ISSUE
1.Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis-à-vis a subsequent legislation altering or modifying the right of the beneficiaries under the former Act, inter alia, is the question involved in these appeals. They arise out of a judgment and order dated 24th August, 2000 passed by a Division Bench of the High Court of Kerala at Ernakulam. BACKGROUND FACTS
2.The State of Kerala enacted the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Act No.31 of 1975) (for short ‘the 1975 Act’) with the object of providing restriction on transfer of land by Members of Scheduled Tribes in the State of Kerala and for restoration of possession of lands alienated by such members and for matters connected therewith. The said Act received the assent of the President of India. It was included in the Ninth Schedule of the Constitution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. RULES UNDER THE SAID ACT
3.Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986. PROCEEDINGS
4.Members of the Scheduled Tribes filed applications for
restoration of their lands in the year 1988 in terms of the provisions
of the 1975 Act and the 1986 Rules.
As the said Act was not implemented in letter and spirit, one
Dr. Nallathampy Thera filed a writ petition which was marked as
O.P. No.8879 of 1988 praying inter alia for issuance of a Writ of
Mandamus compelling the State to implement the provisions of the
Act and directing the concerned authorities to deal with and
dispose of the applications filed therein. Before the High Court the
learned Additional Advocate General appearing for the State
submitted that :
“utmost steps would be taken for the disposal of the
applications and that the Act would be enforced in all its
rigour.” Relying on or on the basis of the said statement, O.P. No.
8879 of 1988 was disposed of by the High Court on 15th October,
1993, inter alia, calling upon the State to give directions to the
Authorities under the 1975 Act to dispose off the applications
pending before them within 6 months from the said date.
The State, however, did not comply with the said directions
within the said time frame. Extensions of time were sought for
complying with the said directions. By the said process, a period of
two years lapsed.
Another application for extension of time was filed for
implementation of the Act and the High Court granted six months’
time but issued certain directions inter alia for the purpose of
monitoring the progress of the implementation of the Act.
The said conditions are as under:-
“(i) The State shall ensure that all the applications are
disposed of within the extended time.
(ii) The State shall immediately communicate copies of this
order to the Revenue Divisional Officers of all the
Districts for compliance.
(iii) The Authorities under the Act, i.e., the Revenue
Divisional Officers of the concerned Districts shall file
affidavits before this court once in a month showing the
progress achieved in the disposal of applications during
that month. The first of these affidavit showing the
progress-made until 31.12.1995 shall be filed before
15.1.1996. The next of the affidavits showing progress till
31.1.1996 shall be filed before 15.2.1996 and so on.
(iv) The State shall provide the necessary back up and
support to the Revenue Divisional Officers to complete
the work within the extended time now granted.
(v) The State or any of the Revenue Divisional Officers shall
be at liberty to approach this court in the event of any
difficulty being felt in disposing off the applications.
(vi) It is seen from the affidavit filed by the Government that
the pendency of applications in the Districts of Palakkad,
Wayanad, Idukki and Kottayam is unusually large. The
Revenue Divisional Officers of these Districts are
directed in particular to dispose of all the applications
within the extended time.”
Applications for restoration of lands which were pending were
disposed of pursuant to the said directions. Appeals were filed in a
few cases but in most of them the orders directing restoration of
lands became final.
Strangely however, no actual restoration of land was effected.
Another application was filed by the writ petitioner on 1st March,
1996 complaining about non-implementation of the said order.
The learned Additional Advocate General once again gave an
assurance that the order of the authorities under the 1975 Act
would be implemented. On or about 28th March, 1996 the High
Court directed :-
“The learned Additional Advocate General assures the court
that all out efforts will be made to dispose of all the pending
applications within the time stipulated by this court and further
that wherever there has been final orders passed, actual restoration will also be formal orders are necessary today. Post
on 31.5.1996.”
(emphasis supplied)”
Further affidavits were filed by the Revenue Divisional Officers
reporting progress in the disposal of the applications made under
the Act.
On or about 13th August, 1996 the High Court issued the
following directions :-
“(1) The Revenue Divisional Officers are directed to cause
delivery of the properties covered by orders for restoration
against which, no appeals are pending and in which no
compensation is payable, forthwith and in any event within six
weeks from today.
(2) In view of the submission that the officers are meeting with
resistance in restoring possession the State and the District
Superintendents of Police of all Districts are directed to afford
the needed protection to the Revenue Divisional Officers to
carry out their duty of restoring possession to the Tribals.
(3) The State and the Collectors of the various Districts are
directed to make available to the Revenue Divisional Officers
the necessary man power and support to carry out the
implementation of the orders for restoration passed under the
Act.
(4) The Revenue Divisional Officers will file statements before
this court by 30.9.1996 reporting compliance with direction
No.1” An intra court appeal was preferred thereagainst. The matter
was referred to a Full Bench. An order of stay was passed relying
on or on the basis of a statement made before the Court that
amendments to the 1975 Act were proposed to be made.
However, as the President of India declined to give his assent
to the Bill passed by the Legislature of the State of Kerala for
amendment of the said Act, the order of stay was vacated.
The Full Bench on 21st May, 1998 passed the following order:-
“ Heard learned Additional Advocate General, Mr. T.
Mohammed Youseff and Mr. A.X. Varghese, Advocate. The
above application is filed to extend the order of stay granted in
the Writ Appeal for a further period of six months from
21.5.1998. This Court granted the interim order of stay since at
the time the Bill passed by the Legislative Assembly of the
State of Kerala was pending consideration before the Hon’ble
President of India. It is now stated in the affidavit that the
Hon’ble President of India has declined assent to the Bill
passed by the State Legislative Assembly. In the light of the
Hon’ble President of India having declined assent to the Kerala
Scheduled Tribe (Restriction on Transfer of Lands and
Restoration of Alienated Lands)Amendment Act, 1996, there is
no justification for this court extending the order to stay granted
earlier. The interim stay granted earlier is vacated.
2. The learned Single Judge, while disposing of C.M.P. No.
28950 of 1995 in O.P. 8879 of 1988, was pleased to grant time
till 30.9.1996 for reporting compliance with direction No.1 in the
order. The time was extended from time to time for compliance
with the directions till the order of stay was granted. Now that the order of stay having been vacated, we grant six months
time to the State for carrying out the direction contained in the
order of the learned single judge dated 13th August 1996,
passed in C.M.P. No. 28950 of 1995, without prejudice to the
right of the Government in considering the various aspects of
the matter to bring forward suitable legislation with suitable
changes, if they so desire.”
(emphasis added)
On or about 23rd November, 1998 an application for initiating
proceedings under the Contempt of Courts Act, 1971 was filed
against the State and its officers on the premise that orders of the
High Court had not been complied with. A notice was issued
therein.
A petition was filed by the State for extension of the period by
six months from 21st November, 1998. However, a statement was
made before the Full Bench that a new Bill would be introduced
before the Legislative Assembly in terms whereof a permanent
solution to the problem of alienation of tribal lands which had taken
place during the period from 1.1.1960 and 1.1.1986 shall be dealt
with. The Full Bench, by its order dated 6th January, 1999,
directed :-
“This petition has been filed by the State to extend the time
(sic) granted already by a period of six months from 21.11.98.
We have perused the affidavit and heard the arguments of
both sides. We have also heard Dr. P. Nalla Thampy Thera.
He opposed the petition for extension of time tooth and nail.
This Court has already granted six month’s time. The State
has explained the reasons for its inability to introduce the new
bill within the time granted earlier. We are satisfied with the
reasons given in the affidavit. It is now stated in the affidavit
that the Legislative Assembly is expected to commence its
next session on 22.1.99 and that the new bill formulated by the
Government will be introduced in this session. According to the
Government, the new bill is expected to find a permanent
solution to the problem of alienation of tribal lands which had
taken for the period from 1.1.1960 to 1.1.1986. Therefore, they
pray that in the interest of justice the State may be granted
extension of time to introduce the Bill in this session.
2. We have considered the rival submissions and are of the
opinion that in the interest of justice, the time already granted
has to be extended by three months from today. As already
noticed, the Assembly session is to commence on 22.1.1999
and the State is proposing to introduce the Bill in this session.
3. In view of the above, the time already granted by this Court
is hereby extended by three months from today. The State
shall introduce the Bill in this session of the Assembly and
complete all the other formalities within the time now granted.
We make it clear that there will be no further extension of time.
The State is directed to pay cost of this petition to Dr. Nalla
Thampy Thera which is fixed at Rs.5000/-, by way of demand
draft drawn in his name, within three weeks from today.”
