding
\n         forty ares of land in the district they reside within a period
\n         of two years from the date of publication of this Act in the
\n         Gazette, or such further period as may be specified by
\n         Government by notification in the Gazette, and in the
\n         manner as may be prescribed.\n<\/p>\n
    (2) Where the extent of the land in the possession and
\n         enjoyment of any family of the Scheduled Tribe in the
\n         State, is less than 40 Ares such family shall be entitled to
\n         get assigned more land which is necessary to make the
\n         total extent of the land equal to 40 Ares.”\n<\/p>\n
   Section 11 provides for constitution of Scheduled Tribe
\nRehabilitation and Welfare Fund and utilization thereof.\n<\/p>\n
   Section 21 provides for power to make Rules.\n<\/p>\n
   Section 22 is the Repealing and Saving clause.\n<\/p>\n
   It reads as under:-\n<\/p>\n
     “22. Repeal and saving.-\n<\/p>\n
     (1) The Kerala Scheduled Tribes (Restriction on Transfer of
\n          Lands and Restoration of Alienated Lands) Act, 1975 (31
\n          of 1975) is hereby repealed.\n<\/p><\/blockquote>\n
     (2) Notwithstanding the repeal of the said Act, all orders
\n          issued by the competent authority or the Revenue
\n          Divisional Officer, so far as they are not inconsistent with
\n          the provisions of this Act shall be deemed to have been
\n          made under the corresponding provisions of this Act and
\n          shall continue to be in force accordingly unless and until
\n          superseded by anything done or any action taken under
\n          this Act. Every proceedings pending before a Court on a
\n          complaint under Section 14 of the said Act shall be
\n          deemed as a proceeding under the corresponding
\n          provisions   of   this   Act   and   shall   be   continued
\n          accordingly.”\n<\/p><\/blockquote>\n
CONSTITUTIONAL VALIDITY OF 1999 ACT<\/p>\n
LEGISLATIVE BACKDROP<\/p>\n
    11. The validity of 1975 Act is not in question. It, having regard
\nto its inclusion in the Ninth Schedule of the Constitution of India by
\nConstitution 40th Amendment Ac, 1976 read with Article 31B
\nwhich precludes an attack to the provisions of such an enactment
\non the ground that it violates any provisions of Part III of the
\nConstitution of India, the validity thereof was upheld by a leaned
\nSingle Judge of the Kerala High Court in Bhavani v. State of
\nKerala, [1989 (1) KLT (Short Note Case No.58) at 37].
\n    We may also notice that Jagannadha Rao, C.J. (as His
\nLordship then was) in Fr. Thomas Kubukkat v. Union of India,
\n[ 1994 (2) KLT 25 ] also upheld the provisions of Section 1(3) of
\n1975 Act stating the said provision to be conditional legislation and
\nnot a delegated legislation.\n<\/p>\n
    The Constitutional validity of statutes enacted for the benefit of
\nthe members of Scheduled Tribe by some other State although not
\nidentical has been upheld by this Court in Manchegowda and
\nothers v. State of Karnataka and others, [(1984) 3 SCC 301],
\nLingappa v. State of Maharashtra, [(1985) 1 SCC 479]; P. Rama
\nReddy v. State of A.P. [ (1988) 3 SCC 433 ] and Samtha v. State
\nof Andhra Pradesh, [ (1997) 8 SCC 191 ].\n<\/p>\n
    These decisions have been rendered on statutes which are not
\nabsolutely identical. All of which are not in pari materia with the
\nother.\n<\/p>\n
    However, we may notice that in Manchegowda (supra) this
\nCourt held:-\n<\/p>\n
    “19. We have earlier noticed that the title which is acquired by
\n    a transferee in the granted lands, transferred in contravention
\n    of the prohibition against the transfer of the granted lands, is a
\n    voidable title which in law is liable to be defeated through
\n    appropriate action and possession of such granted lands
\n    transferred in breach of the condition of prohibition could be
\n    recovered by the grantor. The right or property which a
\n    transferee acquires in the granted lands, is a defeasible right
\n    and the transferee renders himself liable to lose his right or
\n    property at the instance of the grantor. We have further
\n    observed that by the enactment of this Act and particularly
\n    Section 4 and Section 5 thereof, the Legislature is seeking to
\n    defeat the defeasible right of the transferee in such lands
\n    without the process of a prolonged legal action with a view to
\n    speedy resumption of such granted lands for distribution
\n    thereof to the original grantee or their legal representatives and
\n    in their absence to other members of the Scheduled Castes
\n    and Scheduled Tribes communities. In our opinion, this kind of
\n    defeasible right of the transferee in the granted lands cannot
\n    be considered to be property as contemplated in Articles 31
\n    and 31-A. The nature of the right of the transferee in the
\n    granted lands on transfer of such lands in breach of the
\n    condition of prohibition relating to such transfer, the object of
\n    such grant and the terms thereof, also the law governing such
\n    grants and the object and the scheme of the present Act
\n    enacted for the benefit of the weaker sections of our
\n    community, clearly go to indicate that there is in this case no
\n    deprivation of such right or property as may attract the
\n    provisions of Articles 31 and 31-A of the Constitution.”<\/p><\/blockquote>\n
    We are not concerned with the constitutional validity of 1975
\nAct. We would at an appropriate stage deal with the matter in
\nregard to the effect thereof.\n<\/p>\n
COLOURABLE LEGISLATION<\/p>\n
    12. We have noticed hereinbefore that the Division Bench of
\nthe High Court has upheld the legislative competence of the
\nLegislature of the State of Kerala. We, therefore, really at pains to
\nunderstand as to how the doctrine of `Colourable Legislation’ could
\nbe invoked by the learned Judge of the High Court.
\n    The doctrine of `Colourable Legislation” is directly connected
\nwith the legislative competence of the State. Whereas the 1975
\nAct was enacted in terms of Entry 6 List III of the Seventh
\nSchedule of the Constitution of India providing for transfer of lands;
\nthe 1999 Act was enacted in terms of Entry 18 List II thereof. It
\nreads as under :-\n<\/p>\n
    “18. Land, that is to say, right in or over land, land tenures,
\n    including the relation of landlord and tenant, and the collection
\n    of rents; transfer and alienation of agricultural land ; land
\n    improvement and agricultural loans; colonization.”<\/p><\/blockquote>\n
    The 1999 Act, thus, having confined itself to `agricultural land’,
\nindisputably the State Legislature only has the requisite legislative
\ncompetence therefor.\n<\/p>\n
    It is one thing to say that an enactment suffers from vice of
\ncolourable legislation on the premise that it does not have
\nlegislative competence but it is another thing to say that only
\nbecause the Act was amended purporting to nullify an earlier Act
\n(in the words of the High Court), the same by itself would attract
\nthe said doctrine.\n<\/p>\n
    For invoking the doctrine of `Colourable Legislation’ the
\nlegislature must have transgressed the limits of its constitutional
\npower patently, manifestly and directly.\n<\/p>\n
    The doctrine of `Colourable Legislation’, in our opinion, has no
\napplication in the instant case. The said doctrine is founded on
\nlegislative competence of the State. An act of mala fide on the part
\nof the legislature also is beyond the province of judicial review. In
\nfact no motive can be attributed to the Legislature for enacting a
\nparticular statute. The question in regard to the constitutionality of
\nthe statute must be considered keeping in view only the provisions
\nof the Constitution.\n<\/p>\n
    In K.C. Gajapathi Narayan Deo v. The State of Orissa [(1954)
\n1 SCR 1], this Court held:\n<\/p>\n
    “9. It may be made clear at the outset that the doctrine of
\n    colourable legislation does not involve any question of bona
\n    fides or mala fides on the part of the legislature. The whole
\n    doctrine resolves itself into the question of competency of a
\n    particular legislature to enact a particular law. If the legislature
\n    is competent to pass a particular law, the motives which
\n    impelled it to act are really irrelevant. On the other hand, if the
\n    legislature lacks competency, the question of motive does not
\n    arise at all. Whether a statute is constitutional or not is thus
\n    always a question of power.”<\/p><\/blockquote>\n
    In R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit
\nMills Limited and Another [(1977) 4 SCC 98], this Court held as
\nunder:\n<\/p>\n
    “2. A prefatory caveat. When examining a legislation from the
\n    angle of its vires, the Court has to be resilient, not rigid,
\n    forward-looking, not static, liberal, not verbal — in interpreting
\n    the organic law of the nation. We must also remember the
\n    constitutional proposition enunciated by the U.S. Supreme
\n    Court in Munn v. Illinois1 viz. “that courts do not substitute their
\n    social and economic beliefs for the judgment of legislative
\n    bodies”. Moreover, while trespasses will not be forgiven, a
\n    presumption        of   constitutionality   must   colour   judicial
\n    construction. These factors, recognised by our Court, are
\n    essential to the modus vivendi between the judicial and
\n   legislative branches of the State, both working beneath the
\n   canopy of the Constitution.\n<\/p><\/blockquote>\n
   *** ***    ***<\/p>\n<\/blockquote>\n
   13. Bearing in mind the quintessential aspects of the rival
\n   contentions, let us stop and take stock. The facts of the case
\n   are plain. The professed object of the law is clear. The motive
\n   of the legislature is irrelevant to castigate an Act as a
\n   colourable device. The interdict on public mischief and the
\n   insurance of consumer interests against likely, albeit, unwitting
\n   or “ex abundanti cautela” excesses in the working of a statute
\n   are not merely an ancillary power but surely a necessary
\n   obligation of a social welfare state. One potent prohibitory
\n   process for this consummation is to penalize the trader by
\n   casting a no-fault or absolute liability to “cough up” to the State
\n   the total “unjust” takings snapped up and retained by him “by
\n   way of tax” where tax is not so due from him, apart from other
\n   punitive impositions to deter and to sober the merchants
\n   whose arts of dealing with customers may include “many a
\n   little makes a mickle’. If these steps in reasoning have the
\n   necessary nexus with the power to tax under Entry 54 List II, it
\n   passes one’s comprehension how the impugned legislation
\n   can be denounced as exceeding legislative competence or as
\n   a   “colourable     device”    or    as    “supplementary,     not
\n   complementary’.”\n<\/p><\/blockquote>\n
   [See also Dharam Dutt and others v. Union of India,<\/a> [(2004) 1
\nSCC 712].”\n<\/p>\n
   The principles of determining the constitutionality of statute has
\nbeen stated in Gujarat Ambuja Cements Ltd. v. Union of India,<\/a>
\n[(2005) 4 SCC 214 ] thus:-\n<\/p>\n
    “28. Having determined the parameters of the two legislative
\n   entries the principles for determining the constitutionality of a
\n   statute come into play. These principles may briefly be
\n   summarised thus:\n<\/p>\n
    (a) The substance of the impugned Act must be looked at to
\n   determine whether it is in pith and substance within a particular
\n   entry whatever its ancillary effect may be [Prafulla Kumar
\n   Mukherjee v. Bank of Commerce Ltd., AIR at p. 65, A.S.
\n   Krishna v. State of Madras, State of Rajasthan<\/a> v. G. Chawla,
\n   Katra Educational Society v. State of U.P., D.C. Johar & Sons
\n   (P) Ltd. v. STO and Kannan Devan Hills Produce v. State of
\n   Kerala<\/a>].\n<\/p>\n
        (b) Where the encroachment is ostensibly ancillary but in
\n   truth beyond the competence of the enacting authority, the
\n   statute will   be a colourable piece of legislation and
\n   constitutionally invalid (A.S. Krishna v. State of Madras, A.B.
\n   Abdul Kadir<\/a> v. State of Kerala, SCC at p. 232 and Federation
\n   of Hotel & Restaurant Assn. of India v. Union of India, SCC<\/a> at
\n   p. 651). If the statute is legislatively competent the enquiry into
\n   the motive which persuaded Parliament or the State
\n   Legislature into passing the Act is irrelevant (Dharam Dutt v.
