Kumar Vs. P. Nalla Thampy Thera & ANR.  INSC 1255 (21 July 2009)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 104-105
of 2001 State of Kerala and another .... Appellants Versus Peoples Union for
Civil Liberties, Kerala State Unit and others .... Respondents WITH CIVIL
APPEAL NO. 899 OF 2001 Malayora Karshaka Federation .... Appellant Versus
Niyamavedi and others .... Respondents AND CIVIL APPEAL NO. 7079 OF 2001 M.
Mohan Kumar .... Appellant Versus P. Nalla Thampy Thera and another ....
Effect of a writ of or in the nature of mandamus issued by a High Court
directing implementation of an enactment vis-`-vis a subsequent 2 legislation
altering or modifying the right of the beneficiaries under the former Act,
inter alia, is the question involved in these appeals.
arise out of a judgment and order dated 24th August, 2000 passed by a Division
Bench of the High Court of Kerala at Ernakulam.
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
Act received the assent of the President of India. It was included in the Ninth
Schedule of the Constitution of India, being item No.150, by the Constitutional
40th Amendment Act. It was published in the Kerala Gazette Extraordinary on
14th November, 1975. However, only on 3 24th January, 1986 a Notification was
issued bringing the said Act into force with retrospective effect from 1st
UNDER THE SAID ACT
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
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
said Act was not implemented in letter and spirit, one Dr. Nallathampy Thera
filed a writ petition which was marked as O.P. No.8879 of 1988 praying inter
alia for issuance of a Writ of Mandamus compelling the State to implement the
provisions of the Act and directing the concerned authorities to deal with and
dispose of the applications filed therein. Before 4 the High Court the learned
Additional Advocate General appearing for the State submitted that :
steps would be taken for the disposal of the applications and that the Act
would be enforced in all its rigour."
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 of the
applications pending before them within 6 months from the said date.
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.
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
said conditions are as under:- "(i) The State shall ensure that all the
applications are disposed of within the extended time.
State shall immediately communicate copies of this order to the Revenue
Divisional Officers of all the Districts for compliance.
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.
State shall provide the necessary back up and support to the Revenue Divisional
Officers to complete the work within the extended time now granted.
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
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 6 large. The Revenue Divisional Officers of these Districts are
directed in particular to dispose of all the applications within the extended
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.
however, no actual restoration of land was effected.
application was filed by the writ petitioner on 1st March, 1996 complaining
about non-implementation of the said order.
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."
affidavits were filed by the Revenue Divisional Officers reporting progress in
the disposal of the applications made under the Act.
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.
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
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.
Revenue Divisional Officers will file statements before this court by 30.9.1996
reporting compliance with direction No.1"
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.
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.
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 9 extending the order to stay granted earlier. The
interim stay granted earlier is vacated.
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
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.
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 10 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.
also heard Dr. P. Nalla Thampy Thera.
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.
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.
they pray that in the interest of justice the State may be granted extension of
time to introduce the Bill in this session.
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.
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."
supplied) WRIT PROCEEDINGS Indisputably the Legislature of the State thereafter
enacted the Kerala Restriction on Transfer by and Restoration of Lands to the
Scheduled Tribes Act, 1999 (for short `the 1999 Act'), which inter alia deals
with transfer and alienation of agricultural lands.
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.
12 In the
aforesaid writ petitions counter-affidavits were filed on behalf of the Union
of India supporting the stand of the tribes.
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.
OF THE HIGH COURT The High Court, while acknowledging, the legislative intent
of the State of Kerala, opined that it was colourable in nature as by reason of
the provisions of the 1975 Act and the orders passed in favour of the members
of the Scheduled Tribes, a vested right accrued to the members of Scheduled
Tribes was destroyed by reason of the provisions of 1999 Act.
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.
in regard to violation of Article 19(1)(e) of the Constitution of 13 India was
determined on the premise that no sufficient material had been placed before
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.
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.