(emphasis supplied)
5.Indisputably the Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 (for short ‘the 1999 Act’), which inter alia deals with transfer and alienation of agricultural lands. Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged by filing two writ petitions; one marked as O.P. No.25332 of 1999 filed by Niyamvedi, respondent No.1 in Civil Appeal No.105 of 2001 and another O.P. No.26499 of 1999 by Peoples Union for Civil Liberties, Kerala State Unit, respondent No.1 in Civil Appeal No.104 of 2001. In the aforesaid writ petitions counter-affidavits were filed on behalf of the Union of India supporting the stand of the tribes. Malayora Karshaka Federation (appellant before us in C.A. No.899 of 2001) was impleaded as a party therein. By reason of the impugned judgment and order dated 24th August, 2000, the High Court declared the aforesaid provisions as ultra vires. FINDINGS OF THE HIGH COURT
6.The High Court, while acknowledging, the legislative intent of the State of Kerala, opined that it was colourable in nature as by reason of the provisions of the 1975 Act and the orders passed in favour of the members of the Scheduled Tribes, a vested right accrued to the members of Scheduled Tribes was destroyed by reason of the provisions of 1999 Act. Proviso to Sections 5(1), Section 5(2), Section 6 and Section 22 of the 1999 Act were held to be arbitrary. The said provisions were also held to be discriminatory and thus violative of Article 14 of the Constitution of India. The issue in regard to violation of Article 19(1)(e) of the Constitution of India was determined on the premise that no sufficient material had been placed before the Court. Inter alia relying on or on the basis of the decision of this Court in Madan Mohan Pathak v. Union of India, [ (1978) 2 SCC 50 ], the High Court held that in effect and substance, by reason of the provisions of the 1999 Act, a judicial decision was sought to be nullified. The contention of the respondents that Presidential assent having not been obtained, the 1999 Act was violative of Article 254 of the Constitution of India was, however, rejected. With regard to compliance of the requirements of Article 338 of the Constitution of India, consultation with Scheduled Castes/Scheduled Tribes Commission was held to be not imperative. Section 22 of the 1999 Act was held to be ultra vires Article 14 of the Constitution of India, having regard to the accrued rights of the members of the Scheduled Tribes in view of the issuance of the writ of mandamus issued, the High Court directed :-“In the light of our discussion as above, we declare the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, Act 12 of 1999 as unconstitutional and void. We strike down the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12 of 1999. We direct the State and the Authorities under Act 31 of 1975 to implement the orders for restoration passed under the Kerala Scheduled Tribes (Restriction of Transfer of land and Restoration of Alienated Lands) Act, 1975, Act 31 of 1975 and restrain the State and the Authorities under Act 12 of 1999 from enforcing the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12 of 1999.” THE APPEALS BEFORE US
7.Civil Appeal Nos. 104-105 of 2003 have been filed by the State of Kerala against the common judgment and order dated 24th August, 2000 passed by a Division Bench of the Kerala High Court in O.P. Nos. 25332 and 26499 of 1999 filed by Niyamavedi and Peoples Union for Civil Liberties, Kerala State Unit striking down the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the 1999 Act. Civil Appeal No.899 of 2001 has been filed by Malayora Karshaka Federation Kerala Meenangadi (respondent No.7 before the High Court in O.P. No.25332 of 1999) against the aforesaid order dated 24th August, 2000. Civil Appeal No.7079 of 2001 has been filed by M. Mohan Kumar, Chief Secretary, Government of Kerala against the order dated 4th December, 2000 passed by a Division Bench of the High Court in C.C.C. No. 542 of 1986 whereby the Court directed the appellant to appear before it for framing charges against him in not complying with the final direction issued by the Court on 18th December, 1999. CONTENTIONS
8.Mr. T.L. Viswanath Iyer, learned senior counsel and Mr.Dayan Kishnan, Advocate, appearing on behalf of the appellants would submit :-(i) The High Court committed a manifest error in holding that the 1999 Act suffers from the vice of colourable exercise of power or is otherwise mala fide despite holding that the Legislature of the State of Kerala had the requisite legislative competence therefor. (ii) The members of the Scheduled Tribes had no fundamental or common law right to obtain restoration of possession of their lands which had already been alienated. (iii) Such a right having been conferred upon them by reason of the provisions of 1975 Act, the same could be taken away and/or modified or altered by reason of a subsequent Act which comes within Entry 18 of the List II of Seventh Schedule of the Constitution of India. (iv) Only because non-agricultural lands had been kept out of purview of 1999 Act, the same by itself did not attract the wrath of Article 14 of the Constitution of India. . (v) The provisions of the 1999 Act being more beneficial compared to the provisions of 1975 Act, only because the tribes would be allotted lands outside their original habitants, the same would not attract Article 21 of the Constitution of India, particularly when they would be getting 2 hectares of land as also grant for payment of compensation to the land holder in stead and place of repayable amount of loan as provided for in the 1975 Act. (vi) Keeping in view the nature of mandamus issued by the High Court in the earlier round of litigation, it would not mean that the State was not precluded from amending or repealing the 1975 Act. (vii) The decision of this Court in Madan Mohan Pathak (supra) and Hoechst Pharmaceuticals Ltd. v. State of Bihar, [ (1983) 4 SCC 45 ] having been explained in Indian Aluminium Co. v. State of Kerala, [(1996) 7 SCC 637] as also a Constitution Bench of this Court in State of Tamilnadu v. Arooran Sugars Ltd., [ (1997) 1 SCC 326 ], the impugned judgment cannot be sustained. (viii) The tribals in whose favour the orders of restoration had been passed having not filed any writ petition, it must be presumed that they were not aggrieved by the provisions of the 1999 Act, particularly in view of the fact that their association had been consulted by the Government Officials and in that view of the matter the writ petitioner – association had no locus standi to maintain the public interest litigation having regard to Baba Charan Dass Udhasi v. Mahant Basant Das Babaji Chela Baba Laxmandas Udasi Sadhu [(2000) 6 SCC 1]. (x) In any event, a declaration by a Superior Court that a subsequent statute is ultra vires would not wipe off the earlier statute automatically. (xi) The purchasers of land having acquired the properties in 1950s must be held to have acquired an indefeasible right over the same and thus the 1975 Act even to that extent was not applicable. Mr. Rajinder Sachar, learned senior counsel appearing on behalf of respondents in C.A. Nos. 104-105 of 2001, on the other hand, would contend:-(i) The 1999 Act being in the teeth of the mandamus issued by the High Court has rightly been held to be unconstitutional in view of the fact that nothing has been brought on record to show that the 1999 Act was enacted by the legislature despite knowledge that the directions issued by the High Court had attained finality. (ii) The 1975 Act having conferred a right of restoration on the Members of the Scheduled Tribes, both in respect of agricultural and non-agricultural lands, the provisions of 1999 Act and in particular Section 6 thereof having confined its operation only to agricultural land and that too with retrospective effect from 24th January, 1986, must be held to be ultra vires Article 14 of the Constitution of India. (iii) The Members of the Scheduled Tribes being mostly residents of forests and the lands restored in their favour being forest lands, no legal infirmity was committed by the High Court in holding that the tribals; the community being weakest of weak, should not be deprived therefrom having regard to their constitutional right of life as adumbrated in Article 21 of the Constitution of India. (iv) As from the statistics furnished by the State itself it would appear that only about 10 percent of the applicants had more than 2 hectares of land, the right of restoration of the marginal farmers could not have been taken away. (v) Once a statutory protection is granted to the beneficiaries, the same could not have been withdrawn. Mr. Verghese, learned counsel appearing on behalf of respondent No.1 in Civil Appeal No.899 of 2001 supplementing the arguments of Mr. Sachar urged: (i) That the Members of Scheduled Tribes having come under attack by economically more advanced and politically more powerful ethnic groups who infiltrated into tribal regions in search of land and new economic possibilities, keeping in view Article 46 of the Constitution of India, they were entitled to restoration of land in terms of the judgment of the High Court passed in O.P. No.8879 of 1988. (ii) Provisions of 1975 Act having been found to be constitutionally valid, the accrued and vested rights of the tribals could not have been taken away by reason of 1999 Act or otherwise. (iii) The Writ-Petitioner – association having been fighting for the cause of the tribals for a long time, it cannot be said that they had no locus standi to file the public interest litigation. (iv) Even the Union of India having supported the case of the tribals, there is no reason as to why this Court should interfere with the impugned judgment. (v) The 1999 Act being not a validating statute, the impugned judgment is unassailable, particularly having regard to the objective of 1975 Act vis-à-vis 1999 Act. (vi) It is incorrect to contend that the State before enactment of 1999 Act consulted the true representatives of the tribals. (vii) In any view of the matter as the members of the tribal community became entitled to restoration of their land by reason of the provisions of the 1975 Act, there was no reason as to why the original land would not be restored to them. The 1975 ACT
9.The 1975 Act was enacted by the State in terms of Entry 6
of List III of Seventh Schedule of the Constitution of India.
Section 2 contains interpretation clauses defining the terms
specified therein.
Section 2(b) defines ‘immovable property’ to include standing
crops and trees but does not include growing grass.
‘Scheduled tribe’ has been defined in Section 2(e) to mean any
of the Scheduled Tribes relating to the State as specified in the
Constitution (Scheduled Tribes) Order, 1950.
Section 2(g) defines ‘transfer’ as under :-
“ ‘transfer’ , in relation to immovable property, means an act by
which immovable property, is conveyed to any documentary or
oral transaction, whether by way of mortgage with or without
possession, lease, sale, gift or exchange, or in any other
manner, not being a testamentary disposition; and includes a
charge, ‘vilapanayam’, ‘unduruthi’, contract relating to
immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or
otherwise, voluntary surrender and abandonment.
Explanation. – For the purposes of this clause. –
(i) “vilapanyam” means hypothecation of crops on payment
of consideration or otherwise;
(ii) “unduruthi” means an assignment of the right to collect
the usufructs available or anticipated to be available to
any land during specified term for a specified price.”
Section 4 imposes restrictions on transfer by providing a non
obstante clause in terms whereof after the commencement of the
Act any transfer effected by a member of the Scheduled Tribe of
immovable property possessed, enjoyed or owned by him to a
person other than a member of a Scheduled Tribe, without the
previous consent in writing of the competent authority, would be
invalid.
Section 5 of the Act invalidated certain transfers made by
tribals to persons other than tribals after the first of January, 1970
and before commencement of the Act :-
“5. Certain transfers to be invalid – Notwithstanding anything to
the contrary contained in any other law for time being in force,
or in any contract, custom or usage, or in any judgment,
decree or order of any court, any transfer of immovable
property possessed, enjoyed or owned by a member of a
Scheduled Tribe to a person other than a member of a
Scheduled Tribe, effected on or after the Ist day of January,
1960, and before the commencement of this Act shall be
deemed to be invalid.”
Under Section 6 of the 1975 Act members of the Schedule
Tribes became entitled to restoration of possession of the
properties, transfers which stood invalidated by operation of
be made by the Tribals for restoration of alienated lands to the
Revenue Divisional Officer within the time prescribed therefor. The
Revenue Divisional Officer was to make enquiries and after being
satisfied with the application of the Act was to direct restoration of
possession to the applicant.
Section 6 which is material for our purpose, inter alia, reads as
under:-
“6. Reconveyance of property – (1) Where by reasons of a
transfer of immovable property which is invalid under Section 4
or Section 5, a member of a Scheduled Tribe has ceased or
ceases to be in possession or enjoyment thereof he shall be
entitled to the restoration of possession or enjoyment, as the
case may be of such property.
(2) Any person entitled to be restored to the possession or
enjoyment of any immovable property under sub-section (1) or
any other person on his behalf may make an application, either
orally or in writing to the Revenue Divisional Officer within a
period of one year from the date of commencement of this Act
or such further period as may be specified by Government by
notification in the Gazette -
(a) for restoration of possession, or enjoyment, as the
case may be, of such property, if such transfer had been
made; before the date of commencement of this Act.
(b) for restoration of possession or
enjoyment, as the case may be, of such property and for the
prosecution of the person who has procured such transfer, if
such transfer was made on or after the date of commencement
of this Act.”
Section 11 provides for liability to pay amount.
Section 12 provides for advancement of loan by the
Government for payment of the amount on such terms and
conditions as has been laid down under sub-sections (2) and (3)
thereof.
The Act also prescribed offences and provided for penalties
etc.
Section 22 contains the rule making power.
1999 ACT
The 1999 Act was published in the Kerala Gazette
Extraordinary on 20th April, 1999. It was given a retrospective
effect and retroactive operation from 24th January, 1986.
‘Land’ has been defined in 2(b) to mean any agricultural land.
Section 5 of the Act reads as under:-
“5. Certain transfer to be invalid –
(1) Notwithstanding anything to the contrary contained in any
other law for the time being in force, or in any contract, custom
or usage, or in any judgment, decree or order of any court, any
transfer of land possessed, enjoyed or owned by a member of
a Scheduled Tribe to a person other than a member of a
Scheduled Tribe, effected on or after the 1st day of January, 1960, and before the commencement of this Act shall be
deemed to be invalid:
Provided that nothing in this section shall render invalid
any transfer of land possessed, enjoyed or owned by a
member of a Scheduled Tribe to a person other than a
member of a Scheduled Tribe effected during the aforesaid
period and the extent of which does not exceed two hectares.
(2) Notwithstanding anything contained in sub-section (1) or in
any judgment, decree or order of any Court or other authority,
in cases where the land involved in such transfer is used for
agricultural purposes, the transferee thereof shall be entitled to
retain in his possession the said land upto an extent of two
hectares which shall be demarcated by the Revenue Divisional
Officer by order and in the manner as may be prescribed.”
Section 6 providing for allotment of lands reads thus:-
“6. Allotment of lands.- Notwithstanding anything contained in
section 5 or in any judgment, decree or order of any Court or
other authority, a member of a Scheduled Tribe who had
effected any transfer of land, possessed, enjoyed or owned by
him, to a person other than a member of a Scheduled Tribe,
between the 1st day of January, 1960 and the 24th day of
January, 1986 and where an application for restoration of right
under Section 6 of the Kerala Scheduled Tribes (Restriction of
Transfer of Lands and Restoration of Alienated Lands) Act,
1975 (31 of 1975) has been filed before publication of this Act
in the Gazette, but the possession or enjoyment thereof, has
not been restored to him and such transfer has been validated
by the proviso to sub-section (1) of Section 5 or the transferee thereof has been made eligible for the retention of said land
under sub-section (2) of Section 5, shall be entitled to
restoration of equal extent of land by way of allotment from the
Government:
Provided that where the extent of the land so allotted in
respect of which there is eligibility for restoration of rights, is
less than forty ares, Government shall allot the rest of the land
required to make the total extent equal to forty ares (One
acre).”
Section 8 providing for liability to pay amount reads :-
“8. Liability to pay amount.-
(1) Notwithstanding anything contained in any other law for
the time being in force, where the possession or
enjoyment of any land is restored to a member of a
Scheduled Tribe under this Act, an amount equal to the
aggregate of the actual amount of consideration received
by such member at the time of the transfer and an
amount determined by the competent authority for
improvements, if any, made after the transfer and before
such restoration shall be paid by him to the person from
whom possession or enjoyment, as the case may be,
was restored, in accordance with the rules made under
this Act:
Provided that no amount shall be payable if the transfer
was effected on or after the commencement of this Act. (2) The amount determined by the competent authority
under sub-section (1) shall be final and shall not be
called in question in any court.
(3) The amount payable under sub-section (1) shall be
recoverable in such manner as may be prescribed.