\n   Union of India).<\/a>\n<\/p>\n
        (c) Apart from passing the test of legislative competency,
\n   the Act must be otherwise legally valid and would also have to
\n   pass the test of constitutionality in the sense that it cannot be
\n   in violation of the provisions of the Constitution nor can it
\n   operate extraterritorially. (See Poppatlal Shah v. State of
\n   Madras.)<\/a>”\n<\/p>\n
   Has the legislature of the State of Kerala transgressed the
\nlimitations of its constitutional power, as has been held by the High
\nCourt, is the question?\n<\/p>\n
   We have pointed out heretobefore that the doctrine of
\ncolourable legislation is strictly confined to the question of
\nlegislative competence of the State Legislature to enact a statute.
\nOnce it was opined by the High Court that having regard to Entry
\n51, List II of the Seventh Schedule of the Constitution of India, the
\nLegislature of the State of Kerala had the requisite legislative
\ncompetence to enact the 1999 Act, that should have been held to
\nbe the end of the matter. The High Court could not have, in our
\nrespectful opinion, entered into the said question through a side-
\ndoor so as to hold that the transgression of the limitations of
\nconstitutional power may be disguised, covert or indirect.\n<\/p>\n
   The High Court, in our opinion, again with utmost respect, has
\ncommitted a fundamental error in failing to keep a distinction in
\nmind in regard to the power of a law making authority which is of a
\nqualified character and the power granted to a legislative authority
\nwhich is absolutely without any limitation and restriction, being
\nplenary in character.\n<\/p>\n
   A statute in view of the decision of this Court in Gujarat
\nAmbuja Cements Ltd. (supra), in the event of it being held within
\nthe ambit of the legislative competence of the State, could be
\ndeclared ultra vires only on the premise that it is violative of the
\nprovisions of Part III of the Constitution of India or any other
\nprovisions but not on the ground of colourable exercise of power or
\nmala fide on the part of the legislature. The object, purpose or
\ndesign referred to by the High Court should be taken into
\nconsideration for the purpose of examining its constitutionality on
\nthe touchstone of the provisions of Part III of the Constitution of
\nIndia and not otherwise. In that view of the matter, the High Court
\ncommitted a serious error in relying upon Dwarkadas Shrinivas of
\nBombay v. Sholapur Spinning and Weaving Company Ltd. and
\nOthers<\/a> [AIR 1954 SC 119] and Jagannath Baksh Singh v. State of
\nU.P.<\/a> [AIR 1962 SC 1563], which did not deal with the question of
\nlegislative competence of the legislature of a State, as was the
\nquestion before the High Court.\n<\/p>\n
      No material was placed before the High Court to establish that
\nthe 1999 Act was confiscatory in nature.\n<\/p>\n
      It is one thing to say that a citizen of India having been
\nconferred with a right on lands by reason of a statutory provision,
\nhas     been   deprived    therefrom   without    payment     of   any
\ncompensation and, thus, the same would be violative of Article
\n300A of the Constitution of India, but, it is another thing to say that
\non that ground alone the legislation should be held to be a
\ncolourable one.\n<\/p>\n
      We have adverted to the statement of Objects and Reasons of
\nthe 1999 Act. The legislature had a broad object in mind. Whether
\nthe Act stands the scrutiny of limitations of the State’s power so as
\nto achieve its object and purpose is one question, but, it is another
\nquestion that while doing so it has adopted a device and a cloak to
\nconfiscate the property of the citizen taxed as was the case in K.T.
\nMoopil Nair v. State of Kerala [AIR 1961 SC 552].
\n    The       High   Court   in   its   judgment   has   referred    to
\nShankaranarayana v. State of Mysore<\/a> [AIR 1966 SC 1571]. But, in
\nour opinion, and with utmost respect, it again failed to apply the
\nprinciples laid down therein correctly. Therein itself the court had
\nnoted that if the legislature is competent to pass a particular law,
\nthe motives which impel it to pass the same become really
\nirrelevant.\n<\/p>\n
    The High Court furthermore committed a serious error insofar
\nas it made an incidental observation that the tribals who enjoy the
\nprotection of Constitution of India and sought to be protected by
\nthe 1975 Act could not have been denied the benefits under the
\n1999 Act, which in our opinion, was not a relevant question.\n<\/p>\n
    The provisions of the Constitution in this behalf are enabling in
\nnature. When a constitutionality of an enactment comes to be
\nquestioned, the superior courts are required to pose unto
\nthemselves the right question.\n<\/p>\n
    The question, in our opinion, should have been whether the
\nstatute is valid having been enacted to achieve the constitutional
\ngoal set out not only in Part III of the Constitution of India but also
\nPart IV and IVA thereof.\n<\/p>\n
    The rights conferred upon the class of persons including the
\nprotected class, in terms of 1975 Act, were statutory in nature.
\nThey cannot be categorized as plainly constitutional rights. It is
\none thing to say that some rights are constitutional in nature\/origin
\nbeing part of the expansive regime of Article 21, but, it would not
\nbe correct to raise the same to the exalted status of constitutional
\nrights. A right which primarily flows from a statute, cannot claim its
\nconstitutional pedigree to become a constitutional threshold,
\nagainst which constitutionality of a statute can be tested. It is trite
\nthat a right which may be conferred by a statute can also be taken
\naway by another.\n<\/p>\n
    It is also a trite law that the State is entitled to change its
\nlegislative policy having regard to the ground realities and
\nchanging societal condition. In fact, the legislature is expected to
\ntake steps for enacting a new statute or amending the same so as
\nto keep pace with the changing societal condition as well as taking
\ninto consideration the development of law, both domestic and
\ninternational.\n<\/p>\n
    The High Court, in our opinion, furthermore committed a
\nserious error in opining that although the legislature had the
\nlegislative competence to enact Act 12 of 1999, but nevertheless,
\nproviso to Sections 5(1) and 5(2) thereof would be held to be
\ncolourable. The High Court should have examined the question of
\ntheir constitutionality on the touchstone of Articles 14 and 21 of the
\nConstitution of India and not on the premise that the said
\nprovisions are colourable in nature.\n<\/p>\n
PRESIDENTIAL ASSENT<\/p>\n
    13. It was held by the High Court that Presidential Assent was
\nnecessary and the 1999 Act was enacted to by-pass the
\nmandatory requirement of the President’s Assent. In determining
\nthe said issue, it again ought to have posed unto itself the right
\nquestion, viz., whether the Presidential Assent was necessary for
\nenacting a statute which came within the purview of List II of the
\nSeventh Schedule of the Constitution of India. The answer thereto
\nmust be rendered in negative.\n<\/p>\n
    The 1975 Act dealt with both agricultural and non-agricultural
\nlands. Transfer of land comes within the purview of Entry 6, List III
\nof the Seventh Schedule of the Constitution of India. There exists a
\nParliamentary Act in that behalf, as for example, Transfer of
\nProperty Act. Only because the 1975 Act could be held to be in
\nconflict with the provisions of the Transfer of Property Act, the
\nPresidential Assent was necessary having regard to Clause (2) of
\nArticle 254 of the Constitution of India but once the said statute is
\nrepealed and in its place a new Act is brought on the statute book,
\nwhich comes strictly within the purview of Entry 49, List II of the
\nSeventh Schedule of the Constitution of India, no Presidential
\nAssent would be necessary. Presidential Assent would be
\nnecessary for the purpose of amendment of the Act and not for
\nenacting a separate statute which came within the purview of a
\ndifferent entry and a different List.\n<\/p>\n
    It is furthermore well-known that Article 254 of the Constitution
\nof India would be attracted only in a case where two statutes are
\nenacted under the Concurrent List, viz., one by the State
\nLegislature and the other by the Parliament of India, and not in any
\nother case.\n<\/p>\n
EFFECT OF ISSUANCE OF A WRIT OF MANDAMUS<\/p>\n
    14. Before adverting to the said question, we may notice the
\nbackground facts leading to the issuance of a writ of mandamus.\n<\/p>\n
    Admittedly the State was not implementing the provisions of
\nthe 1975 Act. Dr. P. Nalla Thampy Thera filed O.P. No.8879 of
\n1988 for direction upon the State and its officers to implement the
\nprovisions of the 1975 Act. The learned Additional Advocate
\nGeneral appearing for the State gave an undertaking to the effect
\nthat “utmost steps would be taken for the disposal of the
\napplications and that the Act would be enforced in all its rigour”, on
\nthe basis whereof the Original Petition was allowed on 15th
\nOctober, 1993 directing the State to give directions to the
\nAuthorities under the Act to dispose of the applications pending
\nbefore them within six months of that date.\n<\/p>\n
    As the State had taken extension of time by an order dated
\n13th August, 1996, a learned Single Judge, inter alia, directed the
\nRevenue Divisional Officers to cause delivery of the properties
\ncovered by orders for restoration against which no appeals were
\npending and in which no compensation was payable, forthwith and
\nin any event within six weeks from that date.\n<\/p>\n
    A writ appeal was preferred thereagainst and an interim order
\nof stay was passed on 11th October, 1996. The matter was
\nreferred to a Full Bench. We have noticed heretobefore the order
\ndated 25th November, 1998.\n<\/p>\n
    We have also noticed the order of the Full Bench dated 6th
\nJanuary, 1999.\n<\/p>\n
    The High Court was, thus, aware of the impending legislation.
\nThe extension of time was subject to a new legislation.\n<\/p>\n
    The 1975 Act was a conditional legislation. It came into force
\nwith effect from 24th January, 1986. Directions were issued only in
\nregard to implementation of the statutory provisions It was not a
\ncase where by reason of issuance of writ of mandamus, certain
\nbenefits were conferred on a person or a group of persons.\n<\/p>\n
    In Madan Mohan Pathak (supra), the Calcutta High Court had
\nissued a writ of mandamus directing the Life Insurance
\nCorporation to pay annual cash bonus to Class III and Class IV
\nemployees for years April 1, 1975 to March 31, 1976 along with
\ntheir salary for the month of April, 1976 as provided by the
\nSettlement. The said decision attained finality as Letters Patent
\nAppeal preferred thereagainst had been withdrawn by the Life
\nInsurance Corporation. In the meantime a Parliamentary Act,
\nknown as Life Insurance Corporation (Modification of Settlement)
\nAct, 1976 came into force.\n<\/p>\n
   In the said factual backgrounds, it was held :-\n<\/p>\n
   “7. But before we proceed further, it would be convenient at
\n   this stage to refer to one other contention of the petitioner
\n   based on the judgment of the Calcutta High Court in Writ
\n   Petition 371 of 1976. The contention was that since the
\n   Calcutta High Court had by its judgment dated May 21, 1976
\n   issued a writ of mandamus directing the Life Insurance
\n   Corporation to pay annual cash bonus to Class III and Class IV
\n   employees for the year April 1, 1975 to March 31, 1976 along
\n   with their salary for the month of April, 1976 as provided by the
\n   Settlement and this judgment had become final by reason of
\n   withdrawal of the Letters Patent Appeal preferred against it,
\n   the Life Insurance Corporation was bound to obey the writ of
\n   mandamus and to pay annual cash bonus for the year April 1,
\n   1975 to March 31, 1976 in accordance with the terms of clause
\n   8(ii) of the Settlement. It is, no doubt, true, said the petitioners,
\n   that the impugned Act, if valid, struck at clause 8(ii) of the
\n   Settlement and rendered it ineffective and without force with
\n   effect from April 1, 1975 but it did not have the effect of
\n   absolving the Life Insurance Corporation from its obligation to
\ncarry out the writ of mandamus. There was, according to the
\npetitioners, nothing in the impugned Act which set at naught
\nthe effect of the judgment of the Calcutta High Court or the
\nbinding character of the writ of mandamus issued against the
\nLife Insurance Corporation. This contention of the petitioners
\nrequires serious consideration and we are inclined to accept it.\n<\/p>\n
1.   It is significant to note that there was no reference to the
\n     judgment of the Calcutta High Court in the Statement of
\n     Objects and Reasons, nor any non obstante clause
\n     referring to a judgment of a Court in Section 3 of the
\n     impugned Act. The attention of Parliament does not
\n     appear to have been drawn to the fact that the Calcutta
\n     High Court has already issued a writ of mandamus
\n     commanding the Life Insurance Corporation to pay the
\n     amount of bonus for the year April 1, 1975 to March 31,
\n     1976. It appears that unfortunately the judgment of the
\n     Calcutta High Court remained almost unnoticed and the
\n     impugned Act was passed in ignorance of that judgment.