22 of the 1999 Act was held to be ultra vires Article 14 of the Constitution of
India, having regard to the accrued rights of the members of the Scheduled
Tribes in view of the issuance of the writ of mandamus issued, the High Court
directed :- 14 "In the light of our discussion as above, we declare the
proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the Kerala
Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act,
1999, Act 12 of 1999 as unconstitutional and void. We strike down the proviso
to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12 of 1999. We
direct the State and the Authorities under Act 31 of 1975 to implement the
orders for restoration passed under the Kerala Scheduled Tribes (Restriction of
Transfer of land and Restoration of Alienated Lands) Act, 1975, Act 31 of 1975
and restrain the State and the Authorities under Act 12 of 1999 from enforcing
the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12
APPEALS BEFORE US Civil Appeal Nos. 104-105 of 2003 have been filed by the
State of Kerala against the common judgment and order dated 24th August, 2000
passed by a Division Bench of the Kerala High Court in O.P. Nos. 25332 and 26499
of 1999 filed by Niyamavedi and Peoples Union for Civil Liberties, Kerala State
Unit striking down the proviso to Section 5(1), Section 5(2), Section 6 and
Section 22 of the 1999 Act.
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.
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,
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
members of the Scheduled Tribes had no fundamental or common law right to
obtain restoration of possession of their lands which had already been
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.
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
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 instead and place of
repayable amount of loan as provided for in the 1975 Act.
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.
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.
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].
any event, a declaration by a Superior Court that a subsequent statute is ultra
vires would not wipe off the earlier statute automatically.
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.
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.
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 19 retrospective
effect from 24th January, 1986, must be held to be ultra vires Article 14 of
the Constitution of India.
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 there from having regard to their constitutional
right of life as adumbrated in Article 21 of the Constitution of India.
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
Verghese, learned counsel appearing on behalf of respondent No.1 in Civil
Appeal No.899 of 2001 supplementing the arguments of Mr. Sachar urged:
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
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.
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.
the Union of India having supported the case of the tribals, there is no reason
as to why this Court should interfere with the impugned judgment.
21 v) The
1999 Act being not a validating statute, the impugned judgment is unassailable,
particularly having regard to the objective of 1975 Act vis-`-vis 1999 Act.
vi) It is
incorrect to contend that the State before enactment of 1999 Act consulted the
true representatives of the tribals.
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.
Act was enacted by the State in terms of Entry 6 of List III of Seventh
Schedule of the Constitution of India.
contains interpretation clauses defining the terms specified therein.
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.
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
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.
- For the purposes of this clause. - (i) "vilapanyam" means
hypothecation of crops on payment of consideration or otherwise;
"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."
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 23 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.
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."
Section 6 of the 1975 Act members of the Schedule Tribes became entitled to
restoration of possession of the properties, transfers which stood invalidated
by operation of Section 4 and Section 5 of the Act.
provided for applications to be made by the Tribals for restoration of
alienated lands to the Revenue Divisional Officer within the time prescribed
therefor. The Revenue Divisional Officer was to make enquiries and after 24
being satisfied with the application of the Act was to direct restoration of
possession to the applicant.
which is material for our purpose, inter alia, reads as under:- "6.
Reconveyance of property - (1) Whereby 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
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
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."
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.
also prescribed offences and provided for penalties etc.
22 contains the rule making power.
Act was published in the Kerala Gazette Extraordinary on 20th April, 1999. It
was given a retrospective effect and retroactive operation from 24th January,
has been defined in 2(b) to mean any agricultural land.
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 26
commencement of this Act shall be deemed to be invalid:
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.
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."
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, 27 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:
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)."
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.
amount determined by the competent authority under sub-section (1) shall be
final and shall not be called in question in any court.
amount payable under sub-section (1) shall be recoverable in such manner as may
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 there under,
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.
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 29 make the total
extent of the land equal to 40 Ares."
11 provides for constitution of Scheduled Tribe Rehabilitation and Welfare Fund
and utilization thereof.
21 provides for power to make Rules.
22 is the Repealing and Saving clause.
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.
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."
VALIDITY OF 1999 ACT
BACKDROP The validity of 1975 Act is not in question. It, having regard to its
inclusion in the Ninth Schedule of the Constitution of India by Constitution
40th Amendment Ac, 1976 read with Article 31B which precludes an attack to the
provisions of such an enactment on the ground that it violates any provisions
of Part III of the Constitution of India, the validity thereof was upheld by a
leaned Single Judge of the Kerala High Court in Bhavani v.