Section 10 provides for assignment of land, which reads:-
“10. Assignment of land.-
(1) Notwithstanding anything contained in Section 6 or in the
Kerala Government Land Assignment Act, 1960 (30 of
1960) and the rules issued thereunder, the Government
shall assign land to the landless families of the
Scheduled Tribes in the State, an extent not exceeding
forty ares of land in the district they reside within a period
of two years from the date of publication of this Act in the
Gazette, or such further period as may be specified by
Government by notification in the Gazette, and in the
manner as may be prescribed.
(2) Where the extent of the land in the possession and
enjoyment of any family of the Scheduled Tribe in the
State, is less than 40 Ares such family shall be entitled to
get assigned more land which is necessary to make the
total extent of the land equal to 40 Ares.”
Section 11 provides for constitution of Scheduled Tribe
Rehabilitation and Welfare Fund and utilization thereof.
Section 21 provides for power to make Rules.
Section 22 is the Repealing and Saving clause.
It reads as under:“22. Repeal and saving.-
(1) The Kerala Scheduled Tribes (Restriction on Transfer of
Lands and Restoration of Alienated Lands) Act, 1975 (31
of 1975) is hereby repealed.
(2) Notwithstanding the repeal of the said Act, all orders
issued by the competent authority or the Revenue
Divisional Officer, so far as they are not inconsistent with
the provisions of this Act shall be deemed to have been
made under the corresponding provisions of this Act and
shall continue to be in force accordingly unless and until
superseded by anything done or any action taken under
this Act. Every proceedings pending before a Court on a
complaint under Section 14 of the said Act shall be
deemed as a proceeding under the corresponding
provisions of this Act and shall be continued
accordingly.”
LEGISLATIVE BACKDROP
11.The validity of 1975 Act is not in question. It, having regard to its inclusion in the Ninth Schedule of the Constitution of India by Constitution 40th Amendment Ac, 1976 read with Article 31B which precludes an attack to the provisions of such an enactment on the ground that it violates any provisions of Part III of the Constitution of India, the validity thereof was upheld by a leaned Single Judge of the Kerala High Court in Bhavani v. State of Kerala, [1989 (1) KLT (Short Note Case No.58) at 37]. We may also notice that Jagannadha Rao, C.J. (as His Lordship then was) in Fr. Thomas Kubukkat v. Union of India, [ 1994 (2) KLT 25 ] also upheld the provisions of Section 1(3) of 1975 Act stating the said provision to be conditional legislation and not a delegated legislation. The Constitutional validity of statutes enacted for the benefit of the members of Scheduled Tribe by some other State although not identical has been upheld by this Court in Manchegowda and others v. State of Karnataka and others, [(1984) 3 SCC 301], Lingappa v. State of Maharashtra, [(1985) 1 SCC 479]; P. Rama Reddy v. State of A.P. [ (1988) 3 SCC 433 ] and Samtha v. State of Andhra Pradesh, [ (1997) 8 SCC 191 ]. These decisions have been rendered on statutes which are not absolutely identical. All of which are not in pari materia with the other. However, we may notice that in Manchegowda (supra) this Court held:-“19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly Section 4 and Section 5 thereof, the Legislature is seeking to defeat the defeasible right of the transferee in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31-A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31-A of the Constitution.” We are not concerned with the constitutional validity of 1975 Act. We would at an appropriate stage deal with the matter in regard to the effect thereof. COLOURABLE LEGISLATION
12.We have noticed hereinbefore that the Division Bench of the High Court has upheld the legislative competence of the Legislature of the State of Kerala. We, therefore, really at pains to understand as to how the doctrine of ‘Colourable Legislation’ could be invoked by the learned Judge of the High Court. The doctrine of ‘Colourable Legislation” is directly connected with the legislative competence of the State. Whereas the 1975 Act was enacted in terms of Entry 6 List III of the Seventh Schedule of the Constitution of India providing for transfer of lands; the 1999 Act was enacted in terms of Entry 18 List II thereof. It reads as under :-“18. Land, that is to say, right in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land ; land improvement and agricultural loans; colonization.” The 1999 Act, thus, having confined itself to ‘agricultural land’, indisputably the State Legislature only has the requisite legislative competence therefor. It is one thing to say that an enactment suffers from vice of colourable legislation on the premise that it does not have legislative competence but it is another thing to say that only because the Act was amended purporting to nullify an earlier Act (in the words of the High Court), the same by itself would attract the said doctrine. For invoking the doctrine of ‘Colourable Legislation’ the legislature must have transgressed the limits of its constitutional power patently, manifestly and directly. The doctrine of ‘Colourable Legislation’, in our opinion, has no application in the instant case. The said doctrine is founded on legislative competence of the State. An act of mala fide on the part of the legislature also is beyond the province of judicial review. In fact no motive can be attributed to the Legislature for enacting a particular statute. The question in regard to the constitutionality of the statute must be considered keeping in view only the provisions of the Constitution. In K.C. Gajapathi Narayan Deo v. The State of Orissa [(1954) 1 SCR 1], this Court held: “9. It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.” In R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and Another [(1977) 4 SCC 98], this Court held as under: “2. A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal — in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois1 viz. “that courts do not substitute their social and economic beliefs for the judgment of legislative bodies”. Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution.
13.Bearing in mind the quintessential aspects of the rival
contentions, let us stop and take stock. The facts of the case
are plain. The professed object of the law is clear. The motive
of the legislature is irrelevant to castigate an Act as a
colourable device. The interdict on public mischief and the
insurance of consumer interests against likely, albeit, unwitting
or “ex abundanti cautela” excesses in the working of a statute
are not merely an ancillary power but surely a necessary
obligation of a social welfare state. One potent prohibitory
process for this consummation is to penalize the trader by
casting a no-fault or absolute liability to “cough up” to the State
the total “unjust” takings snapped up and retained by him “by
way of tax” where tax is not so due from him, apart from other
punitive impositions to deter and to sober the merchants
whose arts of dealing with customers may include “many a
little makes a mickle’. If these steps in reasoning have the
necessary nexus with the power to tax under Entry 54 List II, it
passes one’s comprehension how the impugned legislation
can be denounced as exceeding legislative competence or as
a “colourable device” or as “supplementary, not
complementary’.”
[See also Dharam Dutt and others v. Union of India, [(2004) 1
SCC 712].”
The principles of determining the constitutionality of statute has
been stated in Gujarat Ambuja Cements Ltd. v. Union of India,
[(2005) 4 SCC 214 ] thus:-
“28. Having determined the parameters of the two legislative
entries the principles for determining the constitutionality of a
statute come into play. These principles may briefly be
summarised thus:
(a) The substance of the impugned Act must be looked at to
determine whether it is in pith and substance within a particular
entry whatever its ancillary effect may be [Prafulla Kumar
Mukherjee v. Bank of Commerce Ltd., AIR at p. 65, A.S.
Krishna v. State of Madras, State of Rajasthan v. G. Chawla,
Katra Educational Society v. State of U.P., D.C. Johar & Sons
(P) Ltd. v. STO and Kannan Devan Hills Produce v. State of
Kerala].
(b) Where the encroachment is ostensibly ancillary but in
truth beyond the competence of the enacting authority, the
statute will be a colourable piece of legislation and
constitutionally invalid (A.S. Krishna v. State of Madras, A.B.
Abdul Kadir v. State of Kerala, SCC at p. 232 and Federation
of Hotel & Restaurant Assn. of India v. Union of India, SCC at
p. 651). If the statute is legislatively competent the enquiry into
the motive which persuaded Parliament or the State
Legislature into passing the Act is irrelevant (Dharam Dutt v.
(c) Apart from passing the test of legislative competency,
the Act must be otherwise legally valid and would also have to
pass the test of constitutionality in the sense that it cannot be
in violation of the provisions of the Constitution nor can it
operate extraterritorially. (See Poppatlal Shah v. State of
Madras.)”
Has the legislature of the State of Kerala transgressed the
limitations of its constitutional power, as has been held by the High
Court, is the question?
We have pointed out heretobefore that the doctrine of
colourable legislation is strictly confined to the question of
legislative competence of the State Legislature to enact a statute.
Once it was opined by the High Court that having regard to Entry
51, List II of the Seventh Schedule of the Constitution of India, the
Legislature of the State of Kerala had the requisite legislative
competence to enact the 1999 Act, that should have been held to
be the end of the matter. The High Court could not have, in our
respectful opinion, entered into the said question through a side-
door so as to hold that the transgression of the limitations of
constitutional power may be disguised, covert or indirect.
The High Court, in our opinion, again with utmost respect, has
committed a fundamental error in failing to keep a distinction in
mind in regard to the power of a law making authority which is of a
qualified character and the power granted to a legislative authority
which is absolutely without any limitation and restriction, being
plenary in character.
A statute in view of the decision of this Court in Gujarat
Ambuja Cements Ltd. (supra), in the event of it being held within
the ambit of the legislative competence of the State, could be
declared ultra vires only on the premise that it is violative of the
provisions of Part III of the Constitution of India or any other provisions but not on the ground of colourable exercise of power or
mala fide on the part of the legislature. The object, purpose or
design referred to by the High Court should be taken into
consideration for the purpose of examining its constitutionality on
the touchstone of the provisions of Part III of the Constitution of
India and not otherwise. In that view of the matter, the High Court
committed a serious error in relying upon Dwarkadas Shrinivas of
Bombay v. Sholapur Spinning and Weaving Company Ltd. and
Others [AIR 1954 SC 119] and Jagannath Baksh Singh v. State of
U.P. [AIR 1962 SC 1563], which did not deal with the question of
legislative competence of the legislature of a State, as was the
question before the High Court.
No material was placed before the High Court to establish that
the 1999 Act was confiscatory in nature.
It is one thing to say that a citizen of India having been
conferred with a right on lands by reason of a statutory provision,
has been deprived therefrom without payment of any
compensation and, thus, the same would be violative of Article
300A of the Constitution of India, but, it is another thing to say that
on that ground alone the legislation should be held to be a
colourable one.
We have adverted to the statement of Objects and Reasons of
the 1999 Act. The legislature had a broad object in mind. Whether
the Act stands the scrutiny of limitations of the State’s power so as
to achieve its object and purpose is one question, but, it is another
question that while doing so it has adopted a device and a cloak to
confiscate the property of the citizen taxed as was the case in K.T.
Moopil Nair v. State of Kerala [AIR 1961 SC 552].
The High Court in its judgment has referred to
Shankaranarayana v. State of Mysore [AIR 1966 SC 1571]. But, in
our opinion, and with utmost respect, it again failed to apply the
principles laid down therein correctly. Therein itself the court had
noted that if the legislature is competent to pass a particular law,
the motives which impel it to pass the same become really
irrelevant.
The High Court furthermore committed a serious error insofar
as it made an incidental observation that the tribals who enjoy the
protection of Constitution of India and sought to be protected by
the 1975 Act could not have been denied the benefits under the
1999 Act, which in our opinion, was not a relevant question.
The provisions of the Constitution in this behalf are enabling in
nature. When a constitutionality of an enactment comes to be
questioned, the superior courts are required to pose unto
themselves the right question.
The question, in our opinion, should have been whether the
statute is valid having been enacted to achieve the constitutional
goal set out not only in Part III of the Constitution of India but also
Part IV and IVA thereof.
The rights conferred upon the class of persons including the
protected class, in terms of 1975 Act, were statutory in nature.
They cannot be categorized as plainly constitutional rights. It is
one thing to say that some rights are constitutional in nature/origin
being part of the expansive regime of Article 21, but, it would not
be correct to raise the same to the exalted status of constitutional
rights. A right which primarily flows from a statute, cannot claim its
constitutional pedigree to become a constitutional threshold, against which constitutionality of a statute can be tested. It is trite
that a right which may be conferred by a statute can also be taken
away by another.
It is also a trite law that the State is entitled to change its
legislative policy having regard to the ground realities and
changing societal condition. In fact, the legislature is expected to
take steps for enacting a new statute or amending the same so as
to keep pace with the changing societal condition as well as taking
into consideration the development of law, both domestic and
international.