\n     Section 3 of the impugned Act provided that the
\n     provisions of the Settlement insofar as they relate to
\n     payment of annual cash bonus to Class III and Class IV
\n     employees shall not have any force or effect and shall
\n     not be deemed to have had any force or effect from April
\n     1, 1975. But the writ of mandamus issued by the Calcutta
\n     High Court directing the Life Insurance Corporation to
\n     pay the amount of bonus for the year April 1, 1975 to
\n     March 31, 1976 remained untouched by the impugned
\n     Act. So far as the right of Class III and Class IV
\n     employees to annual cash bonus for the year April 1,
\n1975 to March 31, 1976 was concerned, it became
\ncrystallised in the judgment and thereafter they became
\nentitled to enforce the writ of mandamus granted by the
\njudgment and not any right to annual cash bonus under
\nthe Settlement. This right under the judgment was not
\nsought to be taken away by the impugned Act. The
\njudgment continued to subsist and the Life Insurance
\nCorporation was bound to pay annual cash bonus to
\nClass III and Class IV employees for the year April 1,
\n1975 to March 31, 1976 in obedience to the writ of
\nmandamus. The error committed by the Life Insurance
\nCorporation was that it withdrew the Letters Patent
\nAppeal and allowed the judgment of the learned Single
\nJudge to become final. By the time the Letters Patent
\nAppeal came up for hearing, the impugned Act had
\nalready come into force and the Life Insurance
\nCorporation    could,    therefore,   have     successfully
\ncontended in the Letters Patent Appeal that, since the
\nSettlement, insofar as it provided for payment of annual
\ncash bonus, was annihilated by the impugned Act with
\neffect from April 1, 1975, Class III and Class IV
\nemployees were not entitled to annual cash bonus for the
\nyear April 1, 1975 to March 31, 1976 and hence no writ
\nof mandamus could issue directing the Life Insurance
\nCorporation to make payment of such bonus. If such
\ncontention had been raised, there is little doubt, subject
\nof course to any constitutional challenge to the validity of
\nthe impugned Act, that the judgment of the learned
\nSingle Judge would have been upturned and the writ
\n            petition dismissed. But on account of some inexplicable
\n            reason, which is difficult to appreciate, the Life Insurance
\n            Corporation did not press the Letters Patent Appeal and
\n            the result was that the judgment of the learned Single
\n            Judge granting writ of mandamus became final and
\n            binding on the parties. It is difficult to see how in these
\n            circumstances the Life Insurance Corporation could
\n            claim to be absolved from the obligation imposed by the
\n            judgment to carry out the writ of mandamus by relying on
\n            the impugned Act.”.\n<\/p>\n
   Madan Mohan Pathak (supra) has been followed in P.
\nVenugopal v. Union of India,<\/a> [ (2008) 5 SCC 1 ], wherein it was
\nopined :-\n<\/p>\n
   “As in Mohan Pathak case (para 8), as quoted hereinabove, in
\n   the instant case also Parliament does not seem to have been
\n   apprised about the pendency of the proceedings before the
\n   Delhi High Court and this Court and declaration made and
\n   directions issued by the Delhi High Court at different stages. In
\n   the impugned amendment, there is no non obstante clause.
\n   The impugned amendment introducing the proviso, therefore,
\n   cannot be treated to be a validating Act.”\n<\/p>\n
   A distinction must be made between issuance of writ of
\nmandamus conferring right upon a person or class of persons and
\nthe one directing implementation of the Act. However, in this case
\nwhile the learned Single Judge of the High Court issued a direction
\nthat the applications filed by the members of the Scheduled Tribes
\nshould be determined by the Revenue Authorities in terms of the
\nprovisions of the 1975 Act; the same, in our opinion, did not mean
\nthat the High Court itself had issued a writ of mandamus directing
\nrestoration of the lands in question.\n<\/p>\n
    As in most of the cases members of the Scheduled Tribes
\nhave not been paid compensation through their vendees in terms
\nof the provisions of 1975 Act. They did not attain finality. If that be
\nso, in our opinion question of invoking the decision of Madan
\nMohan Pathak (supra) in the factual matrix involved herein does
\nnot arise.\n<\/p>\n
    Further, it is one thing to say that a writ of mandamus shall be
\nobeyed despite passing of a subsequent Act as it had attained
\nfinality or that it had not been brought to the notice of the
\nLegislature, but it is another thing to say that no writ of mandamus
\nwas issued conferring rights upon the parties. Directions to
\nimplement the provisions of the Act by itself did not confer any
\nright upon the parties. The lis has to be adjudicated upon. It did not
\nattain finality in that sense of the term.\n<\/p>\n
    We may notice that scope of Madan Mohan Pathak (supra)
\nhas been explained in Indian Aluminium Co. (supra), stating :-\n<\/p>\n
    “49. In Madan Mohan Pathak v. Union of India,<\/a> on the basis of
\n    a settlement, bonus became payable by the LIC to its Class III
\n    and Class IV employees. In a writ, a Single Judge of the
\n    Calcutta High Court issued mandamus directing payment of
\n    bonus as provided in the settlement. During the pendency of
\n    letters patent appeal, LIC (Modification of Settlement) Act,
\n    1976 was enacted denying bonus payable to the employees.<\/p><\/blockquote>\n
    The appeal was withdrawn. The validity of 1976 Act was
\n    challenged in this Court under Article 32 of the Constitution. A
\n    Bench of seven Judges had held that Parliament was not
\naware of the mandamus issued by the court and it was
\ndeclared that the 1976 Act was void and writ of mandamus
\nwas issued to obey the mandamus by implementing or
\nenforcing the provisions of that Act and directed payment of
\nbonus in terms of the settlement. It was pointed out that there
\nwas no reference to the judgment of the High Court in the
\nStatement of Objects and Reasons, nor any non obstante
\nclause referring to the judgment of the Court was made in
\nSection 3 of the Act. Attention of Parliament was not drawn to
\nthe mandamus issued by the High Court. When the mandamus
\nissued by the High Court became final, the 1976 Act was held
\ninvalid. Shri R.F. Nariman laid special emphasis on the
\nobservations of learned Chief Justice Beg who in a separate
\njudgment had pointed out that the basis of the mandamus
\nissued by the court could not be taken away by indirect fashion
\nas observed at p.       743, C to F. From the observations
\nmade by Bhagwati, J. per majority, it is clear that this Court did
\nnot intend to lay down that Parliament, under no circumstance,
\nhas power to amend the law removing the vice pointed out by
\nthe court. Equally, the observation of Chief Justice Beg is to be
\nunderstood in the context that as long as the effect of
\nmandamus      issued   by   the   court   is   not   legally   and
\nconstitutionally made ineffective, the State is bound to obey
\nthe directions. Thus understood, it is unexceptionable. But it
\ndoes not mean that the learned Chief Justice intended to lay
\ndown the law that mandamus issued by court cannot at all be
\nmade ineffective by a valid law made by the legislature,
\nremoving the defect pointed out by the court.”
\n   Madan Mohan Pathak (supra), thus, stood explained in Indian
\nAluminium Co. v. State of Kerala (supra) to be understood in the
\ncontext that as long as the effect of mandamus issued by the court
\nis not legally and constitutionally made ineffective, the State is
\nbound to obey the directions.\n<\/p>\n
   Yet again, in National Agricultural Coop. Marketing Federation
\nof India Ltd. v. Union of India,<\/a> [(2003) 5 SCC 23], explaining
\nMadan Mohan Pathak, it has been held :-\n<\/p>\n
   “26. The decision is an authority for the principle that a judicial
\n   decision which has become final inter partes, cannot be set at
\n   naught by legislative action, a principle that is well entrenched.
\n   Therefore, if, as has been contended by the appellant, the
\n   High Court in 1981 had in proceedings between the appellant
\n   and the Revenue held that the appellant was entitled to the
\n   benefit of the deduction under Section 80-P(2)(a)(iii) of the Act,
\n   and the Revenue has not impugned the High Court’s decision,
\n   that decision binds the parties for the assessment years in
\n   question and cannot be reopened because of the 1998
\n   Amendment. This principle, however, does not in any way
\n   detract from the principle that the legislature may “cure” the
\n   statute so that it more correctly represents its intention. Such
\n   curative legislation does not in fact touch the validity of a
\n   judicial decision which may have attained finality albeit under
\n   the pre-amended law.”\n<\/p>\n
   In Mylapore Club v. State of T.N. [ (2005) 12 SCC 752 ], P.K.
\nBalasubramanyan, J opined :-\n<\/p>\n
   “The power to legislate is a plenary power vested in the
\n   legislature and unless those who challenge the legislation
\n    clearly establish that their fundamental rights under the
\n    Constitution are affected or that the legislature lacked
\n    legislative competence, they would not succeed in their
\n    challenge to the enactment brought forward in the wisdom of
\n    the legislature. Conferment of a right to claim the benefit of a
\n    statute, being not a vested right, the same could be withdrawn
\n    by the legislature which made the enactment. It could not be
\n    said that the Amendment Act lacked either legislative
\n    competence or that it is unconstitutional.”\n<\/p>\n
    Where a new Act is enacted removing the very basis on which
\nthe High Court made a preceding Act invalid; it matters not
\nwhether the same is not termed as a validating statute or not. In
\nthis case, however, in our opinion, such a question does not arise
\nas the 1975 Act was not declared to be invalid.\n<\/p>\n
    In Bakhtawar Trust v. M.D. Narayan,<\/a> [(2003) 5 SCC 298] this
\nCourt held :-\n<\/p>\n
    “In order to validate an executive action or any provision of a
\n    statute, it is not sufficient for the legislature to declare that a
\n    judicial pronouncement given by a court of law would not be
\n    binding, as the legislature does not possess that power. A
\n    decision of a court of law has a binding effect unless the very
\n    basis upon which it is given is so altered that the said decision
\n    would not have been given in the changed circumstances.”<\/p><\/blockquote>\n
    The reason is not far to seek. The Legislature can not over-rule
\na judgment but it can remove the basis on which the judgment has
\nbeen rendered.\n<\/p>\n
    The Act was implemented both in respect of those who had
\ntwo acres of land and those who had more.\n<\/p>\n
    The 1999 Act removes the basis for passing of the judgments
\nso far as the applications for restoration filed by Members of the
\nScheduled Tribes in regard to their lands which was less than 2
\nhectares is concerned.\n<\/p>\n
    It provides that the term `land’ would mean `only agricultural
\nland’ and the application for restoration shall lie only in case where
\nthe extent of the land exceed two hectares. (See Section 2(b) and
\nSection 5 of 1999 Act).\n<\/p>\n
    Admittedly, the 1999 Act was made effective retrospectively
\nfrom 24th day of January, 1986. It contains a Repeal and Savings
\nclause. In that view of the matter, in our opinion, it was not
\nnecessary to term the statute as a validating statute containing a
\nnon-obstante clause.\n<\/p>\n
    It is difficult to conceive, having regard to the orders issued by
\nthe Full Bench, that the Legislature were not aware of the orders
\npassed by the High Court. In any event the Full Bench of the High
\nCourt has stated that the directions issued by it would be subject to
\nthe new enactment.\n<\/p>\n
    We, therefore, are of the opinion that Madan Mohan Pathak
\n(supra) has no application to the present cases.\n<\/p>\n
VESTED RIGHT VIS-@-VIS ARTICLE 14<\/p>\n
    15. A vested right has been defined in P. Ramanatha Aiyar’s
\nAdvanced Law Lexicon, 3rd edition, page 4888, in the following
\nterms:\n<\/p>\n
    “Vested rights. Property rights.<\/p>\n
    The   expression      `vested   right’   means   an   absolute   or
\n    indefeasible right. It is an immediate fixed right in present or
\n   future enjoyment in respect of property. The claim based on
\n   the vested right or settled expectation to obtain sanction
\n   cannot be set up against statutory provisions. It cannot be
\n   countenanced against public interest and conveniences which
\n   are sought to be served.”\n<\/p>\n
   In Southern Petrochemical Industries Co. Ltd. v. Electricity
\nInspector & ETIO<\/a> [(2007) 5 SCC 447], this Court held:\n<\/p>\n
    “106. Furthermore, exemption from payment of tax in favour of
\n   the appellants herein would also constitute a right or privilege.