Kerala, [1989 (1) KLT (Short Note Case No.58) at 37].
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.
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 31 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 ].
decisions have been rendered on statutes which are not absolutely identical.
All of which are not in pari materia with the other.
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.
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 32 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."
not concerned with the constitutional validity of 1975 Act.
at an appropriate stage deal with the matter in regard to the effect thereof.
LEGISLATION We have noticed hereinbefore that the Division Bench of the High
Court has upheld the legislative competence of the Legislature of the State of
Kerala. We, therefore, really at pains to understand as to how the doctrine of
`Colourable Legislation' could be invoked by the learned Judge of the High
doctrine of `Colourable Legislation" is directly connected with the
legislative competence of the State. Whereas the 1975 Act was enacted 33 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."
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.
invoking the doctrine of `Colourable Legislation' the legislature must have
transgressed the limits of its constitutional power patently, manifestly and
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.
Gajapathi Narayan Deo v. The State of Orissa [(1954) 1 SCR 1], this Court held:
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."
R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and
Another [(1977) 4 SCC 98], this Court held as under:
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".
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.
Bearing in mind the quintessential aspects of the rival contentions, let us
stop and take stock.
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"
in the working of a statute are not merely an ancillary power but surely a
necessary obligation of a social welfare state. One potent prohibitory process
for this consummation is to penalize the trader by casting a no-fault or
absolute liability to "cough up" to the State the total 36
"unjust" takings snapped up and retained by him "by way of
tax" where tax is not so due from him, apart from other punitive
impositions to deter and to sober the merchants whose arts of dealing with
customers may include "many a little makes a mickle'. If these steps in
reasoning have the necessary nexus with the power to tax under Entry 54 List
II, it passes one's comprehension how the impugned legislation can be denounced
as exceeding legislative competence or as a "colourable device" or as
"supplementary, not complementary'."
Dharam Dutt and others v. Union of India, [(2004) 1 SCC 712]."
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:
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].
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 &
Assn. of India v. Union of India, SCC at p. 651). If the statute is
legislatively competent the enquiry into the motive which persuaded Parliament
or the State Legislature into passing the Act is irrelevant (Dharam Dutt v.
Union of India).
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
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 38 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
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.
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 39 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.
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
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.
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].
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.
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
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.
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.
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.
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.
also a trite law that the State is entitled to change its legislative policy
having regard to the ground realities and changing societal condition.
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
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
ASSENT It was held by the High Court that Presidential Assent was necessary and
the 1999 Act was enacted to by-pass the mandatory requirement of the
President's Assent. In determining the said issue, it again ought to have posed
unto itself the right question, viz., whether the Presidential Assent was
necessary for enacting a statute which came within the purview of List II of 43
the Seventh Schedule of the Constitution of India. The answer thereto must be
rendered in negative.
Act dealt with both agricultural and non-agricultural lands.
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
furthermore well-known that Article 254 of the Constitution of India would be
attracted only in a case where two statutes are enacted under 44 the Concurrent
List, viz., one by the State Legislature and the other by the Parliament of
India, and not in any other case.
ISSUANCE OF A WRIT OF MANDAMUS Before adverting to the said question, we may
notice the background facts leading to the issuance of a writ of mandamus.
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.
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.
State had taken extension of time by an order dated 13th August, 1996, a
learned Single Judge, inter alia, directed the Revenue 45 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.
appeal was preferred there against and an interim order of stay was passed on
11th October, 1996. The matter was referred to a Full Bench.
noticed here to before the order dated 25th November, 1998.
also noticed the order of the Full Bench dated 6th January, 1999.
Court was, thus, aware of the impending legislation. The extension of time was
subject to a new legislation.
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.
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.
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 47
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
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 48
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 49 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
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."
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.
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.
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.
to implement the provisions of the Act by itself did not confer 51 any right
upon the parties. The lis has to be adjudicated upon. It did not attain
finality in that sense of the term.
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.
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.
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 52 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."
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.
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
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.
if, as has been contended by the 53 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."
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."
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.
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."
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.
was implemented both in respect of those who had two acres of land and those
who had more.