The High Court, in our opinion, furthermore committed a
serious error in opining that although the legislature had the
legislative competence to enact Act 12 of 1999, but nevertheless,
proviso to Sections 5(1) and 5(2) thereof would be held to be
colourable. The High Court should have examined the question of
their constitutionality on the touchstone of Articles 14 and 21 of the
Constitution of India and not on the premise that the said
provisions are colourable in nature.
13. It was held by the High Court that Presidential Assent was
necessary and the 1999 Act was enacted to by-pass the
mandatory requirement of the President’s Assent. In determining
the said issue, it again ought to have posed unto itself the right
question, viz., whether the Presidential Assent was necessary for
enacting a statute which came within the purview of List II of the
Seventh Schedule of the Constitution of India. The answer thereto
must be rendered in negative.
The 1975 Act dealt with both agricultural and non-agricultural
lands. Transfer of land comes within the purview of Entry 6, List III
of the Seventh Schedule of the Constitution of India. There exists a
Parliamentary Act in that behalf, as for example, Transfer of
Property Act. Only because the 1975 Act could be held to be in
conflict with the provisions of the Transfer of Property Act, the
Presidential Assent was necessary having regard to Clause (2) of
Article 254 of the Constitution of India but once the said statute is
repealed and in its place a new Act is brought on the statute book,
which comes strictly within the purview of Entry 49, List II of the
Seventh Schedule of the Constitution of India, no Presidential
Assent would be necessary. Presidential Assent would be
necessary for the purpose of amendment of the Act and not for
enacting a separate statute which came within the purview of a
different entry and a different List.
It is furthermore well-known that Article 254 of the Constitution
of India would be attracted only in a case where two statutes are
enacted under the Concurrent List, viz., one by the State
Legislature and the other by the Parliament of India, and not in any
other case.
14.Before adverting to the said question, we may notice the
background facts leading to the issuance of a writ of mandamus.
Admittedly the State was not implementing the provisions of
the 1975 Act. Dr. P. Nalla Thampy Thera filed O.P. No.8879 of
1988 for direction upon the State and its officers to implement the
provisions of the 1975 Act. The learned Additional Advocate
General appearing for the State gave an undertaking to the effect that “utmost steps would be taken for the disposal of the
applications and that the Act would be enforced in all its rigour”, on
the basis whereof the Original Petition was allowed on 15th
October, 1993 directing the State to give directions to the
Authorities under the Act to dispose of the applications pending
before them within six months of that date.
As the State had taken extension of time by an order dated
13th August, 1996, a learned Single Judge, inter alia, directed the
Revenue Divisional Officers to cause delivery of the properties
covered by orders for restoration against which no appeals were
pending and in which no compensation was payable, forthwith and
in any event within six weeks from that date.
A writ appeal was preferred thereagainst and an interim order
of stay was passed on 11th October, 1996. The matter was
referred to a Full Bench. We have noticed heretobefore the order
dated 25th November, 1998.
We have also noticed the order of the Full Bench dated 6th
January, 1999.
The High Court was, thus, aware of the impending legislation.
The extension of time was subject to a new legislation.
The 1975 Act was a conditional legislation. It came into force
with effect from 24th January, 1986. Directions were issued only in
regard to implementation of the statutory provisions It was not a
case where by reason of issuance of writ of mandamus, certain
benefits were conferred on a person or a group of persons.
In Madan Mohan Pathak (supra), the Calcutta High Court had
issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class III and Class IV
employees for years April 1, 1975 to March 31, 1976 along with
their salary for the month of April, 1976 as provided by the
Settlement. The said decision attained finality as Letters Patent
Appeal preferred thereagainst had been withdrawn by the Life
Insurance Corporation. In the meantime a Parliamentary Act,
known as Life Insurance Corporation (Modification of Settlement)
Act, 1976 came into force.
In the said factual backgrounds, it was held :-
“7. But before we proceed further, it would be convenient at
this stage to refer to one other contention of the petitioner
based on the judgment of the Calcutta High Court in Writ
Petition 371 of 1976. The contention was that since the
Calcutta High Court had by its judgment dated May 21, 1976
issued a writ of mandamus directing the Life Insurance
Corporation to pay annual cash bonus to Class III and Class IV
employees for the year April 1, 1975 to March 31, 1976 along
with their salary for the month of April, 1976 as provided by the
Settlement and this judgment had become final by reason of
withdrawal of the Letters Patent Appeal preferred against it,
the Life Insurance Corporation was bound to obey the writ of
mandamus and to pay annual cash bonus for the year April 1,
1975 to March 31, 1976 in accordance with the terms of clause
8(ii) of the Settlement. It is, no doubt, true, said the petitioners,
that the impugned Act, if valid, struck at clause 8(ii) of the
Settlement and rendered it ineffective and without force with
effect from April 1, 1975 but it did not have the effect of
absolving the Life Insurance Corporation from its obligation to carry out the writ of mandamus. There was, according to the
petitioners, nothing in the impugned Act which set at naught
the effect of the judgment of the Calcutta High Court or the
binding character of the writ of mandamus issued against the
Life Insurance Corporation. This contention of the petitioners
requires serious consideration and we are inclined to accept it.
1. It is significant to note that there was no reference to the
judgment of the Calcutta High Court in the Statement of
Objects and Reasons, nor any non obstante clause
referring to a judgment of a Court in Section 3 of the
impugned Act. The attention of Parliament does not
appear to have been drawn to the fact that the Calcutta
High Court has already issued a writ of mandamus
commanding the Life Insurance Corporation to pay the
amount of bonus for the year April 1, 1975 to March 31,
1976. It appears that unfortunately the judgment of the
Calcutta High Court remained almost unnoticed and the
impugned Act was passed in ignorance of that judgment.
Section 3 of the impugned Act provided that the
provisions of the Settlement insofar as they relate to
payment of annual cash bonus to Class III and Class IV
employees shall not have any force or effect and shall
not be deemed to have had any force or effect from April
1, 1975. But the writ of mandamus issued by the Calcutta
High Court directing the Life Insurance Corporation to
pay the amount of bonus for the year April 1, 1975 to
March 31, 1976 remained untouched by the impugned
Act. So far as the right of Class III and Class IV
employees to annual cash bonus for the year April 1, 1975 to March 31, 1976 was concerned, it became
crystallised in the judgment and thereafter they became
entitled to enforce the writ of mandamus granted by the
judgment and not any right to annual cash bonus under
the Settlement. This right under the judgment was not
sought to be taken away by the impugned Act. The
judgment continued to subsist and the Life Insurance
Corporation was bound to pay annual cash bonus to
Class III and Class IV employees for the year April 1,
1975 to March 31, 1976 in obedience to the writ of
mandamus. The error committed by the Life Insurance
Corporation was that it withdrew the Letters Patent
Appeal and allowed the judgment of the learned Single
Judge to become final. By the time the Letters Patent
Appeal came up for hearing, the impugned Act had
already come into force and the Life Insurance
Corporation could, therefore, have successfully
contended in the Letters Patent Appeal that, since the
Settlement, insofar as it provided for payment of annual
cash bonus, was annihilated by the impugned Act with
effect from April 1, 1975, Class III and Class IV
employees were not entitled to annual cash bonus for the
year April 1, 1975 to March 31, 1976 and hence no writ
of mandamus could issue directing the Life Insurance
Corporation to make payment of such bonus. If such
contention had been raised, there is little doubt, subject
of course to any constitutional challenge to the validity of
the impugned Act, that the judgment of the learned
Single Judge would have been upturned and the writ
petition dismissed. But on account of some inexplicable
reason, which is difficult to appreciate, the Life Insurance
Corporation did not press the Letters Patent Appeal and
the result was that the judgment of the learned Single
Judge granting writ of mandamus became final and
binding on the parties. It is difficult to see how in these
circumstances the Life Insurance Corporation could
claim to be absolved from the obligation imposed by the
judgment to carry out the writ of mandamus by relying on
the impugned Act.”.
Madan Mohan Pathak (supra) has been followed in P.
Venugopal v. Union of India, [ (2008) 5 SCC 1 ], wherein it was
opined :-
“As in Mohan Pathak case (para 8), as quoted hereinabove, in
the instant case also Parliament does not seem to have been
apprised about the pendency of the proceedings before the
Delhi High Court and this Court and declaration made and
directions issued by the Delhi High Court at different stages. In
the impugned amendment, there is no non obstante clause.
The impugned amendment introducing the proviso, therefore,
cannot be treated to be a validating Act.”
A distinction must be made between issuance of writ of
mandamus conferring right upon a person or class of persons and
the one directing implementation of the Act. However, in this case
while the learned Single Judge of the High Court issued a direction
that the applications filed by the members of the Scheduled Tribes
should be determined by the Revenue Authorities in terms of the
provisions of the 1975 Act; the same, in our opinion, did not mean that the High Court itself had issued a writ of mandamus directing
restoration of the lands in question.
As in most of the cases members of the Scheduled Tribes
have not been paid compensation through their vendees in terms
of the provisions of 1975 Act. They did not attain finality. If that be
so, in our opinion question of invoking the decision of Madan
Mohan Pathak (supra) in the factual matrix involved herein does
not arise.
Further, it is one thing to say that a writ of mandamus shall be
obeyed despite passing of a subsequent Act as it had attained
finality or that it had not been brought to the notice of the
Legislature, but it is another thing to say that no writ of mandamus
was issued conferring rights upon the parties. Directions to
implement the provisions of the Act by itself did not confer any
right upon the parties. The lis has to be adjudicated upon. It did not
attain finality in that sense of the term.
We may notice that scope of Madan Mohan Pathak (supra)
has been explained in Indian Aluminium Co. (supra), stating :-
“49. In Madan Mohan Pathak v. Union of India, on the basis of
a settlement, bonus became payable by the LIC to its Class III
and Class IV employees. In a writ, a Single Judge of the
Calcutta High Court issued mandamus directing payment of
bonus as provided in the settlement. During the pendency of
letters patent appeal, LIC (Modification of Settlement) Act,
1976 was enacted denying bonus payable to the employees.
The appeal was withdrawn. The validity of 1976 Act was
challenged in this Court under Article 32 of the Constitution. A
Bench of seven Judges had held that Parliament was not aware of the mandamus issued by the court and it was
declared that the 1976 Act was void and writ of mandamus
was issued to obey the mandamus by implementing or
enforcing the provisions of that Act and directed payment of
bonus in terms of the settlement. It was pointed out that there
was no reference to the judgment of the High Court in the
Statement of Objects and Reasons, nor any non obstante
clause referring to the judgment of the Court was made in
Section 3 of the Act. Attention of Parliament was not drawn to
the mandamus issued by the High Court. When the mandamus
issued by the High Court became final, the 1976 Act was held
invalid. Shri R.F. Nariman laid special emphasis on the
observations of learned Chief Justice Beg who in a separate
judgment had pointed out that the basis of the mandamus
issued by the court could not be taken away by indirect fashion
as observed at p. 743, C to F. From the observations
made by Bhagwati, J. per majority, it is clear that this Court did
not intend to lay down that Parliament, under no circumstance,
has power to amend the law removing the vice pointed out by
the court. Equally, the observation of Chief Justice Beg is to be
understood in the context that as long as the effect of
mandamus issued by the court is not legally and
constitutionally made ineffective, the State is bound to obey
the directions. Thus understood, it is unexceptionable. But it
does not mean that the learned Chief Justice intended to lay
down the law that mandamus issued by court cannot at all be
made ineffective by a valid law made by the legislature,
removing the defect pointed out by the court.”
Madan Mohan Pathak (supra), thus, stood explained in Indian
Aluminium Co. v. State of Kerala (supra) to be understood in the
context that as long as the effect of mandamus issued by the court
is not legally and constitutionally made ineffective, the State is
bound to obey the directions.
Yet again, in National Agricultural Coop. Marketing Federation
of India Ltd. v. Union of India, [(2003) 5 SCC 23], explaining
Madan Mohan Pathak, it has been held :-
“26. The decision is an authority for the principle that a judicial
decision which has become final inter partes, cannot be set at
naught by legislative action, a principle that is well entrenched.