\n   The expression “privilege” has a wider meaning than right. A
\n   right may be a vested right or an accrued right or an acquired
\n   right. Nature of such a right would depend upon and also vary
\n   from statute to statute. It has been so held by this Court, while
\n   construing Section 6 of the General Clauses Act, in Gurcharan
\n   Singh Baldev Singh v. Yashwant Singh<\/a> in the following terms:
\n   (SCC p. 432, para 3)<\/p>\n
   “The objective of the provision is to ensure protection of any
\n   right or privilege acquired under the repealed Act. The only
\n   exception to it is legislative intention to the contrary. That is,
\n   the repealing Act may expressly provide or it may impliedly
\n   provide against continuance of such right, obligation or
\n   liability.”\n<\/p>\n
   [See also Kusumam Hotels Private Limited v. Kerala State
\nElectricity Board and Others<\/a> (2008) 13 SCC 213 and State of
\nPunjab and Others v. Bhajan Kaur and Others<\/a> (2008) 12 SCC 112]<\/p>\n
   The question as to whether the members of Scheduled Tribe
\nhad a vested right or not, may now be considered. The properties
\nwere sold by them to persons who were not the members of the
\nSchedule Tribes long back. Such transactions, when entered into,
\nwere valid being not barred by any statute. The vendees, thus,
\nacquired indefeasible right. They, however, were invalidated by
\nSection 5 of the 1975 Act. The consequence of rendition of such
\ntransactions as invalid was to restore the lands back to possession
\nof the tribals wherefor certain procedural requirements were to be
\ncomplied with. The 1975 Act, however, was only brought into force
\nin 1986, that too with retrospective effect from 1982. In the
\nmeanwhile, many purchasers again acquired prescriptive rights. It
\nwas furthermore made effective only when the Rules were framed
\nin 1986.\n<\/p>\n
   The right of restoration was of two kinds, one, in respect of
\nagricultural land and the other in regard to non-agricultural land.
\nWe intend to deal with them separately. Indisputably, despite the
\n1975 Act having been brought in force and the Rules having been
\nframed for the effective implementation thereof, the State and the
\nRevenue Officers took no steps for implementation therefor for a
\nlong time. The process started only when a writ of mandamus was
\nissued by the High Court. For its implementation, the substance of
\nthe proceedings has been noticed by us heretobefore. The 1975
\nAct and the 1986 Rules provided for several stages. The
\nprocedure laid down in the 1986 Rules consists of filing of
\napplication for restoration, calling for objections, determination of
\nthe issues, filing of appeals. Once that stage reached finality, the
\napplicants are required to pay compensation to the land holder in
\nterms of Section 9 of the 1975 Act which was a condition
\nprecedent therefor.\n<\/p>\n
    The 1975 Act contemplated raising of loan from the
\ngovernment by the members of the Scheduled Tribe, subject to the
\nconditions laid down in the Rules. The procedure for grant of loan
\nand consequent payment of compensation to the owners of land
\nwas a pre-condition for actual restoration thereof.\n<\/p>\n
    When, thus, loans are raised and amount of compensation is
\npaid to the transferees, in our opinion, only then the vested right
\nfor getting back possession of the lands gets accrued and not prior
\nthereto. We say so because the 1975 Act itself provides for a
\nstatute depriving the land holders from a right of property, which is
\notherwise protected by reason of Article 300-A of the Constitution
\nof India. It is also a human right. [See Vimlaben Ajitbhai Patel v.
\nVatslaben Ashokbhai Patel and Others<\/a> (2008) 4 SCC 649 and
\nUnion of India & Ors. v. M\/s. Martin Lottery Agencies Ltd.<\/a> [(2009 4
\nSCALE 34]<\/p>\n
    The provisions of the 1975 Act, therefore, deserve strict
\nconstruction. Although we are not required to consider the validity
\nof the 1975 Act stricto sensu, we may place on record that even
\nthe decisions of this Court have declared similar provisions to be
\nintra vires.\n<\/p>\n
    Before, however, we advert thereto, we would like to make
\nsome general observations.\n<\/p>\n
    No territory in the State of Kerala has been declared as
\nScheduled Area within the meaning of Article 244 read with the
\nFifth Schedule of the Constitution of India. A distinction, thus, must
\nbe borne in mind in regard to the enactments which deal with tribal
\nareas and which do not. If a law (e.g. Scheduled Area Regulation
\nAct) deals with the tribal areas, the same amends provisions of the
\nother Acts including the Limitation Act, 1963. If a person is in
\npossession of a land, which he had obtained by reason of a valid
\ntransaction as it then was, which was subsequently sought to be
\ninvalidated, he would ordinarily receive protection by reason of
\ndoctrine of prescription provided for under the Limitation Act, by
\nreason whereof if he has been in possession thereof for a period of
\nmore than 12 years, he would have acquired an indefeasible right
\nthereto despite the fact that the transaction has been invalidated
\nby a later Act. It was so held in Manchegowda (supra). Therein, a
\ndistinction was made between a defeasible right and an
\nindefeasible right and this Court was concerned with a transaction
\nwhich was voidable in nature.\n<\/p>\n
    It is, however, not a case where a transfer has been made in
\ncontravention of the terms of the grant or any law, regulation or
\nrule governing such grant which could be legally avoided or
\npossession thereof could be recovered through process of law.
\nTherein, this Court clearly held:\n<\/p>\n
         “24. Though we have come to the conclusion that the Act
\n    is valid, yet, in our opinion, we have to make certain aspects
\n    clear. Granted lands which had been transferred after the
\n    expiry of the period of prohibition do not come within the
\n    purview of the Act, and cannot be proceeded against under the
\n    provisions of this Act. The provisions of the Act make this
\n    position clear, as Sections 4 and 5 become applicable only
\n    when granted lands are transferred in breach of the condition
\n    relating to prohibition on transfer of such granted lands.<\/p><\/blockquote>\n
    Granted lands transferred before the commencement of the
\n    Act and not in contravention of prohibition on transfer are
\nclearly beyond the scope and purview of the present Act. Also
\nin case where granted lands had been transferred before the
\ncommencement of the Act in violation of the condition
\nregarding prohibition on such transfer and the transferee who
\nhad initially acquired only a voidable title in such granted lands
\nhad perfected his title in the granted lands by prescription by
\nlong and continuous enjoyment thereof in accordance with law
\nbefore the commencement of the Act, such granted lands
\nwould also not come within the purview of the present Act, as
\nthe title of such transferees to the granted lands has been
\nperfected before the commencement of the Act. Since at the
\ndate of the commencement of the Act the title of such
\ntransferees had ceased to be voidable by reason of acquisition
\nof prescriptive rights on account of long and continued user for
\nthe requisite period, the title of such transferees could not be
\nrendered void by virtue of the provisions of the Act without
\nviolating the constitutional guarantee. We must, therefore, read
\ndown the provisions of the Act by holding that the Act will apply
\nto transfers of granted lands made in breach of the condition
\nimposing prohibition on transfer of granted lands only in those
\ncases where the title acquired by the transferee was still
\nvoidable at the date of the commencement of the Act and had
\nnot lost its defeasible character at the date when the Act came
\ninto force. Transferees of granted lands having a perfected and
\nnot a voidable title at the commencement of the Act must be
\nheld to be outside the pale of the provisions of the Act. Section
\n4 of the Act must be so construed as not to have the effect of
\nrendering void the title of any transferee which was not
\nvoidable at the date of the commencement of the Act.”
\nIn Lingappa (supra), this Court held:\n<\/p>\n
“26. The impugned Act in its true nature and character is a law
\nrelating to transfers and alienations of agricultural lands by
\nmembers of Scheduled Tribes in the State to persons not
\nbelonging to Scheduled Tribes. Such a law does not fall within
\nEntries 6 and 7 in List III but is within Entry 18 in List II. We
\nmay here set out Entries 6 and 7 in List III:\n<\/p>\n
“6. Transfer of property other than agricultural land; registration
\nof deeds and documents.\n<\/p>\n
7. Contracts, including partnership, agency, contracts of
\ncarriage, and other special forms of contracts, but not including
\ncontracts relating to agricultural lands.”\n<\/p>\n
The words “other than agricultural land” in Entry 6 and the
\nwords “but not including contracts relating to agricultural land”
\nin Entry 7 in List III have the effect of delimiting the legislative
\npower of the Union to make a law with respect to transfers and
\nalienations of agricultural lands or with respect to contracts in
\nrelation thereto. The power to legislate cannot be denied to the
\nState on the ground that the provisions of Sections 3(1) and 4
\nwhich provide for annulment of transfers by tribals incidentally
\ntrench upon the existing law, namely, the Transfer of Property
\nAct, 1882 or a law made by Parliament viz. the Specific Relief
\nAct, 1963. The power of the State Legislature to make a law
\nwith respect to transfer and alienation of agricultural land under
\nEntry 18 in List II carries with it not only a power to make a law
\nplacing restrictions on transfers and alienations of such lands
\nincluding a prohibition thereof, but also the power to make a
\nlaw to reopen such transfers and alienations. Such a law was
\nclearly within the legislative competence of the State
\nLegislature being relatable to Entry 18 in List II of the Seventh
\nSchedule.”\n<\/p>\n
It was observed:\n<\/p>\n
“…That apart, members of Scheduled Tribes i.e. tribals who
\nare mostly aboriginals constitute a distinct class who need a
\nspecial protection of the State. Further, the question as to how
\nfar and by what stages such laws are to be implemented
\ninvolves a matter of policy and therefore beyond the domain of
\nthe courts. Secondly, the Act no doubt makes a distinction
\nbetween a non-tribal transferee who had diverted the lands
\nobtained by him under a transfer from a tribal during the period
\nfrom April 1, 1957 to July 6, 1974 and had put such lands to
\nnon-agricultural purpose, and other non-tribal transferees who
\ngot into possession under transfers effected by tribals during
\nthe same period but continued to use the lands for agricultural
\npurposes. There is no question of any differential treatment
\nbetween two classes of persons equally situate. When a part
\nof the land is diverted to a non-agricultural purpose viz. the
\nconstruction of a dwelling house or the setting up of an
\nindustry, the State Legislature obviously could not have made
\na law for annulment of transfer of such lands by tribals under
\nEntry 18 in List II as the lands having been diverted to non-
\nagricultural purposes ceased to be agricultural lands. In the
\ncase of such non-agricultural land, if the State Legislature
\nmade such a law it would not be effective unless it was
\nreserved for the assent of the President and received such
\nassent.”\n<\/p>\n
    Therein, thus, this Court found that Sub-section (1) of Section
\n3 of Maharashtra Restoration of Lands to Scheduled Tribes Act,
\n1974 made detailed provision to strike a balance between the
\nmutual rights and obligations of the parties, upon making of an
\norder for restoration of such land to the members of the Scheduled
\nTribes.\n<\/p>\n
    It was furthermore held that the said Act having been placed in
\nthe Ninth Schedule of the Constitution of India, the validity thereof
\ncould not have been challenged for contravention of Articles 14,
\n19(1)(f) or Article 31 of the Constitution of India.\n<\/p>\n
    Yet again in P. Rami Reddy and Others v. State of Andhra
\nPradesh and Others<\/a> [(1988) 3 SCC 433], there existed a law
\nprohibiting transfer in the agency tract areas, viz., the Agency
\nTracts Interest and Land Transfer Act, 1917. Those areas were
\nnotified as Scheduled Areas after coming into force of the
\nConstitution by reason of the Scheduled Area (Part `A’ States)
\nOrder, 1950. By reason of the power conferred on the Governor of
\nthe State by Para 5(2) of the Fifth Schedule, the regulations
\nnamed as A.P. Scheduled Areas Land Transfer Regulation, 1959
\nwere made. In the aforementioned backdrop, it was opined:\n<\/p>\n
    “19…The community cannot shut its eyes to the fact that the
\n    competition between the “tribals” and the “non-tribals” partakes
\n    of the character of a race between a handicapped one-legged
\n    person and an able-bodied two-legged person. True, transfer
\n    by “non-tribals” to “non-tribals” would not diminish the pool. It
\n    would maintain status quo. But is it sufficient or fair enough to
\n    freeze the exploitative deprivation of the “tribals” and thereby
\n    legalize and perpetuate the past wrong instead of effacing the
\n   same? As a matter of fact it would be unjust, unfair and highly
\n   unreasonable merely to freeze the situation instead of
\n   reversing the injustice and restoring the status quo ante. The