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.
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).
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.
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.
therefore, are of the opinion that Madan Mohan Pathak (supra) has no
application to the present cases.
RIGHT VIS-@-VIS ARTICLE 14 A vested right has been defined in P. Ramanatha
Aiyar's Advanced Law Lexicon, 3rd edition, page 4888, in the following terms:
rights. Property rights.
expression `vested right' means an absolute or indefeasible right. It is an
immediate fixed right in present or future enjoyment in respect of property.
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."
Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO
[(2007) 5 SCC 447], this Court held:
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.
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."
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 where for 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.
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 58 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 there 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 here to before. 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 there for.
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.
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 59 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.
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.
however, we advert thereto, we would like to make some general observations.
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 60 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
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.
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:
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 61 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.
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
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 62 outside the pale of the provisions of the Act.
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."
Lingappa (supra), this Court held:
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:
Transfer of property other than agricultural land; registration of deeds and
Contracts, including partnership, agency, contracts of carriage, and other
special forms of contracts, but not including contracts relating to
"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 63 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
apart, members of Scheduled Tribes i.e. tribals who are mostly aboriginals
constitute a distinct class who need a special protection of the State.
Further, the question as to how far and by what stages such laws are to be
implemented involves a matter of policy and therefore beyond the domain of the
courts. Secondly, the Act no doubt makes a distinction between a non-tribal
transferee who had diverted the lands obtained by him under a transfer from a
tribal during the period from April 1, 1957 to July 6, 1974 and had put such
lands to non-agricultural purpose, and other non-tribal transferees who got
into possession under transfers effected by tribals during the same period but
continued to use the lands for agricultural purposes. There is no question of
any differential treatment between two classes of persons equally situate. When
a part of the land is diverted to a non-agricultural purpose viz. the
construction of a dwelling house or the setting up of an industry, the State
Legislature obviously could not have made a law for annulment of transfer of
such lands by tribals under Entry 18 in List II as the lands having been
diverted to non- 64 agricultural purposes ceased to be agricultural lands. In
the case of such non-agricultural land, if the State Legislature made such a
law it would not be effective unless it was reserved for the assent of the
President and received such assent."
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
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
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) 65 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:
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".
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 66 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."
in K.T. Huchegowda v. Dy. Commissioner [(1994) 3 SCC 536], this Court held:
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
67 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.
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 68
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.
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."
Papaiah v. State of Karnataka (1996) 10 SCC 533] The statutory provisions,
therefore, must be interpreted in the light of the constitutional provisions.
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 69 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.
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.
FOR AMENDMENT This brings us to the question as to whether the 1999 Act is
invalid inter alia because the State was apprehensive that the assignees may
offer 70 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
were also held with the present occupants of the alienated tribal lands.
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 71 unanimously
passed by the Assembly. The Bill became an Act (Act 12 of 1999) on
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.
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.
ground realities are presumed to be known to the State and if anybody raises a
contrary contention, it would be for him to bring on record sufficient
materials to show so as to enable the court to arrive at a conclusion that the
State's action was arbitrary.
72 It is
furthermore a well-settled principle of law that the superior court in exercise
of their power of judicial review of legislation would not ordinarily determine
the merit of the legislation by entering into a broad question as to whether
materials placed before the Legislature were sufficient for bringing out the
legislation in question or not.
inquisitorial inquiry on the part of the court, in our opinion, is beyond the
province of the court.
NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT
Act, in our opinion, is more beneficial in nature so far as the people of the
State of Kerala are concerned.
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.
heretobelow may notice a comparative chart of the salient provisions of the two
- Came into force on Act 12/99 came into force 01.01.1982 Pages 135 - 142 on
20.04.1999 Page Nos.161 - 169, but deemed to have 73 come into force on
24.01.1986 2(b) "Immovable property" defined 2(4) Section as
including standing crops and trees. Act applies to such "Land"
defined means property agricultural land - Act applies to such land.
Transfer of any immovable 4. Transfer of any land (i.e.
by a tribal to a non Agricultural land) by tribal tribal without previous
consent to non-tribal after of competent authority after commencement of Act
commencement of the Act shall without previous consent of be void. competent
authority shall be void.