Therefore, if, as has been contended by the appellant, the
High Court in 1981 had in proceedings between the appellant
and the Revenue held that the appellant was entitled to the
benefit of the deduction under Section 80-P(2)(a)(iii) of the Act,
and the Revenue has not impugned the High Court’s decision,
that decision binds the parties for the assessment years in
question and cannot be reopened because of the 1998
Amendment. This principle, however, does not in any way
detract from the principle that the legislature may “cure” the
statute so that it more correctly represents its intention. Such
curative legislation does not in fact touch the validity of a
judicial decision which may have attained finality albeit under
the pre-amended law.”
In Mylapore Club v. State of T.N. [ (2005) 12 SCC 752 ], P.K.
Balasubramanyan, J opined :-
“The power to legislate is a plenary power vested in the
legislature and unless those who challenge the legislation
clearly establish that their fundamental rights under the
Constitution are affected or that the legislature lacked
legislative competence, they would not succeed in their
challenge to the enactment brought forward in the wisdom of
the legislature. Conferment of a right to claim the benefit of a
statute, being not a vested right, the same could be withdrawn
by the legislature which made the enactment. It could not be
said that the Amendment Act lacked either legislative
competence or that it is unconstitutional.”
Where a new Act is enacted removing the very basis on which
the High Court made a preceding Act invalid; it matters not
whether the same is not termed as a validating statute or not. In
this case, however, in our opinion, such a question does not arise
as the 1975 Act was not declared to be invalid.
In Bakhtawar Trust v. M.D. Narayan, [(2003) 5 SCC 298] this
Court held :-
“In order to validate an executive action or any provision of a
statute, it is not sufficient for the legislature to declare that a
judicial pronouncement given by a court of law would not be
binding, as the legislature does not possess that power. A
decision of a court of law has a binding effect unless the very
basis upon which it is given is so altered that the said decision
would not have been given in the changed circumstances.”
The reason is not far to seek. The Legislature can not over-rule
a judgment but it can remove the basis on which the judgment has
been rendered.
The Act was implemented both in respect of those who had
two acres of land and those who had more.
The 1999 Act removes the basis for passing of the judgments
so far as the applications for restoration filed by Members of the
Scheduled Tribes in regard to their lands which was less than 2
hectares is concerned.
It provides that the term ‘land’ would mean ‘only agricultural
land’ and the application for restoration shall lie only in case where
the extent of the land exceed two hectares. (See Section 2(b) and
Section 5 of 1999 Act).
Admittedly, the 1999 Act was made effective retrospectively
from 24th day of January, 1986. It contains a Repeal and Savings
clause. In that view of the matter, in our opinion, it was not
necessary to term the statute as a validating statute containing a
non-obstante clause.
It is difficult to conceive, having regard to the orders issued by
the Full Bench, that the Legislature were not aware of the orders
passed by the High Court. In any event the Full Bench of the High
Court has stated that the directions issued by it would be subject to
the new enactment.
We, therefore, are of the opinion that Madan Mohan Pathak
(supra) has no application to the present cases.
15.A vested right has been defined in P. Ramanatha Aiyar’s
Advanced Law Lexicon, 3rd edition, page 4888, in the following
terms:
“Vested rights. Property rights.
The expression ‘vested right’ means an absolute or
indefeasible right. It is an immediate fixed right in present or
future enjoyment in respect of property. The claim based on
the vested right or settled expectation to obtain sanction
cannot be set up against statutory provisions. It cannot be
countenanced against public interest and conveniences which
are sought to be served.”
In Southern Petrochemical Industries Co. Ltd. v. Electricity
Inspector & ETIO [(2007) 5 SCC 447], this Court held:
“106. Furthermore, exemption from payment of tax in favour of
the appellants herein would also constitute a right or privilege.
The expression “privilege” has a wider meaning than right. A
right may be a vested right or an accrued right or an acquired
right. Nature of such a right would depend upon and also vary
from statute to statute. It has been so held by this Court, while
construing Section 6 of the General Clauses Act, in Gurcharan
Singh Baldev Singh v. Yashwant Singh in the following terms:
(SCC p. 432, para 3)
“The objective of the provision is to ensure protection of any
right or privilege acquired under the repealed Act. The only
exception to it is legislative intention to the contrary. That is,
the repealing Act may expressly provide or it may impliedly
provide against continuance of such right, obligation or
liability.”
[See also Kusumam Hotels Private Limited v. Kerala State
Electricity Board and Others (2008) 13 SCC 213 and State of
Punjab and Others v. Bhajan Kaur and Others (2008) 12 SCC 112]
The question as to whether the members of Scheduled Tribe
had a vested right or not, may now be considered. The properties
were sold by them to persons who were not the members of the Schedule Tribes long back. Such transactions, when entered into,
were valid being not barred by any statute. The vendees, thus,
acquired indefeasible right. They, however, were invalidated by
Section 5 of the 1975 Act. The consequence of rendition of such
transactions as invalid was to restore the lands back to possession
of the tribals wherefor certain procedural requirements were to be
complied with. The 1975 Act, however, was only brought into force
in 1986, that too with retrospective effect from 1982. In the
meanwhile, many purchasers again acquired prescriptive rights. It
was furthermore made effective only when the Rules were framed
in 1986.
The right of restoration was of two kinds, one, in respect of
agricultural land and the other in regard to non-agricultural land.
We intend to deal with them separately. Indisputably, despite the
1975 Act having been brought in force and the Rules having been
framed for the effective implementation thereof, the State and the
Revenue Officers took no steps for implementation therefor for a
long time. The process started only when a writ of mandamus was
issued by the High Court. For its implementation, the substance of
the proceedings has been noticed by us heretobefore. The 1975
Act and the 1986 Rules provided for several stages. The
procedure laid down in the 1986 Rules consists of filing of
application for restoration, calling for objections, determination of
the issues, filing of appeals. Once that stage reached finality, the
applicants are required to pay compensation to the land holder in
terms of Section 9 of the 1975 Act which was a condition
precedent therefor.
The 1975 Act contemplated raising of loan from the
government by the members of the Scheduled Tribe, subject to the
conditions laid down in the Rules. The procedure for grant of loan
and consequent payment of compensation to the owners of land
was a pre-condition for actual restoration thereof.
When, thus, loans are raised and amount of compensation is
paid to the transferees, in our opinion, only then the vested right
for getting back possession of the lands gets accrued and not prior
thereto. We say so because the 1975 Act itself provides for a
statute depriving the land holders from a right of property, which is
otherwise protected by reason of Article 300-A of the Constitution
of India. It is also a human right. [See Vimlaben Ajitbhai Patel v.
Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 and
Union of India & Ors. v. M/s. Martin Lottery Agencies Ltd. [(2009 4
SCALE 34]
The provisions of the 1975 Act, therefore, deserve strict
construction. Although we are not required to consider the validity
of the 1975 Act stricto sensu, we may place on record that even
the decisions of this Court have declared similar provisions to be
intra vires.
Before, however, we advert thereto, we would like to make
some general observations.
No territory in the State of Kerala has been declared as
Scheduled Area within the meaning of Article 244 read with the
Fifth Schedule of the Constitution of India. A distinction, thus, must
be borne in mind in regard to the enactments which deal with tribal
areas and which do not. If a law (e.g. Scheduled Area Regulation
Act) deals with the tribal areas, the same amends provisions of the other Acts including the Limitation Act, 1963. If a person is in
possession of a land, which he had obtained by reason of a valid
transaction as it then was, which was subsequently sought to be
invalidated, he would ordinarily receive protection by reason of
doctrine of prescription provided for under the Limitation Act, by
reason whereof if he has been in possession thereof for a period of
more than 12 years, he would have acquired an indefeasible right
thereto despite the fact that the transaction has been invalidated
by a later Act. It was so held in Manchegowda (supra). Therein, a
distinction was made between a defeasible right and an
indefeasible right and this Court was concerned with a transaction
which was voidable in nature.
It is, however, not a case where a transfer has been made in
contravention of the terms of the grant or any law, regulation or
rule governing such grant which could be legally avoided or
possession thereof could be recovered through process of law.
Therein, this Court clearly held:
“24. Though we have come to the conclusion that the Act
is valid, yet, in our opinion, we have to make certain aspects
clear. Granted lands which had been transferred after the
expiry of the period of prohibition do not come within the
purview of the Act, and cannot be proceeded against under the
provisions of this Act. The provisions of the Act make this
position clear, as Sections 4 and 5 become applicable only
when granted lands are transferred in breach of the condition
relating to prohibition on transfer of such granted lands.
Granted lands transferred before the commencement of the
Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also
in case where granted lands had been transferred before the
commencement of the Act in violation of the condition
regarding prohibition on such transfer and the transferee who
had initially acquired only a voidable title in such granted lands
had perfected his title in the granted lands by prescription by
long and continuous enjoyment thereof in accordance with law
before the commencement of the Act, such granted lands
would also not come within the purview of the present Act, as
the title of such transferees to the granted lands has been
perfected before the commencement of the Act. Since at the
date of the commencement of the Act the title of such
transferees had ceased to be voidable by reason of acquisition
of prescriptive rights on account of long and continued user for
the requisite period, the title of such transferees could not be
rendered void by virtue of the provisions of the Act without
violating the constitutional guarantee. We must, therefore, read
down the provisions of the Act by holding that the Act will apply
to transfers of granted lands made in breach of the condition
imposing prohibition on transfer of granted lands only in those
cases where the title acquired by the transferee was still
voidable at the date of the commencement of the Act and had
not lost its defeasible character at the date when the Act came
into force. Transferees of granted lands having a perfected and
not a voidable title at the commencement of the Act must be
held to be outside the pale of the provisions of the Act. Section
4 of the Act must be so construed as not to have the effect of
rendering void the title of any transferee which was not
voidable at the date of the commencement of the Act.” In Lingappa (supra), this Court held:
“26. The impugned Act in its true nature and character is a law
relating to transfers and alienations of agricultural lands by
members of Scheduled Tribes in the State to persons not
belonging to Scheduled Tribes. Such a law does not fall within
Entries 6 and 7 in List III but is within Entry 18 in List II. We
may here set out Entries 6 and 7 in List III:
“6. Transfer of property other than agricultural land; registration
of deeds and documents.
7. Contracts, including partnership, agency, contracts of
carriage, and other special forms of contracts, but not including
contracts relating to agricultural lands.”
The words “other than agricultural land” in Entry 6 and the
words “but not including contracts relating to agricultural land”
in Entry 7 in List III have the effect of delimiting the legislative
power of the Union to make a law with respect to transfers and
alienations of agricultural lands or with respect to contracts in
relation thereto. The power to legislate cannot be denied to the
State on the ground that the provisions of Sections 3(1) and 4
which provide for annulment of transfers by tribals incidentally
trench upon the existing law, namely, the Transfer of Property
Act, 1882 or a law made by Parliament viz. the Specific Relief
Act, 1963. The power of the State Legislature to make a law
with respect to transfer and alienation of agricultural land under
Entry 18 in List II carries with it not only a power to make a law
placing restrictions on transfers and alienations of such lands
including a prohibition thereof, but also the power to make a
law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State
Legislature being relatable to Entry 18 in List II of the Seventh
Schedule.”
It was observed:
“…That apart, members of Scheduled Tribes i.e. tribals who
are mostly aboriginals constitute a distinct class who need a
special protection of the State. Further, the question as to how
far and by what stages such laws are to be implemented
involves a matter of policy and therefore beyond the domain of
the courts. Secondly, the Act no doubt makes a distinction
between a non-tribal transferee who had diverted the lands
obtained by him under a transfer from a tribal during the period
from April 1, 1957 to July 6, 1974 and had put such lands to
non-agricultural purpose, and other non-tribal transferees who
got into possession under transfers effected by tribals during
the same period but continued to use the lands for agricultural
purposes. There is no question of any differential treatment
between two classes of persons equally situate. When a part
of the land is diverted to a non-agricultural purpose viz. the
construction of a dwelling house or the setting up of an
industry, the State Legislature obviously could not have made
a law for annulment of transfer of such lands by tribals under
Entry 18 in List II as the lands having been diverted to non-
agricultural purposes ceased to be agricultural lands. In the
case of such non-agricultural land, if the State Legislature
made such a law it would not be effective unless it was
reserved for the assent of the President and received such
assent.”