\n   provisions merely command that if a land holder voluntarily
\n   and on his own volition is desirous of alienating the land, he
\n   may do so only in favour of a “tribal”. It would be adding insult
\n   to injury to impose such a disability only on the tribals (the
\n   victims of oppression and exploitation themselves) and
\n   discriminate against them in this regard whilst leaving the “non-\n<\/p><\/blockquote>\n
   tribals” to thrive on the fruits of their exploitation at the cost of
\n   “tribals”. The “non-tribal” economic exploiters cannot be
\n   installed on the pedestal of immunity and accorded a privileged
\n   treatment by permitting them to transfer the lands and
\n   structures, if any, raised on such lands, to “non-tribals” and
\n   make profits at the cost of the tribals. It would not only
\n   tantamount to perpetuating the exploitation and injustice, it
\n   would tantamount to placing premium on the exploitation and
\n   injustice perpetrated by the non-tribals. Thus it would be the
\n   height of unreasonableness to impose the disability only on the
\n   tribals whilst leaving out the “non-tribals”. It would also be
\n   counterproductive to do so.”\n<\/p>\n
   However, in K.T. Huchegowda v. Dy. Commissioner<\/a> [(1994) 3
\nSCC 536], this Court held:\n<\/p>\n
   “8. On a plain reading, granted land will mean, any land
\n   granted by the Government to a person, who is a member of
\n   the Scheduled Castes or Scheduled Tribes which includes
\n   land allotted to such persons. Grant may be of different types;
\n   it may be by absolute transfer of the interest of the State
\nGovernment to the person concerned; it may be only by
\ntransfer of the possession of the land, by way of allotment,
\nwithout conveying the title over such land of the State
\nGovernment. If by grant, the transferee has acquired absolute
\ntitle to the land in question from the State Government, then
\nsubject to protection provided by the different provisions of the
\nAct, he will be subject to the same period of limitation as is
\nprescribed for other citizens by the provisions of the Limitation
\nAct, in respect of extinguishment of title over land by adverse
\npossession. On the other hand, if the land has been allotted by
\nway of grant and the title remains with the State Government,
\nthen to extinguish the title that has remained of the State
\nGovernment by adverse possession, by a transferee on the
\nbasis of an alienation made in his favour by an allottee, the
\nperiod of limitation shall be 30 years. Incidentally, it may be
\nmentioned that some of the States in order to protect the
\nmembers of the Scheduled Tribes from being dispossessed
\nfrom the lands which belong to them and of which they are
\nabsolute owners, for purpose of extinguishment of their title by
\nadverse possession, have prescribed special period of
\nlimitation, saying that it shall be 30 years. In Bihar, vide
\nRegulation No. 1 of 1969, in Article 65 of the Limitation Act, it
\nhas been prescribed that it would be 30 years in respect of
\nimmovable property belonging to a member of the Scheduled
\nTribes as specified in Part III to the Schedule to the
\nConstitution (Scheduled Tribes) Order, 1950.\n<\/p>\n
9. There is no dispute that so far as the Act with which we are
\nconcerned, no special period of limitation has been prescribed,
\nin respect of lands which have been granted to the members of
\nthe Scheduled Castes and Scheduled Tribes with absolute
\nownership by the State Government. In this background, when
\nthis Court in the case of Sunkara Rajayalakshmi v. State of
\nKarnataka said that the period of limitation, which has to be
\ntaken into account for the purpose of determining, whether the
\ntitle has been perfected by prescription, shall be that which
\nruns against the State Government and therefore it would be
\n30 years and not 12 years, has to be read in context with the
\nlands, the ownership whereof, has not been transferred
\nabsolutely, to the members of the Scheduled Castes and
\nScheduled Tribes; the lands having been only allotted to them,
\nthe title remaining with the State Government. The cases
\nwhere the transfer by the State Government by way of grant
\nhas been absolute, then unless there is an amendment so far
\nthe period of limitation is concerned, it is not possible to apply
\nthe special limitation of 30 years, so far such grantees are
\nconcerned, when the question to be determined, is as to
\nwhether a transferee in contravention of the terms of the grant,
\nhas perfected his title by remaining in continuous and adverse
\npossession. The transferee, who has acquired the land from
\nthe grantee, in contravention of the terms of the grant shall
\nperfect his title by adverse possession by completing the
\nperiod of 12 years. When this Court said in its main judgment,
\nin the case of Manchegowda v. State of Karnataka that in
\ncases where granted lands had been transferred before the
\ncommencement of the Act in violation of the condition,
\nregarding prohibition on such transfer and the transferee who
\nhad initially acquired only a voidable title, in such granted lands
\nhad perfected his title in the granted lands by prescription by
\n    long and continuous enjoyment thereof in accordance with law
\n    before the commencement of the Act, has to be read, for
\n    purpose of determining the period of limitation in respect of
\n    lands granted with absolute ownership, to mean 12 years and
\n    grant by way of allotment without transfer of the ownership in
\n    favour of the grantee, to mean 30 years.”\n<\/p>\n
    [See also Papaiah v. State of Karnataka<\/a> (1996) 10 SCC 533]<\/p>\n
    The statutory provisions, therefore, must be interpreted in the
\nlight of the constitutional provisions.\n<\/p>\n
    The decisions of this Court, therefore, are clear and
\nunambiguous. In a case involving members of the Scheduled Tribe
\nliving in Scheduled Area the period of limitation can be extended,
\nbut it is not permissible in respect of an area which has not been
\ndeclared to be a Scheduled Area. When a person acquires an
\nindefeasible right, he can be deprived therefrom only by taking
\nrecourse to the doctrine of Eminent Domain. If a person is sought
\nto be deprived of an indefeasible right acquired by him, he should
\nbe paid an amount of compensation. In a case of this nature,
\ntherefore, where an amount of compensation has not actually been
\ntendered, the vendees of the land could not be deprived of their
\nright to be dispossessed. In that view of the matter, a distinction
\nmust be made between a case where an amount of compensation
\nhas been paid and in a case where it has not been. If a vested
\nright has not been taken away, the question of applicability of
\nArticle 14 of the Constitution of India would not arise.\n<\/p>\n
    The High Court, however, proceeded to apply Article 14 of the
\nConstitution of India on the premise that the provisions of the 1999
\nAct clearly seek to destroy the right conferred on Scheduled Area
\nby Act 31 of 1975. The approach of the High Court being not
\ncorrect, the same cannot be sustained.\n<\/p>\n
REASON FOR AMENDMENT<\/p>\n
    16. This brings us to the question as to whether the 1999 Act is
\ninvalid inter alia because the State was apprehensive that the
\nassignees may offer organized resistance for implementation of
\nthe 1975 Act and the State wanted to avert a conflict between the
\ntribals and the non-tribals. The short answer to the said question is
\nthat the State cannot shut its eyes to the ground realities. The
\nStatement of Objects and Reasons would clearly show that the
\nState did not take an action in a half-hearted manner. It consulted
\nthe tribal organizations. It is stated in its Counter Affidavit by the
\nState before the High Court as under:\n<\/p>\n
    “… Under the above circumstances, urgent steps were taken
\n    to have discussion with the various tribal organisations did not
\n    insist upon getting the very same land that had been alienated
\n    but would prefer to obtain an equal extent of land from the
\n    Government. Many organisations did not insist that the Act 31
\n    of 1975 should be implemented in its original form. The
\n    Government also had serious discussions with various political
\n    parties and other concerned with tribal welfare. Discussions
\n    were also held with the present occupants of the alienated
\n    tribal lands.<\/p><\/blockquote>\n
    On the basis of the discussions and deliberations the
\n    Government thought it proper to introduce a suitable legislation
\n    which would adequately take care of the interests of the Tribals
\n    and also find a solution to the problems of landlessness and
\n    homelessness     of   the   Tribals.   Accordingly,   the   Kerala
\n    Restriction on transfer by and Restoration of Land to the
\n    Scheduled Tribes Act, 1999 was introduced in the State
\n    Assembly and the same was unanimously passed by the
\n    Assembly. The Bill became an Act (Act 12 of 1999) on
\n    20.4.1999.”\n<\/p>\n
    If the contention of the State is correct that most of the tribal
\norganizations did not insist upon getting the same land that they
\nhad been alienated from but would have preferred to have
\nalternate land allotted to them by the government and as many
\norganizations insisted that the 1975 Act may not be implemented
\nin its original form, we think that action of the State cannot be
\ntermed to be arbitrary so as to attract the wrath of the equality
\nclause contained in Article 14 of the Constitution of India.\n<\/p>\n
    While doing so, the State had taken into consideration the
\nchange in the situation by reason of passage of time. The tribals
\nhad been out of possession of their lands for decades. It was for
\nthe elected representatives of the people to determine as to
\nwhether by reason of the provisions of the 1999 Act the members
\nof the Scheduled Tribe would face dislocation or that it would
\nimpinge on their culture connected with their lands.\n<\/p>\n
    The ground realities are presumed to be known to the State
\nand if anybody raises a contrary contention, it would be for him to
\nbring on record sufficient materials to show so as to enable the
\ncourt to arrive at a conclusion that the State’s action was arbitrary.\n<\/p>\n
    It is furthermore a well-settled principle of law that the superior
\ncourt in exercise of their power of judicial review of legislation
\nwould not ordinarily determine the merit of the legislation by
\nentering into a broad question as to whether materials placed
\nbefore the Legislature were sufficient for bringing out the
\nlegislation in question or not.\n<\/p>\n
    Such inquisitorial inquiry on the part of the court, in our
\nopinion, is beyond the province of the court.\n<\/p>\n
BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975
\nACT<\/p>\n
    17. The 1999 Act, in our opinion, is more beneficial in nature
\nso far as the people of the State of Kerala are concerned.\n<\/p>\n
    The 1975 Act came into force with retrospective effect from
\n1.01.1982. But, as noticed hereinbefore, the Rules were framed
\nonly on 18.10.1986. Act 12 of 1999, however, came into force on
\n20.04.1999 but was given a retrospective effect and retroactive
\noperation from 24.01.1986.\n<\/p>\n
    We heretobelow may notice a comparative chart of the salient
\nprovisions of the two Acts:\n<\/p>\n
Act 31\/75 – Came into force on
\n  01.01.1982 Pages 135 – 142<\/p>\n
2(b) “Immovable property” defined as
\n  including standing crops and trees.<\/p>\n
  Act applies to such property<\/p>\n
4.Transfer of any immovable property
\n  by a tribal to a non tribal without
\n  previous    consent     of      competent
\n  authority after commencement of the
\n  Act shall be void.\n<\/p>\n
5.Transfer of immovable property by
\n Tribal to non tribal after 01.01.1960
\n shall be deemed to be invalid<\/p>\n
6(1)   The Tribal whose transfer is
\n invalidated under Sections 4 and 5
\n shall be entitled to restoration of
\n possession of the property.\n<\/p>\n
 Sub Section (5) provide for a remedy
\n of appeal to the aggrieved persons to
\n the competent authority.\n<\/p>\n
7. Govt. may take Suo-moto action for
\nrestoration\n<\/p>\n
11. Where possession is restored to
\ntribal under Section 6 he shall pay to
\nthe     quantum        transferee     the
\nconsideration received as also the
\nvalue of the improvement effected by
\nthe transferee as determined by the
\ncompetent authority.\n<\/p>\n
12. Government may advance loans to
\ntribal for; payment of the amount u\/s.11
\nto be repaid in half yearly or annual
\ninstalment and to be recovered as an
\narrear of land revenue if kept in arrears.\n<\/p>\n
8.1 Similar to section 11 of Act 31 of 75\n<\/p>\n
9. Government shall provide grant to eligible tribal\/liable to pay the
\n   amount under Section 8.\n<\/p>\n
10.      (1) Government shall assign land to landless tribal
\n   families not exceeding 40 Ares in extent in his own district
\n   within two years or extended time.\n<\/p>\n
   (2) If any family owns land below 40 Ares I extent Govt. to
\n   assign such extent of land as is necessary to make up 40 Ares.\n<\/p>\n
11.      Schedule Tribe rehabilitation and Welfare Fund to be
\n   constituted for construction of houses for tribal families and for
\n   other welfare measures.\n<\/p>\n
12.Provision for legal assistance 22
\nRepeal of Act 31 of 1975 with usual
\nsaving clause.\n<\/p>\n
    Broadly, speaking, the provisions of the 1999 Act are more
\nbeneficial to the members of the Scheduled Tribe. For determining
\nthe said question, we must take a holistic view of the matter.