Transfer of immovable property 5. (1) Transfer of land by tribal by Tribal to
non tribal after to non tribal after 01.01.1960 shall be deemed to 01.01.1960
and before Act be invalid shall be deemed to be invalid.
But this will not invalidate transfers where the extent of land transferred
does not exceed two hectares (2) Notwithstanding (1) above, where the land
transferred is used for agriculture purpose the transferor may retain the transferred
land or 2 Hectres to be demarcated by the RDO.
Tribal whose transfer is 6 Styled as allotment of land.
under Sections 4 and 5 shall be entitled to restoration 1) Tribal who has
effected of possession of the property. transfer of land between 74 Sub Section
(5) provide for a 01.01.1960 and 2.4.1986 and remedy of appeal to the aggrieved
persons to the a) who has filed an competent authority. application for
restoration u/s. 6 of Act 31 of 1975 b) but whose possession has not been
which transfer has been validated by the provisions of Sec.5 above shall be
entitled to allotment of equal extent of land by Government to the extent of 40
may take Suo-moto action Proviso :
restoration Where the extent of land to be so allotted is less than 40 Ares
(One Acre) Government will make further allotment to make the total extent 40
possession is restored to 7. Where a transfer of land is tribal under Section 6
he shall invalidated U/s.4 and 5 of pay to the quantum transferee the Tribal is
entitled to the consideration received as restoration of such land.
value of the improvement effected by the transferee as determined by the
Government may advance loans Sub-section 2 to 4 prescribe to tribal for;
payment of the the procedure for restoration amount u/s.11 to be repaid in with
a right of appeal under half yearly or annual instalment sub section 6 (Akin to
and to be recovered as an arrear section 6 of Act 31 of 75) 75 of land revenue
if kept in arrears.
Similar to section 11 of Act 31 of 75
Government shall provide grant to eligible tribal/liable to pay the amount
under Section 8.
Government shall assign land to landless tribal families not exceeding 40 Ares
in extent in his own district within two years or extended time.
any family owns land below 40 Ares I extent Govt.
such extent of land as is necessary to make up 40 Ares.
Schedule Tribe rehabilitation and Welfare Fund to be constituted for
construction of houses for tribal families and for other welfare measures.
Provision for legal assistance 22 Repeal of Act 31 of 1975 with usual saving
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
here to before 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.
counter-affidavit filed by the State, it is stated:
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 overall 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 77
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."
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.
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
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 78 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.
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.
Act, therefore, if given a holistic view, is more beneficial to the members of
the Scheduled Tribe than the 1975 Act. If the State 79 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.
21 ISSUE Article 21 deals with right to life and liberty. Would it bring within
its umbrage a right of tribals to be rehabilitated in their own habitat is the
question? If the answer is to be rendered in the affirmative, then, for no
reason whatsoever even an inch of land belonging to a member of Scheduled Tribe
can ever be acquired. Furthermore, a distinction must be borne between a right
of rehabilitation required to be provided when the land of the members of the
Scheduled Tribe are acquired vis-`-vis a prohibition imposed upon the State
from doing so at all. The question must be considered from another angle. The
Scheduled Tribes are not in an agency area or Scheduled Area. The literacy rate
of the tribals of Kerala is 57% which is much more than the national average.
Most of the tribal children have elementary education. In the schools and
colleges of Kerala, Malayalam, Tamil or English is taught. It has been noticed
by various writers that the tribal teachers have not been interacting with the
students in 80 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:
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
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).
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.
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 whatever they want? Are they given a free space to think, act
and establish (as they used to in days of yore?)"
notice that in Indigenous and Tribal Populations Convention, 1957 which has
been ratified by 27 countries including India contained following clauses:
11 The right of ownership, collective or individual, of the members of the
populations concerned over the lands which these populations traditionally
occupy shall be recognised.
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.
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.
Persons thus removed shall be fully compensated for any resulting loss or
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
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."
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.
the United Nations adopted a declaration on the rights of indigenous peoples in
September, 2007. Articles 3 to 5 thereof read as under:
3 Indigenous peoples have the right to self- determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.
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
84 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
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 85 result whereof the residence of
tribals in various States, viz., Madhya Pradesh, Gujarat, Maharashtra and Rajasthan
were affected, opined as under:
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."