Therein, thus, this Court found that Sub-section (1) of Section
3 of Maharashtra Restoration of Lands to Scheduled Tribes Act,
1974 made detailed provision to strike a balance between the
mutual rights and obligations of the parties, upon making of an
order for restoration of such land to the members of the Scheduled
Tribes.
It was furthermore held that the said Act having been placed in
the Ninth Schedule of the Constitution of India, the validity thereof
could not have been challenged for contravention of Articles 14,
19(1)(f) or Article 31 of the Constitution of India.
Yet again in P. Rami Reddy and Others v. State of Andhra
Pradesh and Others [(1988) 3 SCC 433], there existed a law
prohibiting transfer in the agency tract areas, viz., the Agency
Tracts Interest and Land Transfer Act, 1917. Those areas were
notified as Scheduled Areas after coming into force of the
Constitution by reason of the Scheduled Area (Part ‘A’ States)
Order, 1950. By reason of the power conferred on the Governor of
the State by Para 5(2) of the Fifth Schedule, the regulations
named as A.P. Scheduled Areas Land Transfer Regulation, 1959
were made. In the aforementioned backdrop, it was opined:
“19…The community cannot shut its eyes to the fact that the
competition between the “tribals” and the “non-tribals” partakes
of the character of a race between a handicapped one-legged
person and an able-bodied two-legged person. True, transfer
by “non-tribals” to “non-tribals” would not diminish the pool. It
would maintain status quo. But is it sufficient or fair enough to
freeze the exploitative deprivation of the “tribals” and thereby
legalize and perpetuate the past wrong instead of effacing the
same? As a matter of fact it would be unjust, unfair and highly
unreasonable merely to freeze the situation instead of
reversing the injustice and restoring the status quo ante. The
provisions merely command that if a land holder voluntarily
and on his own volition is desirous of alienating the land, he
may do so only in favour of a “tribal”. It would be adding insult
to injury to impose such a disability only on the tribals (the
victims of oppression and exploitation themselves) and
discriminate against them in this regard whilst leaving the “non-
tribals” to thrive on the fruits of their exploitation at the cost of
“tribals”. The “non-tribal” economic exploiters cannot be
installed on the pedestal of immunity and accorded a privileged
treatment by permitting them to transfer the lands and
structures, if any, raised on such lands, to “non-tribals” and
make profits at the cost of the tribals. It would not only
tantamount to perpetuating the exploitation and injustice, it
would tantamount to placing premium on the exploitation and
injustice perpetrated by the non-tribals. Thus it would be the
height of unreasonableness to impose the disability only on the
tribals whilst leaving out the “non-tribals”. It would also be
counterproductive to do so.”
However, in K.T. Huchegowda v. Dy. Commissioner [(1994) 3
SCC 536], this Court held:
“8. On a plain reading, granted land will mean, any land
granted by the Government to a person, who is a member of
the Scheduled Castes or Scheduled Tribes which includes
land allotted to such persons. Grant may be of different types;
it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by
transfer of the possession of the land, by way of allotment,
without conveying the title over such land of the State
Government. If by grant, the transferee has acquired absolute
title to the land in question from the State Government, then
subject to protection provided by the different provisions of the
Act, he will be subject to the same period of limitation as is
prescribed for other citizens by the provisions of the Limitation
Act, in respect of extinguishment of title over land by adverse
possession. On the other hand, if the land has been allotted by
way of grant and the title remains with the State Government,
then to extinguish the title that has remained of the State
Government by adverse possession, by a transferee on the
basis of an alienation made in his favour by an allottee, the
period of limitation shall be 30 years. Incidentally, it may be
mentioned that some of the States in order to protect the
members of the Scheduled Tribes from being dispossessed
from the lands which belong to them and of which they are
absolute owners, for purpose of extinguishment of their title by
adverse possession, have prescribed special period of
limitation, saying that it shall be 30 years. In Bihar, vide
Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it
has been prescribed that it would be 30 years in respect of
immovable property belonging to a member of the Scheduled
Tribes as specified in Part III to the Schedule to the
Constitution (Scheduled Tribes) Order, 1950.
9. There is no dispute that so far as the Act with which we are
concerned, no special period of limitation has been prescribed,
in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute
ownership by the State Government. In this background, when
this Court in the case of Sunkara Rajayalakshmi v. State of
Karnataka said that the period of limitation, which has to be
taken into account for the purpose of determining, whether the
title has been perfected by prescription, shall be that which
runs against the State Government and therefore it would be
30 years and not 12 years, has to be read in context with the
lands, the ownership whereof, has not been transferred
absolutely, to the members of the Scheduled Castes and
Scheduled Tribes; the lands having been only allotted to them,
the title remaining with the State Government. The cases
where the transfer by the State Government by way of grant
has been absolute, then unless there is an amendment so far
the period of limitation is concerned, it is not possible to apply
the special limitation of 30 years, so far such grantees are
concerned, when the question to be determined, is as to
whether a transferee in contravention of the terms of the grant,
has perfected his title by remaining in continuous and adverse
possession. The transferee, who has acquired the land from
the grantee, in contravention of the terms of the grant shall
perfect his title by adverse possession by completing the
period of 12 years. When this Court said in its main judgment,
in the case of Manchegowda v. State of Karnataka that in
cases where granted lands had been transferred before the
commencement of the Act in violation of the condition,
regarding prohibition on such transfer and the transferee who
had initially acquired only a voidable title, in such granted lands
had perfected his title in the granted lands by prescription by
long and continuous enjoyment thereof in accordance with law
before the commencement of the Act, has to be read, for
purpose of determining the period of limitation in respect of
lands granted with absolute ownership, to mean 12 years and
grant by way of allotment without transfer of the ownership in
favour of the grantee, to mean 30 years.”
[See also Papaiah v. State of Karnataka (1996) 10 SCC 533]
The statutory provisions, therefore, must be interpreted in the
light of the constitutional provisions.
The decisions of this Court, therefore, are clear and
unambiguous. In a case involving members of the Scheduled Tribe
living in Scheduled Area the period of limitation can be extended,
but it is not permissible in respect of an area which has not been
declared to be a Scheduled Area. When a person acquires an
indefeasible right, he can be deprived therefrom only by taking
recourse to the doctrine of Eminent Domain. If a person is sought
to be deprived of an indefeasible right acquired by him, he should
be paid an amount of compensation. In a case of this nature,
therefore, where an amount of compensation has not actually been
tendered, the vendees of the land could not be deprived of their
right to be dispossessed. In that view of the matter, a distinction
must be made between a case where an amount of compensation
has been paid and in a case where it has not been. If a vested
right has not been taken away, the question of applicability of
Article 14 of the Constitution of India would not arise.
The High Court, however, proceeded to apply Article 14 of the
Constitution of India on the premise that the provisions of the 1999
Act clearly seek to destroy the right conferred on Scheduled Area by Act 31 of 1975. The approach of the High Court being not
correct, the same cannot be sustained.
REASON FOR AMENDMENT
16.This brings us to the question as to whether the 1999 Act is invalid inter alia because the State was apprehensive that the assignees may offer organized resistance for implementation of the 1975 Act and the State wanted to avert a conflict between the tribals and the non-tribals. The short answer to the said question is that the State cannot shut its eyes to the ground realities. The Statement of Objects and Reasons would clearly show that the State did not take an action in a half-hearted manner. It consulted the tribal organizations. It is stated in its Counter Affidavit by the State before the High Court as under: “… Under the above circumstances, urgent steps were taken to have discussion with the various tribal organisations did not insist upon getting the very same land that had been alienated but would prefer to obtain an equal extent of land from the Government. Many organisations did not insist that the Act 31 of 1975 should be implemented in its original form. The Government also had serious discussions with various political parties and other concerned with tribal welfare. Discussions were also held with the present occupants of the alienated tribal lands. On the basis of the discussions and deliberations the Government thought it proper to introduce a suitable legislation which would adequately take care of the interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restriction on transfer by and Restoration of Land to the Scheduled Tribes Act, 1999 was introduced in the State Assembly and the same was unanimously passed by the Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999.” If the contention of the State is correct that most of the tribal organizations did not insist upon getting the same land that they had been alienated from but would have preferred to have alternate land allotted to them by the government and as many organizations insisted that the 1975 Act may not be implemented in its original form, we think that action of the State cannot be termed to be arbitrary so as to attract the wrath of the equality clause contained in Article 14 of the Constitution of India. While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was for the elected representatives of the people to determine as to whether by reason of the provisions of the 1999 Act the members of the Scheduled Tribe would face dislocation or that it would impinge on their culture connected with their lands. The ground realities are presumed to be known to the State and if anybody raises a contrary contention, it would be for him to bring on record sufficient materials to show so as to enable the court to arrive at a conclusion that the State’s action was arbitrary. It is furthermore a well-settled principle of law that the superior court in exercise of their power of judicial review of legislation would not ordinarily determine the merit of the legislation by entering into a broad question as to whether materials placed before the Legislature were sufficient for bringing out the legislation in question or not. Such inquisitorial inquiry on the part of the court, in our opinion, is beyond the province of the court. BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT
17.The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are concerned. The 1975 Act came into force with retrospective effect from 1.01.1982. But, as noticed hereinbefore, the Rules were framed only on 18.10.1986. Act 12 of 1999, however, came into force on 20.04.1999 but was given a retrospective effect and retroactive operation from 24.01.1986. We heretobelow may notice a comparative chart of the salient provisions of the two Acts: Act 31/75 – Came into force on 01.01.1982 Pages 135 – 142 2(b) “Immovable property” defined as including standing crops and trees. Act applies to such property 4.Transfer of any immovable property by a tribal to a non tribal without previous consent of competent authority after commencement of the Act shall be void. 5.Transfer of immovable property by Tribal to non tribal after 01.01.1960 shall be deemed to be invalid 6(1) The Tribal whose transfer is invalidated under Sections 4 and 5 shall be entitled to restoration of possession of the property. Sub Section (5) provide for a remedy of appeal to the aggrieved persons to the competent authority. 7. Govt. may take Suo-moto action for restoration 11. Where possession is restored to tribal under Section 6 he shall pay to the quantum transferee the consideration received as also the value of the improvement effected by the transferee as determined by the competent authority. 12. Government may advance loans to tribal for; payment of the amount u/s.11 to be repaid in half yearly or annual instalment and to be recovered as an arrear of land revenue if kept in arrears. 8.1 Similar to section 11 of Act 31 of 75 9. Government shall provide grant to eligible tribal/liable to pay the amount under Section 8. 10. (1) Government shall assign land to landless tribal families not exceeding 40 Ares in extent in his own district within two years or extended time. (2) If any family owns land below 40 Ares I extent Govt. to assign such extent of land as is necessary to make up 40 Ares. 11. Schedule Tribe rehabilitation and Welfare Fund to be constituted for construction of houses for tribal families and for other welfare measures. 12.Provision for legal assistance 22 Repeal of Act 31 of 1975 with usual saving clause. Broadly, speaking, the provisions of the 1999 Act are more beneficial to the members of the Scheduled Tribe. For determining the said question, we must take a holistic view of the matter. However, we are not oblivious of the fact that restoration in respect of non-agricultural land and to the extent of 2 acres are not contemplated by the 1999 Act. We are also not oblivious of the fact that, it would appear, on the basis of the statistics furnished by the learned Additional Advocate General before the High Court, to which we have referred to heretobefore itself that a large number of members of the Scheduled Tribe would be deprived of the benefit of restoration of their own lands constituted in forest areas. In the counter-affidavit filed by the State, it is stated: “It is submitted that the Government found that Act 31 of 1975 would not really serve the purpose of ameliorating the problems of the scheduled tribes and might instead lead to law and order situation in various parts of the State. After a comprehensive study of the matter the Government passed Act 12 of 1999. The allegation that the intention of Act 12 of 1999 is other than protection of the rights of schedule tribes is incorrect and denied. A reading of all the provisions of the Act 12 of 1999 would make it clear that the legislature has kept the over all interests of the tribals and all the people of the State is general while enacting Act 12 of 1999. It is submitted that no right conferred by Act 31 of 1975 has been taken away by Act 12 of 1999. The allegation that Act 12 of 1999 is meant to protect the right of tribals is incorrect and is denied. It is submitted that the various provisions of Act 12 of 1999 had already been delineated elsewhere in the counter affidavit and the reasons for the enactment of Act 12 of 1999 have also been explained.” Out of 4724 applications for restoration filed, 1475 applications involved transfer of less than 50 cents, 898 applications involved transfer of “extent between 50 cents and 1 acre”, 904 applications covered cases of “transfer of extent between 1 and 2 acres and 1074 applications related to “transfer of extent between 2 acres and 5 acres and that only 373 applications involved cases of transfer of more than 5 acres or 2 hectares. The State has clearly brought on record the fact that it had conducted further studies wherefrom it came to learn that about 12,000 tribal families in the State did not possess any land of their own and 30,000 families did not have any house of their own. It is necessary, according to us, to bear in mind that the law postulates grant of compensation in a case where the right on a land is sought to be taken away. The 1975 Act postulates grant of compensation to the alienees, the amount wherefor was required to be determined by a competent authority. The amount of compensation so determined was to be paid by the members of the Scheduled Tribe to their vendees in respect whereof he was to take loan from the State. The amount of loan taken was, thus, required to be repaid. The 1999 Act, however, provides for a grant which need not be repaid. The members of the Scheduled Tribe were further to get one acre of land from the State although they might have transferred even 5 or 10 cents of land. In the case of a transfer made upto two acres, he is to be allotted two acres of land by the State. Whether such land is available with the State Government or not is a different question, which we intend to deal with separately. The statute also contemplates building of houses for the members of the Scheduled Tribes. It provides that the land to the extent of one acre also be provided to the landless tribals. It contemplates constitution of a rehabilitation fund. The 1999 Act, therefore, if given a holistic view, is more beneficial to the members of the Scheduled Tribe than the 1975 Act. If the State contemplated a legislative policy for grant of more benefits to a vast section of people, taking care of not only restoration of land but those who have not transferred any land at all or otherwise landless, the statute by no stretch of imagination can be treated to be an arbitrary and an unreasonable one. ARTICLE 21 ISSUE
18.Article 21 deals with right to life and liberty. Would it bring
within its umbrage a right of tribals to be rehabilitated in their own
habitat is the question? If the answer is to be rendered in the
affirmative, then, for no reason whatsoever even an inch of land
belonging to a member of Scheduled Tribe can ever be acquired.