\nHowever, we are not oblivious of the fact that restoration in respect
\nof non-agricultural land and to the extent of 2 acres are not
\ncontemplated by the 1999 Act. We are also not oblivious of the fact
\nthat, it would appear, on the basis of the statistics furnished by the
\nlearned Additional Advocate General before the High Court, to
\nwhich we have referred to heretobefore itself that a large number
\nof members of the Scheduled Tribe would be deprived of the
\nbenefit of restoration of their own lands constituted in forest areas.\n<\/p>\n
    In the counter-affidavit filed by the State, it is stated:\n<\/p>\n
    “It is submitted that the Government found that Act 31 of 1975
\n    would not really serve the purpose of ameliorating the
\n    problems of the scheduled tribes and might instead lead to law
\n    and order situation in various parts of the State. After a
\n    comprehensive study of the matter the Government passed
\n    Act 12 of 1999. The allegation that the intention of Act 12 of
\n    1999 is other than protection of the rights of schedule tribes is
\n    incorrect and denied. A reading of all the provisions of the Act
\n    12 of 1999 would make it clear that the legislature has kept the
\n    over all interests of the tribals and all the people of the State is
\n    general while enacting Act 12 of 1999. It is submitted that no
\n    right conferred by Act 31 of 1975 has been taken away by Act
\n    12 of 1999. The allegation that Act 12 of 1999 is meant to
\n   protect the right of tribals is incorrect and is denied. It is
\n   submitted that the various provisions of Act 12 of 1999 had
\n   already been delineated elsewhere in the counter affidavit and
\n   the reasons for the enactment of Act 12 of 1999 have also
\n   been explained.”\n<\/p>\n
   Out of 4724 applications for restoration filed, 1475 applications
\ninvolved transfer of less than 50 cents, 898 applications involved
\ntransfer of “extent between 50 cents and 1 acre”, 904 applications
\ncovered cases of “transfer of extent between 1 and 2 acres and
\n1074 applications related to “transfer of extent between 2 acres
\nand 5 acres and that only 373 applications involved cases of
\ntransfer of more than 5 acres or 2 hectares.\n<\/p>\n
   The State has clearly brought on record the fact that it had
\nconducted further studies wherefrom it came to learn that about
\n12,000 tribal families in the State did not possess any land of their
\nown and 30,000 families did not have any house of their own.\n<\/p>\n
   It is necessary, according to us, to bear in mind that the law
\npostulates grant of compensation in a case where the right on a
\nland is sought to be taken away. The 1975 Act postulates grant of
\ncompensation to the alienees, the amount wherefor was required
\nto be determined by a competent authority. The amount of
\ncompensation so determined was to be paid by the members of
\nthe Scheduled Tribe to their vendees in respect whereof he was to
\ntake loan from the State. The amount of loan taken was, thus,
\nrequired to be repaid. The 1999 Act, however, provides for a grant
\nwhich need not be repaid.\n<\/p>\n
   The members of the Scheduled Tribe were further to get one
\nacre of land from the State although they might have transferred
\neven 5 or 10 cents of land. In the case of a transfer made upto two
\nacres, he is to be allotted two acres of land by the State. Whether
\nsuch land is available with the State Government or not is a
\ndifferent question, which we intend to deal with separately. The
\nstatute also contemplates building of houses for the members of
\nthe Scheduled Tribes. It provides that the land to the extent of one
\nacre also be provided to the landless tribals. It contemplates
\nconstitution of a rehabilitation fund.\n<\/p>\n
    The 1999 Act, therefore, if given a holistic view, is more
\nbeneficial to the members of the Scheduled Tribe than the 1975
\nAct. If the State contemplated a legislative policy for grant of more
\nbenefits to a vast section of people, taking care of not only
\nrestoration of land but those who have not transferred any land at
\nall or otherwise landless, the statute by no stretch of imagination
\ncan be treated to be an arbitrary and an unreasonable one.\n<\/p>\n
ARTICLE 21 ISSUE<\/p>\n
    18. Article 21 deals with right to life and liberty. Would it bring
\nwithin its umbrage a right of tribals to be rehabilitated in their own
\nhabitat is the question? If the answer is to be rendered in the
\naffirmative, then, for no reason whatsoever even an inch of land
\nbelonging to a member of Scheduled Tribe can ever be acquired.
\nFurthermore, a distinction must be borne between a right of
\nrehabilitation required to be provided when the land of the
\nmembers of the Scheduled Tribe are acquired vis-`-vis a
\nprohibition imposed upon the State from doing so at all. The
\nquestion must be considered from another angle. The Scheduled
\nTribes are not in an agency area or Scheduled Area. The literacy
\nrate of the tribals of Kerala is 57% which is much more than the
\nnational average. Most of the tribal children have elementary
\neducation. In the schools and colleges of Kerala, Malayalam, Tamil
\nor English is taught. It has been noticed by various writers that the
\ntribal teachers have not been interacting with the students in the
\ntribal terms and, thus, gradually the tribal students have lost
\nrespect for their language and begun to disregard their language,
\ntheir culture and, thus, their own primitive way of life. [See Tribes
\nof Kerala – Identity Crisis by Rayson K. Alex]<\/p>\n
   The learned author states:\n<\/p>\n
   “What is the criterion for the government to label a tribe as a
\n   “scheduled” tribe in the constitution? Has the government
\n   conducted a detailed study on the culture, traditions, their
\n   interrelationship with the place they live in, their socio-
\n   economic structures and judiciary before labeling them as
\n   “scheduled” tribes? The reason for this categorization can be
\n   attributed to their “supposed” backwardness and not their
\n   distinct identity from the dominant society of the country.
\n   Without taking into consideration aforementioned aspects of
\n   the culture of the tribes, to create “awareness” and to finally
\n   “develop” (in the narrow sense of the word) them, the tribes
\n   were forced to merge and condition themselves along the lines
\n   of the so-called “main-stream” Indian society. “When that was
\n   challenged,    the   ideologues    of   the   aggressing    society
\n   presented the theory of “integration” which in reality is the
\n   other side of the same coin. And now has come the final blow
\n   from the armory of the India state for the indigenous people of
\n   the country in the form of total denial of their existence in India.
\n   “India does not have indigenous population”! Thus declared
\n   the Indian Permanent Mission in the United Nation in Geneva
\n   (Mullick et al 7).\n<\/p>\n
         This is not an argument made to showcase the tribes of
\n   Kerala as “scheduled tribes.” Now a question of serious
\n   importance can be raised: Is there a need to uphold\/preserve
\n   this indigenous culture? The outer (can be read as “other”)
\n   influences have spread their roots so strong that their minds
\n   have been colonized (can be read as `altered’). Even though
\n   the tribes carry wonderful memories of their rich past, they do
\n   not want to be in the same situation as they were in days of
\n   yore. So, the need for conservation of the tribal culture is the
\n   problem of the non-tribes, especially the researchers, scholars
\n   and    activists     working   in   this   area.   Intentionally   or
\n   unintentionally, changes are the only constant feature of any
\n   culture. It can be observed that no culture can retain its flavor
\n   at different points of time. But the questions to be addressed to
\n   the “main-stream” and its government are: Are the tribes given
\n   freedom to accept or deny what ever they want? Are they
\n   given a free space to think, act and establish (as they used to
\n   in days of yore?)”\n<\/p>\n
   We may notice that in Indigenous and Tribal Populations
\nConvention, 1957 which has been ratified by 27 countries including
\nIndia contained following clauses:\n<\/p>\n
   “Article 11<\/p>\n
   The right of ownership, collective or individual, of the members
\n   of the populations concerned over the lands which these
\n   populations traditionally occupy shall be recognised.\n<\/p>\n
   Article 12\n<\/p>\n
1. The populations concerned shall not be removed without
\ntheir free consent from their habitual territories except in
\naccordance with national laws and regulations for reasons
\nrelating to national security, or in the interest of national
\neconomic development or of the health of the said populations.\n<\/p>\n
2. When in such cases removal of these populations is
\nnecessary as an exceptional measure, they shall be provided
\nwith lands of quality at least equal to that of the lands
\npreviously occupied by them, suitable to provide for their
\npresent needs and future development. In cases where
\nchances of alternative employment exist and where the
\npopulations concerned prefer to have compensation in money
\nor in kind, they shall be so compensated under appropriate
\nguarantees.\n<\/p>\n
3. Persons thus removed shall be fully compensated for any
\nresulting loss or injury.\n<\/p>\n
Article 13<\/p>\n
1. Procedures for the transmission of rights of ownership and
\nuse of land which are established by the customs of the
\npopulations    concerned    shall   be   respected,   within   the
\nframework of national laws and regulations, in so far as they
\nsatisfy the needs of these populations and do not hinder their
\neconomic and social development.\n<\/p>\n
2. Arrangements shall be made to prevent persons who are
\nnot members of the populations concerned from taking
\nadvantage of these customs or of lack of understanding of the
\nlaws on the part of the members of these populations to secure
\nthe ownership or use of the lands belonging to such members.”