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.
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."
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."
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:
is not fair that tribals and the people in undeveloped villages should continue
in the same 88 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
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:
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 89 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:
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 90
Section 165, in particular, are not in pari materia with the aforesaid Section
3 of the Andhra Pradesh Regulation."
the cut-off date in terms of the 1975 Act was 1.01.1960.
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.
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.
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 91 Scheduled Tribe category in question. Some of them are still living
in jungle and are dependent 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.
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.
counter-affidavit filed by the State, it is stated:
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.
over the years considering the 92 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
OF THE LAND Mr. Iyer, learned counsel would contend that the State of Kerala is
striving hard for making the lands available to the tribal people. The learned
counsel contended that the State has approached the Forest Bench of this Court
for this purpose. We are, however, not concerned therewith. Keeping in view the
promises made by the 1999 Act, it is obligatory on the part of the State to
provide the land meant for the members of the Scheduled Tribe. If they do not
have sufficient land, they may have to take recourse to the acquisition
proceedings but we are clear in our mind that the State in all situations will
fulfill its legislative promise failing which the persons aggrieved would be
entitled to take recourse to such remedies which are available to them in law.
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.
INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT
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
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;
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.
Revival of repealed enactments - 95 (1) In any (Central Act) or Regulations
made after the commencement of this Act, it shall be necessary, for the purpose
of reviving, either wholly or partially, any enactment wholly or partially
repealed, expressly to state that purpose.
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,
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.
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.
notice Sections 19 and 22 of 1999 Act, which are relevant.
:- "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."
Repeal and saving.- 96 (1) The Kerala Scheduled Tribes (Restriction on Transfer
of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) is hereby
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."
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.
Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928 =  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.
are, however, dealing with a Legislative Act, validity whereof was determined
in the light of constitutional provisions.
Tiwari v. Union of India and others, [  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
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 98 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
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.
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."
the Bench opined:- 99 "15. It would have been a different case where a
subsequent law which modified the earlier law was held to be void. In such a
case, the earlier law shall be deemed to have never been modified or repealed
and, therefore, continued to be in force.
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."
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.
principle laid down therein has been held to be inapplicable in Indian Express
Newspapers v. Union of India, [ (1985) 1 SCC 641 ] "106. The rule in Mohd.
Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that
case the subsequent law which modified the earlier one and which was held to be
void was one which according to the Court could not have been passed at all by
the State Legislature. In such a case the earlier law could be deemed to have
never been modified or repealed and would, therefore, continue to be in force.
It was strictly not a case of revival of an earlier law which had been repealed
or modified on the striking down of a later law which purported to modify or
repeal the earlier 100 one. It was a case where the earlier law had not been
either modified or repealed effectively."
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.
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.
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.
Court is required to assume that the Legislature did so deliberately.
In this case,
however, the repealing clause is clear and unambiguous.
therefore, cannot accept the submission of Mr. Dayan Krishnan.
AND NON-AGRICULTURAL LAND 101 Classification between agricultural and
non-agricultural land is a valid one. It is, however, accepted that all forest
areas comprise of the agricultural land. The State has admittedly no
legislative competence to enact a legislation in exercise of its power of Entry
No. 49, List II of the Seventh Schedule of the Constitution of India in
relation to non-agricultural land.
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:
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
have made an enactment, the legislative intent is clear and unambiguous, viz.,
such exploitation was possible also in so far as non- agricultural lands are
concerned. Such a right conferred on the owners of 102 the non-agricultural
land, therefore, could not have taken away without payment of compensation. We,
therefore, are of the opinion that to that extent the 1975 Act would continue
to be applied. The State has no legislative competence to repeal that portion
of the 1975 Act.
reasons aforesaid, Civil Appeal Nos. 104-105 of 2001 and 899 of 2001 are
allowed in part to the extent mentioned above.
of our judgment in Civil Appeal Nos. 104-105 of 2001 and 899 of 2001, no orders
are called for in Civil Appeal No.7079 of 2001. No costs
....................................J. [ S.B. Sinha ]
..................................J. [ Dr. Mukundakam Sharma ]