Furthermore, a distinction must be borne between a right of
rehabilitation required to be provided when the land of the
members of the Scheduled Tribe are acquired vis-à-vis a
prohibition imposed upon the State from doing so at all. The
question must be considered from another angle. The Scheduled
Tribes are not in an agency area or Scheduled Area. The literacy
rate of the tribals of Kerala is 57% which is much more than the national average. Most of the tribal children have elementary
education. In the schools and colleges of Kerala, Malayalam, Tamil
or English is taught. It has been noticed by various writers that the
tribal teachers have not been interacting with the students in the
tribal terms and, thus, gradually the tribal students have lost
respect for their language and begun to disregard their language,
their culture and, thus, their own primitive way of life. [See Tribes
of Kerala – Identity Crisis by Rayson K. Alex]
The learned author states:
“What is the criterion for the government to label a tribe as a
“scheduled” tribe in the constitution? Has the government
conducted a detailed study on the culture, traditions, their
interrelationship with the place they live in, their socio-
economic structures and judiciary before labeling them as
“scheduled” tribes? The reason for this categorization can be
attributed to their “supposed” backwardness and not their
distinct identity from the dominant society of the country.
Without taking into consideration aforementioned aspects of
the culture of the tribes, to create “awareness” and to finally
“develop” (in the narrow sense of the word) them, the tribes
were forced to merge and condition themselves along the lines
of the so-called “main-stream” Indian society. “When that was
challenged, the ideologues of the aggressing society
presented the theory of “integration” which in reality is the
other side of the same coin. And now has come the final blow
from the armory of the India state for the indigenous people of
the country in the form of total denial of their existence in India.
“India does not have indigenous population”! Thus declared
the Indian Permanent Mission in the United Nation in Geneva
(Mullick et al 7).
This is not an argument made to showcase the tribes of
Kerala as “scheduled tribes.” Now a question of serious
importance can be raised: Is there a need to uphold/preserve
this indigenous culture? The outer (can be read as “other”)
influences have spread their roots so strong that their minds
have been colonized (can be read as ‘altered’). Even though
the tribes carry wonderful memories of their rich past, they do
not want to be in the same situation as they were in days of
yore. So, the need for conservation of the tribal culture is the
problem of the non-tribes, especially the researchers, scholars
and activists working in this area. Intentionally or
unintentionally, changes are the only constant feature of any
culture. It can be observed that no culture can retain its flavor
at different points of time. But the questions to be addressed to
the “main-stream” and its government are: Are the tribes given
freedom to accept or deny what ever they want? Are they
given a free space to think, act and establish (as they used to
in days of yore?)”
We may notice that in Indigenous and Tribal Populations
Convention, 1957 which has been ratified by 27 countries including
India contained following clauses:
The right of ownership, collective or individual, of the members
of the populations concerned over the lands which these
populations traditionally occupy shall be recognised.
1. The populations concerned shall not be removed without
their free consent from their habitual territories except in
accordance with national laws and regulations for reasons
relating to national security, or in the interest of national
economic development or of the health of the said populations.
2. When in such cases removal of these populations is
necessary as an exceptional measure, they shall be provided
with lands of quality at least equal to that of the lands
previously occupied by them, suitable to provide for their
present needs and future development. In cases where
chances of alternative employment exist and where the
populations concerned prefer to have compensation in money
or in kind, they shall be so compensated under appropriate
guarantees.
3. Persons thus removed shall be fully compensated for any
resulting loss or injury.
1. Procedures for the transmission of rights of ownership and
use of land which are established by the customs of the
populations concerned shall be respected, within the
framework of national laws and regulations, in so far as they
satisfy the needs of these populations and do not hinder their
economic and social development.
2. Arrangements shall be made to prevent persons who are
not members of the populations concerned from taking
advantage of these customs or of lack of understanding of the
laws on the part of the members of these populations to secure
the ownership or use of the lands belonging to such members.”
Thus, removal of the population, by way of an exceptional
measure, is not ruled out. It is only subject to the condition that
lands of quality at least equal to that of the lands previously
occupied by them, suitable to provide for their present needs and
future development. We may, however, notice that this Convention
has not been ratified by many countries in the Convention held in
1989. Those who have ratified the 1989 Convention are not bound
by it.
Furthermore, the United Nations adopted a declaration on the
rights of indigenous peoples in September, 2007. Articles 3 to 5
thereof read as under:
Indigenous peoples have the right to self-determination. By
virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural
development.
Indigenous peoples, in exercising their right to self-
determination, have the right to autonomy or self-government
in matters relating to their internal and local affairs, as well as
ways and means for financing their autonomous functions.
Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of
the State.”
It is now accepted that the Panchasheel doctrine which
provided that the tribes could flourish and develop only if the State
interfered minimally and functioned chiefly as a support system in
view of passage of time is no longer valid. Even the notion of
autonomy contained in the 1989 Convention has been rejected by
India. However, India appears to have softened its stand against
autonomy for tribal people and it has voted in favour of United
Nations declaration on the rights of indigenous people which
affirms various rights to autonomy that are inherent in the tribal
peoples of the world. This declaration, however, is not binding.
This Court furthermore in Narmada Bachao Andolan v. Union
of India and Others [(2000) 10 SCC 664] while considering the
validity of acquisition of lands by the State of Madhya Pradesh for
a project known as Sardar Sarovar Project (SSP) by constructing a
dam on river Narmada as a result whereof the residence of tribals
in various States, viz., Madhya Pradesh, Gujarat, Maharashtra and
Rajasthan were affected, opined as under:
“62. The displacement of the tribals and other persons
would not per se result in the violation of their fundamental or
other rights. The effect is to see that on their rehabilitation at
new locations they are better off than what they were. At the
rehabilitation sites they will have more and better amenities
than those they enjoyed in their tribal hamlets. The gradual
assimilation in the mainstream of the society will lead to
betterment and progress.”
For the purpose of going into the question with regard to the
adjudication of the water dispute regarding the inter-State River
Narmada and the river valley thereof in terms of the provisions of the inter-State Water Disputes Act, the award inter alia provided
for relief and rehabilitation stating that no submergence of an area
would take place unless the oustees are rehabilitated.
This Court referred to Article 12 of the ILO Convention No. 107
holding:
“58. The said article clearly suggested that when the
removal of the tribal population is necessary as an exceptional
measure, they shall be provided with land of quality at least
equal to that of the land previously occupied by them and they
shall be fully compensated for any resulting loss or injury. The
rehabilitation package contained in the award of the Tribunal
as improved further by the State of Gujarat and the other
States prima facie shows that the land required to be allotted
to the tribals is likely to be equal, if not better than what they
had owned.”
Noticing that construction of a dam is of utmost importance for
development of the country as it plays an important role in
providing irrigation for food security, domestic and industrial water
supply, hydroelectric power and keeping flood waters back. It
repelled a submission that the execution of SSP without a
comprehensive assessment and evaluation of its environmental
impact and a decision regarding its acceptability would be in
violation of the rights of the affected people under Article 21 of the
Constitution of India stating that requisite environmental clearance
had been taken opining that the same had been granted on due
application of mind. It took into consideration the question of relief
and rehabilitation, consequent upon the displacement of people,
holding:
“151. The displacement of the people due to major river
valley projects has occurred in both developed and developing
countries. In the past, there was no definite policy for
rehabilitation of displaced persons associated with the river
valley projects in India. There were certain project-specific
programmes for implementation on a temporary basis. For the
land acquired, compensation under the provisions of the Land
Acquisition Act, 1894 used to be given to the project-affected
families. This payment in cash did not result in satisfactory
resettlement of the displaced families. Realising the difficulties
of displaced persons, the requirement of relief and
rehabilitation of PAFs in the case of Sardar Sarovar Project
was considered by the Narmada Water Disputes Tribunal and
the decision and final order of the Tribunal given in 1979
contains detailed directions in regard to acquisition of land and
properties, provision for land, house plots and civic amenities
for the resettlement and rehabilitation of the affected families.
The resettlement policy has thus emerged and developed
along with the Sardar Sarovar Project.”
This Court opined that where two views are permissible, the
court ordinarily would not sit in appeal over a policy decision
adopted by the government. Regarding displacement of people on
proposed project, it was held:
“…It is not fair that tribals and the people in undeveloped
villages should continue in the same condition without ever
enjoying the fruits of science and technology for better health
and have a higher quality of lifestyle. Should they not be
encouraged to seek greener pastures elsewhere, if they can
have access to it, either through their own efforts due to
information exchange or due to outside compulsions. It is with
this object in view that the R&R plans which are developed are
meant to ensure that those who move must be better off in the
new locations at government cost. In the present case, the
R&R packages of the States, specially of Gujarat, are such
that the living conditions of the oustees will be much better
than what they had in their tribal hamlets.”
As regards the question of necessity to balance the loss of
forest because of activities carried on therein and construction of a
dam, it was held:
“242. The loss of forest because of any activity is
undoubtedly harmful. Without going into the question as to
whether the loss of forest due to river valley project because of
submergence is negligible, compared to deforestation due to
other reasons like cutting of trees for fuel, it is true that large
dams cause submergence leading to loss of forest areas. But it
cannot be ignored and it is important to note that these large
dams also cause conversion of wasteland into agricultural land
and make the area greener. Large dams can also become
instruments in improving the environment, as has been the
case in western Rajasthan, which transformed into a green
area because of Indira Gandhi Canal which draws water from
Bhakra Nangal Dam. This project not only allows the farmers
to grow crops in deserts but also checks the spread of Thar
Desert in the adjoining areas of Punjab and Haryana.”