\n    Thus, removal of the population, by way of an exceptional
\nmeasure, is not ruled out. It is only subject to the condition that
\nlands of quality at least equal to that of the lands previously
\noccupied by them, suitable to provide for their present needs and
\nfuture development. We may, however, notice that this Convention
\nhas not been ratified by many countries in the Convention held in
\n1989. Those who have ratified the 1989 Convention are not bound
\nby it.\n<\/p>\n
    Furthermore, the United Nations adopted a declaration on the
\nrights of indigenous peoples in September, 2007. Articles 3 to 5
\nthereof read as under:\n<\/p>\n
    “Article 3<\/p>\n
    Indigenous peoples have the right to self-determination. By
\n    virtue of that right they freely determine their political status
\n    and freely pursue their economic, social and cultural
\n    development.\n<\/p><\/blockquote>\n
    Article 4<\/p>\n
    Indigenous     peoples,    in   exercising    their   right   to   self-
\n    determination, have the right to autonomy or self-government
\n    in matters relating to their internal and local affairs, as well as
\n    ways and means for financing their autonomous functions.\n<\/p><\/blockquote>\n
    Article 5<\/p>\n
    Indigenous peoples have the right to maintain and strengthen
\n    their distinct political, legal, economic, social and cultural
\n    institutions, while retaining their right to participate fully, if they
\n    so choose, in the political, economic, social and cultural life of
\n    the State.”\n<\/p><\/blockquote>\n
   It is now accepted that the Panchasheel doctrine which
\nprovided that the tribes could flourish and develop only if the State
\ninterfered minimally and functioned chiefly as a support system in
\nview of passage of time is no longer valid. Even the notion of
\nautonomy contained in the 1989 Convention has been rejected by
\nIndia. However, India appears to have softened its stand against
\nautonomy for tribal people and it has voted in favour of United
\nNations declaration on the rights of indigenous people which
\naffirms various rights to autonomy that are inherent in the tribal
\npeoples of the world. This declaration, however, is not binding.\n<\/p>\n
   This Court furthermore in Narmada Bachao Andolan v. Union
\nof India and Others<\/a> [(2000) 10 SCC 664] while considering the
\nvalidity of acquisition of lands by the State of Madhya Pradesh for
\na project known as Sardar Sarovar Project (SSP) by constructing a
\ndam on river Narmada as a result whereof the residence of tribals
\nin various States, viz., Madhya Pradesh, Gujarat, Maharashtra and
\nRajasthan were affected, opined as under:\n<\/p>\n
        “62. The displacement of the tribals and other persons
\n   would not per se result in the violation of their fundamental or
\n   other rights. The effect is to see that on their rehabilitation at
\n   new locations they are better off than what they were. At the
\n   rehabilitation sites they will have more and better amenities
\n   than those they enjoyed in their tribal hamlets. The gradual
\n   assimilation in the mainstream of the society will lead to
\n   betterment and progress.”\n<\/p>\n
   For the purpose of going into the question with regard to the
\nadjudication of the water dispute regarding the inter-State River
\nNarmada and the river valley thereof in terms of the provisions of
\nthe inter-State Water Disputes Act, the award inter alia provided
\nfor relief and rehabilitation stating that no submergence of an area
\nwould take place unless the oustees are rehabilitated.\n<\/p>\n
    This Court referred to Article 12 of the ILO Convention No. 107
\nholding:\n<\/p>\n
           “58. The said article clearly suggested that when the
\n    removal of the tribal population is necessary as an exceptional
\n    measure, they shall be provided with land of quality at least
\n    equal to that of the land previously occupied by them and they
\n    shall be fully compensated for any resulting loss or injury. The
\n    rehabilitation package contained in the award of the Tribunal
\n    as improved further by the State of Gujarat and the other
\n    States prima facie shows that the land required to be allotted
\n    to the tribals is likely to be equal, if not better than what they
\n    had owned.”<\/p><\/blockquote>\n
    Noticing that construction of a dam is of utmost importance for
\ndevelopment of the country as it plays an important role in
\nproviding irrigation for food security, domestic and industrial water
\nsupply, hydroelectric power and keeping flood waters back. It
\nrepelled a submission that the execution of SSP without a
\ncomprehensive assessment and evaluation of its environmental
\nimpact and a decision regarding its acceptability would be in
\nviolation of the rights of the affected people under Article 21 of the
\nConstitution of India stating that requisite environmental clearance
\nhad been taken opining that the same had been granted on due
\napplication of mind. It took into consideration the question of relief
\nand rehabilitation, consequent upon the displacement of people,
\nholding:\n<\/p>\n
        “151. The displacement of the people due to major river
\n   valley projects has occurred in both developed and developing
\n   countries. In the past, there was no definite policy for
\n   rehabilitation of displaced persons associated with the river
\n   valley projects in India. There were certain project-specific
\n   programmes for implementation on a temporary basis. For the
\n   land acquired, compensation under the provisions of the Land
\n   Acquisition Act, 1894 used to be given to the project-affected
\n   families. This payment in cash did not result in satisfactory
\n   resettlement of the displaced families. Realising the difficulties
\n   of   displaced   persons,     the   requirement   of   relief   and
\n   rehabilitation of PAFs in the case of Sardar Sarovar Project
\n   was considered by the Narmada Water Disputes Tribunal and
\n   the decision and final order of the Tribunal given in 1979
\n   contains detailed directions in regard to acquisition of land and
\n   properties, provision for land, house plots and civic amenities
\n   for the resettlement and rehabilitation of the affected families.
\n   The resettlement policy has thus emerged and developed
\n   along with the Sardar Sarovar Project.”\n<\/p>\n
   This Court opined that where two views are permissible, the
\ncourt ordinarily would not sit in appeal over a policy decision
\nadopted by the government. Regarding displacement of people on
\nproposed project, it was held:\n<\/p>\n
   “…It is not fair that tribals and the people in undeveloped
\n   villages should continue in the same condition without ever
\n   enjoying the fruits of science and technology for better health
\n   and have a higher quality of lifestyle. Should they not be
\n   encouraged to seek greener pastures elsewhere, if they can
\n   have access to it, either through their own efforts due to
\n   information exchange or due to outside compulsions. It is with
\n   this object in view that the R&R plans which are developed are
\n   meant to ensure that those who move must be better off in the
\n   new locations at government cost. In the present case, the
\n   R&R packages of the States, specially of Gujarat, are such
\n   that the living conditions of the oustees will be much better
\n   than what they had in their tribal hamlets.”\n<\/p>\n
   As regards the question of necessity to balance the loss of
\nforest because of activities carried on therein and construction of a
\ndam, it was held:\n<\/p>\n
        “242. The loss of forest because of any activity is
\n   undoubtedly harmful. Without going into the question as to
\n   whether the loss of forest due to river valley project because of
\n   submergence is negligible, compared to deforestation due to
\n   other reasons like cutting of trees for fuel, it is true that large
\n   dams cause submergence leading to loss of forest areas. But it
\n   cannot be ignored and it is important to note that these large
\n   dams also cause conversion of wasteland into agricultural land
\n   and make the area greener. Large dams can also become
\n   instruments in improving the environment, as has been the
\n   case in western Rajasthan, which transformed into a green
\n   area because of Indira Gandhi Canal which draws water from
\n   Bhakra Nangal Dam. This project not only allows the farmers
\n   to grow crops in deserts but also checks the spread of Thar
\n   Desert in the adjoining areas of Punjab and Haryana.”\n<\/p>\n
   It is of some significance to note that this Court in Balco
\nEmployees’ Union (Regd.) v. Union of India and Others<\/a> [(2002) 2
\nSCC 333] in regard to the decision of this Court in Samatha v.
\nState of A.P. [(1997) 8 SCC 191], by drawing a necessary
\ndistinction between an area which is covered by Fifth Schedule of
\nthe Constitution and an area which is not, opined as under:\n<\/p>\n
        “71. While we have strong reservations with regard to the
\n   correctness of the majority decision in Samatha case, which
\n   has not only interpreted the provisions of the aforesaid Section
\n   3(1) of the A.P. Scheduled Areas Land Transfer Regulation,
\n   1959 but has also interpreted the provisions of the Fifth
\n   Schedule of the Constitution, the said decision is not
\n   applicable in the present case because the law applicable in
\n   Madhya Pradesh is not similar or identical to the aforesaid
\n   Regulation    of   Andhra   Pradesh.   Article   145(3)    of   the
\n   Constitution provides that any substantial question of law as to
\n   the interpretation of the provisions of the Constitution can only
\n   be decided by a Bench of five Judges. In Samatha case, it is a
\n   Bench of three Hon’ble Judges who by majority of 2:1,
\n   interpreted the Fifth Schedule of the Constitution. However,
\n   what is important to note here is, as already observed
\n   hereinabove, that the provisions of the Madhya Pradesh Land
\n   Revenue Code, 1959 and Section 165, in particular, are not in
\n   pari materia with the aforesaid Section 3 of the Andhra
\n   Pradesh Regulation.”\n<\/p>\n
   Furthermore, the cut-off date in terms of the 1975 Act was
\n1.01.1960. Any transaction which had taken place between 1960
\nand 1975 and thereafter had been declared invalid. Admittedly,
\neven after the provisions thereof having been given full effect, the
\nmembers of the Scheduled Tribe had not been put in possession
\nof their own land for decades.\n<\/p>\n
    Furthermore, we have noticed hereinbefore that the members
\nof the Scheduled Tribe are educated and we can safely presume
\nthat most of them are serving various institutions in the State of
\nKerala and\/ or in other parts of India.\n<\/p>\n
    Indisputably, the question of restoration of land should be
\nconsidered having regard to their exploitation and rendering them
\nhomeless from the touchstone of Article 46 of the Constitution of
\nIndia. For the aforementioned purpose, however, it may be of
\nsome interest to consider that the insistence of autonomy and the
\nview of a section of people that tribals should be allowed to remain
\nwithin their own habitat and not be allowed to mix with the outside
\nworld would depend upon the type of Scheduled Tribe category in
\nquestion. Some of them are still living in jungle and are dependant
\non the products thereof. Some of them, on the other hand, have
\nbecome a part of the mainstream. The difference between
\nScheduled Tribes of North-East and in some cases the Islands of
\nAndaman and Nicobar, on the one hand, and of those who are on
\nthe highlands and plains of the Southern regions must be borne in
\nmind.\n<\/p>\n
    We are satisfied that the legislature of Kerala kept in view the
\nnecessity of protecting the interest of the small land holders who
\nwere in possession and enjoyment of property which had belonged
\nto tribal community and at the same time ensured that the tribals
\nare not thrown out of their land and rendered homeless. Having
\nregard to the studies conducted by the State Government and as a
\nbalance of interest between tribals and non-tribals which has been
\nsought to be achieved, the provisions of the 1999 Act are intra
\nvires.\n<\/p>\n
    In the counter-affidavit filed by the State, it is stated:\n<\/p>\n
    “…It is no doubt true that Act 31 of 1975 was integrated in the
\n    light of the non-tribals depriving tribals of their land and the
\n    tribals being exploited. However, over the years considering
\n    the population of land ratio even the non-tribals occupying land
\n    which was once in possession of the tribals stood to have their
\n    livelihood seriously jeopardise by total implementation of Act
\n    31 of 1975. Ultimately, the Government had to consider all the
\n    aspects of the matter and the Government found that the
\n    optimum solution would be to bring a new legislation. It is in
\n    view of this that Act 12 of 1999 has been passed by the State
\n    legislature…”\n<\/p>\n
NON-AVAILABILITY OF THE LAND<\/p>\n
    19. Mr. Iyer, learned counsel would contend that the State of
\nKerala is striving hard for making the lands available to the tribal
\npeople. The learned counsel contended that the State has
\napproached the Forest Bench of this Court for this purpose. We
\nare, however, not concerned therewith. Keeping in view the
\npromises made by the 1999 Act, it is obligatory on the part of the
\nState to provide the land meant for the members of the Scheduled
\nTribe. If they do not have sufficient land, they may have to take
\nrecourse to the acquisition proceedings but we are clear in our
\nmind that the State in all situations will fulfill its legislative promise
\nfailing which the persons aggrieved would be entitled to take
\nrecourse to such remedies which are available to them in law.
\n    We must also make it clear that while allotting land to the
\nmembers of the Scheduled Tribe, the State cannot and must not
\nallot them hilly or other types of lands which are not at all fit for
\nagricultural purpose. The lands, which are to be allotted, must be
\nsimilar in nature to the land possessed by the members of
\nScheduled Tribe. If in the past, such allotments have been made,
\nas has been contended before us by the learned counsel for the
\nrespondent, the State must allot them other lands which are fit for
\nagricultural purposes. Such a process should be undertaken and
\ncompleted as expeditiously as possible and preferably within a
\nperiod of six months from date.\n<\/p>\n
EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY
\nREVIVING OF THE OLD ACT<\/p>\n
    20. Whether striking down of an enactment as unconstitutional
\nwould result in automatic revival of an earlier Act which has been
\nrepealed? The High Court wherefor, as noticed hereinbefore, has
\nstruck down Section 22 of 1999 Act providing for repeal of 1975
\nAct. On the aforesaid premise it was held that the effect must be
\ngiven to the right accrued under the 1975 Act.\n<\/p>\n
    Sections 6(1) and 7 of the General Clauses Act, 1897, which
\nare relevant for this purpose, read as under :-\n<\/p>\n
    “6. Effect of repeal.\n<\/p><\/blockquote>\n
    Where this Act, or any Central Act or Regulation made after
\n    the commencement of this Act, repeals any enactment hitherto
\n    made or hereafter to be made, then, unless a different
\n    intention appears, the repeal shall not–\n<\/p><\/blockquote>\n
         (a) revive anything not in force or existing at the time at
\n         which the repeal takes effect; or<\/p>\n
          (b) affect the previous operation of any enactment so
\n         repealed or anything duly done or suffered thereunder; or<\/p>\n
         (c) affect any right, privilege, obligation or liability
\n         acquired, accrued or incurred under any enactment so
\n         repealed; or<\/p>\n
         (d) affect any penalty, forfeiture or punishment incurred
\n         in respect of any offence committed against any
\n         enactment so repealed; or<\/p>\n
         (e) affect any investigation, legal proceeding or remedy
\n         in respect of any such right, privilege, obligation, liability,
\n         penalty, forfeiture or punishment as aforesaid;\n<\/p>\n
   and any such investigation, legal proceeding or remedy may
\n   be instituted, continued or enforced, and any such penalty,
\n   forfeiture or punishment may be imposed as if the repealing
\n   Act or Regulation had not been passed.\n<\/p>\n
   7. Revival of repealed enactments –\n<\/p>\n
   (1) In any (Central Act) or Regulations made after the
\n   commencement of this Act, it shall be necessary, for the
\n   purpose of reviving, either wholly or partially, any enactment
\n   wholly or partially repealed, expressly to state that purpose.\n<\/p>\n
   This section applies also to all (Central Acts) made after the
\n   third day of January, 1968 and to all Regulations made on or
\n   after the fourteenth day of January, 1887.”\n<\/p>\n
   In our opinion, there exists a distinction between a statutory
\nrule and a Legislative Act. The Legislature did not want a vacuum
\nto be created. The 1999 Act was enacted repealing the 1975 Act
\nonly for certain purposes. Section 22(2) of the 1999 Act upheld
\ncertain actions taken under the 1975 Act as if they had been taken
\nin terms thereof. The procedure for determining the rights and
\nobligations of the parties by the Revenue Officers, under both the
\nActs, are more or less the same.\n<\/p>\n
   We may notice Sections 19 and 22 of 1999 Act, which are
\nrelevant. They read :-\n<\/p>\n
   “19. Saving of other laws. – The provisions of this Act shall be
\n   in addition to and not in derogation of any other law for the
\n   time being in force regulating any of the matters dealt with in
\n   this Act, except to the extent provided in this Act.”\n<\/p>\n
    “22. Repeal and saving.-\n<\/p>\n
    (1) The Kerala Scheduled Tribes (Restriction on Transfer of
\n         Lands and Restoration of Alienated Lands) Act, 1975 (31
\n         of 1975) is hereby repealed.\n<\/p>\n
    (2) Notwithstanding the repeal of the said Act, all orders
\n         issued by the competent authority or the Revenue
\n         Divisional Officer, so far as they are not inconsistent with
\n         the provisions of this Act shall be deemed to have been
\n         made under the corresponding provisions of this Act and
\n         shall continue to be in force accordingly unless and until
\n         superseded by anything done or any action taken under
\n         this Act. Every proceedings pending before a Court on a
\n         complaint under Section 14 of the said Act shall be
\n         deemed as a proceeding under the corresponding
\n         provisions      of   this   Act   and   shall   be   continued
\n         accordingly.”\n<\/p>\n
    It is, therefore, evident that only those laws which are in
\nderogation of the provisions of the 1999 Act would stand repealed.\n<\/p>\n
    We may in this connection notice certain decisions relied upon
\nby Mr. Krishnan.\n<\/p>\n
    A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC
\n928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an
\nold rule by a new rule. It, therefore, ceased to exist and did not
\nautomatically get revived when new rule was held to be invalid.\n<\/p>\n
    We are, however, dealing with a Legislative Act, validity
\nwhereof was determined in the light of constitutional provisions.\n<\/p>\n
    In B.N. Tiwari v. Union of India and others<\/a>, [ [1965] 2 SCR
\n421 ], this Court was again dealing with a statutory rule. It was held
\nthat the old rule did not revive opining :-\n<\/p>\n
    “When therefore this Court struck down the carry forward rule
\n    as modified in 1955 that did not mean that the carry forward
\n    rule of 1952 which had already ceased to exist, because the
\n    Government of India itself cancelled it and had substituted a
\n    modified rule in 1955 in its place, could revive.”<\/p><\/blockquote>\n
    However, the legal position was made clear by a Three Judge
\nbench of this Court in West U.P. Sugar Mills v. State of U.P.,
\n[ (2002) 2 SCC 645 ] whereupon also the learned counsel had
\nplaced reliance, stating:-\n<\/p>\n
    “18. A perusal of Section 20 shows that several provisions of
\n    the Uttar Pradesh General Clauses Act have been made
\n    applicable in relation to statutory instruments including the
\n    statutory Rules issued under any Uttar Pradesh Act. However,
\n    Section 6-C does not find place in sub-section (2) of Section
\n     20 of the U.P. General Clauses Act. In the absence of
\n     application of Section 6-C to the statutory instrument, including
\n     the statutory rule, which is the case before us, the contention
\n     of the respondents deserves to be rejected. Since Section 6-C
\n     of the U.P. General Clauses Act has not been applied to the
\n     statutory rule framed by the Government of Uttar Pradesh, the
\n     substituted rule after it became inoperative, the old Rule 49
\n     would not revive.”<\/p><\/blockquote>\n
     The aforementioned observations were, thus, made having
\nregard to the fact that Section 6-C of the U.P. General Clauses Act
\nhad not been applied to the statutory Rules, which reads as under
\n:-\n<\/p>\n
     “6-C. Repeal or expiration of law-making textual amendments
\n     in other laws.–(1) Except as provided by sub-section (2),
\n     where any Uttar Pradesh Act amends the text of any Uttar
\n     Pradesh Act or Regulation by the express omission, insertion
\n     or substitution of any matter, the amending enactment is
\n     subsequently repealed, the repeal shall not affect the
\n     continuance of any such amendment made by the enactment
\n     so repealed and in operation at the time of such repeal.\n<\/p><\/blockquote>\n
         (2) Where any such amendment of text is made by any
\n     temporary Uttar Pradesh Act or by an Ordinance or by any law
\n     made in exercise of the power of the State Legislature by the
\n     President or other authority referred to in sub-clause (a) of
\n     clause (1) of Article 357 of the Constitution, and such Act,
\n     Ordinance or other law ceases to operate without being re-
\n     enacted (with or without modifications) the amendment of text
\n     made thereby shall also cease to operate.”\n<\/p><\/blockquote>\n
   However, the Bench opined:-\n<\/p>\n
   “15. It would have been a different case where a subsequent
\n   law which modified the earlier law was held to be void. In such
\n   a case, the earlier law shall be deemed to have never been
\n   modified or repealed and, therefore, continued to be in force.
\n   Where it is found that the legislature lacked competence to
\n   enact a law, still amends the existing law and subsequently it is
\n   found that the legislature or the authority was denuded of the
\n   power to amend the existing law, in such a case the old law
\n   would revive and continue. But it is not the case here.”\n<\/p>\n
   Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC
\n376] is a case where the statute was modified and a different view
\nwas taken.\n<\/p>\n
   But the principle laid down therein has been held to be
\ninapplicable in Indian Express Newspapers v. Union of India,<\/a>
\n[ (1985) 1 SCC 641 ]<\/p>\n
        “106. The rule in Mohd. Shaukat Hussain Khan v. State of
\n   A.P. is inapplicable to these cases. In that case the
\n   subsequent law which modified the earlier one and which was
\n   held to be void was one which according to the Court could not
\n   have been passed at all by the State Legislature. In such a
\n   case the earlier law could be deemed to have never been
\n   modified or repealed and would, therefore, continue to be in
\n   force. It was strictly not a case of revival of an earlier law which
\n   had been repealed or modified on the striking down of a later
\n   law which purported to modify or repeal the earlier one. It was
\n   a case where the earlier law had not been either modified or
\n   repealed effectively.”\n<\/p>\n
    Repeal of a statute, it is well known, is not a matter of mere
\nform but one of substance. It, however, depends upon the intention
\nof the legislature. If by reason of a subsequent statute, the
\nlegislature intended to abrogate or wipe off the former enactment,
\nwholly or in part, then it would be a case of total or pro tanto
\nrepeal. If the intention was merely to modify the former enactment
\nby engrafting an exception or granting an exemption, or by adding
\nconditions, or by restricting, intercepting or suspending its
\noperation, such modification would not amount to a repeal.\n<\/p>\n
    In Southern Petrochemical Industries (supra), the subsequent
\nAct did not contain the words “unless a different intention appears”.
\nIt was held that the later Act was not different from the earlier Act.\n<\/p>\n
    This Court is required to assume that the Legislature did so
\ndeliberately.\n<\/p>\n
    In this case, however, the repealing clause is clear and
\nunambiguous. We, therefore, cannot accept the submission of Mr.
\nDayan Krishnan.\n<\/p>\n
AGRICULTURAL AND NON-AGRICULTURAL LAND<\/p>\n
    21. Classification between agricultural and non-agricultural
\nland is a valid one. It is, however, accepted that all forest areas
\ncomprise of the agricultural land. The State has admittedly no
\nlegislative competence to enact a legislation in exercise of its
\npower of Entry No. 49, List II of the Seventh Schedule of the
\nConstitution of India in relation to non-agricultural land. Such a
\npower has been noticed hereinbefore. It exists only in terms of
\nEntry 6, List III of the Seventh Schedule of the Constitution of
\nIndia. While enacting the 1999 Act, the State could not have
\ndeprived the persons who hold non-agricultural land, having
\nenacted the 1975 Act and, thus, could not have repealed a portion
\nthereof by raising the following contention:\n<\/p>\n
    “…If in a given situation a tribal possess non-agricultural land
\n    that only indicates that though the person is a tribal by birth he
\n    has come a long way from the way of Scheduled Tribe and has
\n    acquired the trappings of non tribals and thereafter has come
\n    to own immovable property other than the agricultural land.
\n    The exploitation of the tribals has studied would indicate (sic)
\n    has always taken place by deprivation of the agricultural land
\n    of the tribals…”<\/p><\/blockquote>\n
    Once they have made an enactment, the legislative intent is
\nclear and unambiguous, viz., such exploitation was possible also in
\nso far as non-agricultural lands are concerned. Such a right
\nconferred on the owners of the non-agricultural land, therefore,
\ncould not have taken away without payment of compensation. We,
\ntherefore, are of the opinion that to that extent the 1975 Act would
\ncontinue to be applied. The State has no legislative competence to
\nrepeal that portion of the 1975 Act.\n<\/p>\n
    For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001
\nand 899 of 2001 are allowed in part to the extent mentioned
\nabove.\n<\/p>\n
In view of our judgment in Civil Appeal Nos. 104-105 of 2001 and 899
\nof 2001, no orders are called for in Civil Appeal No.7079 of 2001. No
\ncosts<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Kerala & Anr vs Peoples Union For Civil Liberties … on 21 July, 2009 Author: S Sinha Bench: S.B. Sinha, Mukundakam Sharma STATE OF KERALA AND ANOTHER v. PEOPLES UNION FOR CIVIL LIBERTIES, KERALA STATE UNIT AND OTHERS (Civil Appeal Nos. 104-105 of 2001) JULY 21, 2009 [S.B. SINHA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-77928","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Kerala & Anr vs Peoples Union For Civil Liberties ... on 21 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-anr-vs-peoples-union-for-civil-liberties-on-21-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala & Anr vs Peoples Union For Civil Liberties ... on 21 July, 2009 - 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