It is of some significance to note that this Court in Balco
Employees’ Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] in regard to the decision of this Court in Samatha v.
State of A.P. [(1997) 8 SCC 191], by drawing a necessary
distinction between an area which is covered by Fifth Schedule of
the Constitution and an area which is not, opined as under:
“71. While we have strong reservations with regard to the
correctness of the majority decision in Samatha case, which
has not only interpreted the provisions of the aforesaid Section
3(1) of the A.P. Scheduled Areas Land Transfer Regulation,
1959 but has also interpreted the provisions of the Fifth
Schedule of the Constitution, the said decision is not
applicable in the present case because the law applicable in
Madhya Pradesh is not similar or identical to the aforesaid
Regulation of Andhra Pradesh. Article 145(3) of the
Constitution provides that any substantial question of law as to
the interpretation of the provisions of the Constitution can only
be decided by a Bench of five Judges. In Samatha case, it is a
Bench of three Hon’ble Judges who by majority of 2:1,
interpreted the Fifth Schedule of the Constitution. However,
what is important to note here is, as already observed
hereinabove, that the provisions of the Madhya Pradesh Land
Revenue Code, 1959 and Section 165, in particular, are not in
pari materia with the aforesaid Section 3 of the Andhra
Pradesh Regulation.”
Furthermore, the cut-off date in terms of the 1975 Act was
1.01.1960. Any transaction which had taken place between 1960
and 1975 and thereafter had been declared invalid. Admittedly,
even after the provisions thereof having been given full effect, the members of the Scheduled Tribe had not been put in possession
of their own land for decades.
Furthermore, we have noticed hereinbefore that the members
of the Scheduled Tribe are educated and we can safely presume
that most of them are serving various institutions in the State of
Kerala and/ or in other parts of India.
Indisputably, the question of restoration of land should be
considered having regard to their exploitation and rendering them
homeless from the touchstone of Article 46 of the Constitution of
India. For the aforementioned purpose, however, it may be of
some interest to consider that the insistence of autonomy and the
view of a section of people that tribals should be allowed to remain
within their own habitat and not be allowed to mix with the outside
world would depend upon the type of Scheduled Tribe category in
question. Some of them are still living in jungle and are dependant
on the products thereof. Some of them, on the other hand, have
become a part of the mainstream. The difference between
Scheduled Tribes of North-East and in some cases the Islands of
Andaman and Nicobar, on the one hand, and of those who are on
the highlands and plains of the Southern regions must be borne in
mind.
We are satisfied that the legislature of Kerala kept in view the
necessity of protecting the interest of the small land holders who
were in possession and enjoyment of property which had belonged
to tribal community and at the same time ensured that the tribals
are not thrown out of their land and rendered homeless. Having
regard to the studies conducted by the State Government and as a
balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intra
vires.
In the counter-affidavit filed by the State, it is stated:
“…It is no doubt true that Act 31 of 1975 was integrated in the
light of the non-tribals depriving tribals of their land and the
tribals being exploited. However, over the years considering
the population of land ratio even the non-tribals occupying land
which was once in possession of the tribals stood to have their
livelihood seriously jeopardise by total implementation of Act
31 of 1975. Ultimately, the Government had to consider all the
aspects of the matter and the Government found that the
optimum solution would be to bring a new legislation. It is in
view of this that Act 12 of 1999 has been passed by the State
legislature…”
19.Mr. Iyer, learned counsel would contend that the State of Kerala is striving hard for making the lands available to the tribal people. The learned counsel contended that the State has approached the Forest Bench of this Court for this purpose. We are, however, not concerned therewith. Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law. We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of Scheduled Tribe. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months from date. EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT
20.Whether striking down of an enactment as unconstitutional
would result in automatic revival of an earlier Act which has been
repealed? The High Court wherefor, as noticed hereinbefore, has
struck down Section 22 of 1999 Act providing for repeal of 1975
Act. On the aforesaid premise it was held that the effect must be
given to the right accrued under the 1975 Act.
Sections 6(1) and 7 of the General Clauses Act, 1897, which
are relevant for this purpose, read as under :-
“6. Effect of repeal.
Where this Act, or any Central Act or Regulation made after
the commencement of this Act, repeals any enactment hitherto
made or hereafter to be made, then, unless a different
intention appears, the repeal shall not—
(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment incurred
in respect of any offence committed against any
enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy
in respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may
be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed as if the repealing
Act or Regulation had not been passed.
7. Revival of repealed enactments -
(1) In any (Central Act) or Regulations made after the
commencement of this Act, it shall be necessary, for the
purpose of reviving, either wholly or partially, any enactment
wholly or partially repealed, expressly to state that purpose.
This section applies also to all (Central Acts) made after the
third day of January, 1968 and to all Regulations made on or
after the fourteenth day of January, 1887.”
In our opinion, there exists a distinction between a statutory
rule and a Legislative Act. The Legislature did not want a vacuum to be created. The 1999 Act was enacted repealing the 1975 Act
only for certain purposes. Section 22(2) of the 1999 Act upheld
certain actions taken under the 1975 Act as if they had been taken
in terms thereof. The procedure for determining the rights and
obligations of the parties by the Revenue Officers, under both the
Acts, are more or less the same.
We may notice Sections 19 and 22 of 1999 Act, which are
relevant. They read :-
“19. Saving of other laws. – The provisions of this Act shall be
in addition to and not in derogation of any other law for the
time being in force regulating any of the matters dealt with in
this Act, except to the extent provided in this Act.”
“22. Repeal and saving.-
(1) The Kerala Scheduled Tribes (Restriction on Transfer of
Lands and Restoration of Alienated Lands) Act, 1975 (31
of 1975) is hereby repealed.
(2) Notwithstanding the repeal of the said Act, all orders
issued by the competent authority or the Revenue
Divisional Officer, so far as they are not inconsistent with
the provisions of this Act shall be deemed to have been
made under the corresponding provisions of this Act and
shall continue to be in force accordingly unless and until
superseded by anything done or any action taken under
this Act. Every proceedings pending before a Court on a
complaint under Section 14 of the said Act shall be
deemed as a proceeding under the corresponding
provisions of this Act and shall be continued
accordingly.”
It is, therefore, evident that only those laws which are in
derogation of the provisions of the 1999 Act would stand repealed.
We may in this connection notice certain decisions relied upon
by Mr. Krishnan.
A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC
928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an
old rule by a new rule. It, therefore, ceased to exist and did not
automatically get revived when new rule was held to be invalid.
We are, however, dealing with a Legislative Act, validity
whereof was determined in the light of constitutional provisions.
In B.N. Tiwari v. Union of India and others, [ [1965] 2 SCR
421 ], this Court was again dealing with a statutory rule. It was held
that the old rule did not revive opining :-
“When therefore this Court struck down the carry forward rule
as modified in 1955 that did not mean that the carry forward
rule of 1952 which had already ceased to exist, because the
Government of India itself cancelled it and had substituted a
modified rule in 1955 in its place, could revive.”
However, the legal position was made clear by a Three Judge
bench of this Court in West U.P. Sugar Mills v. State of U.P.,
[ (2002) 2 SCC 645 ] whereupon also the learned counsel had
placed reliance, stating:-
“18. A perusal of Section 20 shows that several provisions of
the Uttar Pradesh General Clauses Act have been made
applicable in relation to statutory instruments including the
statutory Rules issued under any Uttar Pradesh Act. However,
Section 6-C does not find place in sub-section (2) of Section 20 of the U.P. General Clauses Act. In the absence of
application of Section 6-C to the statutory instrument, including
the statutory rule, which is the case before us, the contention
of the respondents deserves to be rejected. Since Section 6-C
of the U.P. General Clauses Act has not been applied to the
statutory rule framed by the Government of Uttar Pradesh, the
substituted rule after it became inoperative, the old Rule 49
would not revive.”
The aforementioned observations were, thus, made having
regard to the fact that Section 6-C of the U.P. General Clauses Act
had not been applied to the statutory Rules, which reads as under
:-
“6-C. Repeal or expiration of law-making textual amendments
in other laws.—(1) Except as provided by sub-section (2),
where any Uttar Pradesh Act amends the text of any Uttar
Pradesh Act or Regulation by the express omission, insertion
or substitution of any matter, the amending enactment is
subsequently repealed, the repeal shall not affect the
continuance of any such amendment made by the enactment
so repealed and in operation at the time of such repeal.
(2) Where any such amendment of text is made by any
temporary Uttar Pradesh Act or by an Ordinance or by any law
made in exercise of the power of the State Legislature by the
President or other authority referred to in sub-clause (a) of
clause (1) of Article 357 of the Constitution, and such Act,
Ordinance or other law ceases to operate without being re-
enacted (with or without modifications) the amendment of text
made thereby shall also cease to operate.” However, the Bench opined:-
“15. It would have been a different case where a subsequent
law which modified the earlier law was held to be void. In such
a case, the earlier law shall be deemed to have never been
modified or repealed and, therefore, continued to be in force.
Where it is found that the legislature lacked competence to
enact a law, still amends the existing law and subsequently it is
found that the legislature or the authority was denuded of the
power to amend the existing law, in such a case the old law
would revive and continue. But it is not the case here.”
Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC
376] is a case where the statute was modified and a different view
was taken.
But the principle laid down therein has been held to be
inapplicable in Indian Express Newspapers v. Union of India,
[ (1985) 1 SCC 641 ]
“106. The rule in Mohd. Shaukat Hussain Khan v. State of
A.P. is inapplicable to these cases. In that case the
subsequent law which modified the earlier one and which was
held to be void was one which according to the Court could not
have been passed at all by the State Legislature. In such a
case the earlier law could be deemed to have never been
modified or repealed and would, therefore, continue to be in
force. It was strictly not a case of revival of an earlier law which
had been repealed or modified on the striking down of a later
law which purported to modify or repeal the earlier one. It was
a case where the earlier law had not been either modified or
repealed effectively.” Repeal of a statute, it is well known, is not a matter of mere
form but one of substance. It, however, depends upon the intention
of the legislature. If by reason of a subsequent statute, the
legislature intended to abrogate or wipe off the former enactment,
wholly or in part, then it would be a case of total or pro tanto
repeal. If the intention was merely to modify the former enactment
by engrafting an exception or granting an exemption, or by adding
conditions, or by restricting, intercepting or suspending its
operation, such modification would not amount to a repeal.
In Southern Petrochemical Industries (supra), the subsequent
Act did not contain the words “unless a different intention appears”.
It was held that the later Act was not different from the earlier Act.
This Court is required to assume that the Legislature did so
deliberately.
In this case, however, the repealing clause is clear and
unambiguous. We, therefore, cannot accept the submission of Mr.
Dayan Krishnan.
21.Classification between agricultural and non-agricultural land is a valid one. It is, however, accepted that all forest areas comprise of the agricultural land. The State has admittedly no legislative competence to enact a legislation in exercise of its power of Entry No. 49, List II of the Seventh Schedule of the Constitution of India in relation to non-agricultural land. Such a power has been noticed hereinbefore. It exists only in terms of Entry 6, List III of the Seventh Schedule of the Constitution of India. While enacting the 1999 Act, the State could not have deprived the persons who hold non-agricultural land, having enacted the 1975 Act and, thus, could not have repealed a portion thereof by raising the following contention: “…If in a given situation a tribal possess non-agricultural land that only indicates that though the person is a tribal by birth he has come a long way from the way of Scheduled Tribe and has acquired the trappings of non tribals and thereafter has come to own immovable property other than the agricultural land. The exploitation of the tribals has studied would indicate (sic) has always taken place by deprivation of the agricultural land of the tribals…” Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act. For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001 and 899 of 2001 are allowed in part to the extent mentioned above. In view of our judgment in Civil Appeal Nos. 104-105 of 2001 and 899 of 2001, no orders are called for in Civil Appeal No.7079 of 2001. No costs