Lingappa Pochanna Appelwar & Ors Vs.
State of Maharashtra & ANR [1984] INSC 227 (4 December 1984)
SEN, A.P. (J) SEN, A.P. (J) REDDY, O.
CHINNAPPA (J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 389 1985 SCR (2) 224 1985
SCC (1) 479 1984 SCALE (2)1022
CITATOR INFO :
RF 1986 SC1571 (83) D 1988 SC1626 (15) R 1992
SC 195 (6A)
ACT:
Constitution of India 1950, Articles 14, 19
(1) (f ), 31, 46 and Entry 18 List II Seventh Schedule: Maharashtra Restoration
of Lands to Scheduled Tribes Act 1974, Sections 2 (1) (i), 3, 4 and 9A & Advocates
Act 1961, Section 30.
State enactment providing for annulment of
transfers of agricultural lands by tribals to non-tribals and for restoration
of possession-State legislature-Competency to enact-Enactment whether valid and
constitutional-Prescribing a date for annulment of transfers-Whether arbitrary
and void-Bar on advocates appearing in proceedings under the Act-Whether valid
and reasonable.
Statutory Interpretation-Distributive
justice-what is- Law to be used as instrument of distributive justice-
Emphasised.
HEADNOTE:
Legislation was undertaken by different
States placing restrictions on transfer of lands by members of Scheduled Castes
and Tribes in pursuance of the declared policy of the State of safeguarding,
protecting and improving the conditions of weaker sections of the society by
providing that any such transfer except in terms of the provisions of the
different Acts shall be null and void.
The State Government of Maharashtra by a
Government Resolution appointed a Committee to inquire into and report on how
far the provisions of the Maharashtra Land Revenue Code, 1966, the Bombay
Tenancy & Agricultural Lands (Vidharbha Region) Act, 1958 the Hyderabad
Tenancy and Agricultural Lands Act, 1950 and the Bombay Tenancy and
Agricultural Lands Act, 1948 had been effective in giving protection to persons
belonging to Scheduled Tribes and to suggest suitable amendments, if any of the
existing provisions were found to be inadequate. The Committee submitted its
Report, and pointed out that inspite of section 36 (2) Maharashtra Land Revenue
Code 1966, and analogous provisions in the earlier Land Revenue Laws, these
were not found sufficient, and persons belonging to the Scheduled Tribes
because of their poverty, lack of education and general backwardness had been
exploited by various persons and deprived of their lands, and recommended that
pro. vision should be made for restoring to persons belonging to Scheduled Tribes
the lands which had been duly transferred to other persons. After considering
the aforesaid recommendation, the State Government of Maharashtra enacted 225
the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. This Act
was included in the Ninth Schedule of the Constitution.
The Appellant purchased agricultural lands
from the father of Respondent No. 2 by a registered sale deed with the prior
permission of the Collector as required by Section 47 of the Hyderabad Tenancy
and Agricultural Lands Act. 1950 and was placed in possession thereof. The
Sub-Divisional Officer finding that the vendor was a gond, and a tribal within
the meaning of section 2 (1) (j) of the Act initiated suo motu proceedings
under section 3 (1) of the Act for restoration of the lands to respondent No.
2, and after enquiry finding that respondent No. 2 had given an undertaking in
form III that he required the land for his personal cultivation and was willing
to deposit the amount fixed by him for payment of the appellant, directed under
section 3 (1) (ii) of the Act that possession should be restored to respondent
No 2.
The appellant preferred an appeal under
section 6 to the Land Revenue Tribunal, which upheld the order passed by the
Sub-Divisional Officer. The Writ Petition of the appellant, was dismissed in
limine and this order was confirmed by a Division Bench of the High Court.
In the Appeals to this Court, it was
contended on behalf of the appellants: (1) that sections 3 (1) and 4 of the Act
which provide for annulment of transfers of land by tribals to non-tribals
effected during the period from April 1, 1957 to July 6, 1974 and for
restoration of possession to them was beyond the legislative competence of the
State under Entry 18 in List 2 of the Seventh Schedule, (2) sections 3 (1) and
4 are inconsistent with, take away and abridge the fundamental rights conferred
by Articles 14, 19 (1) (f) and 31, (3) The adoption of the date April 1, 1957
as the date from which there was to be an annulment of transfer under sections
3 (1) and 4 was arbitrary and void as contravening Article 14, (4) The Act was
violative of Article 14 because it treats equals unequally: in that members of
Scheduled Castes who also constitute the weaker section of the society have
been discriminated against and there was preferential treatment afforded to
non-tribal transferees who had diverted the lands purchased by them to
non-agricultural purposes. (5) The definition of non-tribal transferee
contained in section 2 (1) (i) offends Article 14 as it permitted an assignee
of non-tribal transferee effected prior to March 15, 1971 to escape the
consequence of annulment under section 3 (1) and 4, (6) Sections 9A was
constitutionally void as it affected the fundamental right of an advocate
enrolled by the State Bar Council to carry on his profession guaranteed by
Article 19 (1) (g), and the right of the appellants who are non-tribals by
being prevented to be represented by a legal practitioner of their choice.
Dismissing the Appeals.
HELD: I (i) our Constitution permits and even
directs the State to administer what may b- termed 'distributive justice'. The
concept of distributive justice in the sphere of law-making conntes, the
removal of economic inequalities and rectifying the injustice resulting from
dealings or transactions between 226 unequals in society. Law should be used as
an instrument of distributive justice to A achieve a fair division of wealth
among the members of society based upon the principle: 'From each according to
his capacity, to each according to his needs'. Distributive justice comprehends
more than achieving, lessening of inequalities by differential taxation, giving
debt relief or distribution of property owned by one to many who have none by
imposing ceiling on holdings, both agricultural and urban, or by direct
regulation of contractual transactions by forbidding certain transactions and,
perhaps, by requiring others. l239F-H;
240A] (ii) The present legislation is a
typical illustration of the concept of distributive justice. It is nothing but
a remedial measure in keeping with the policy of the State for rendering social
and economic justice to the weaker sections of the society. It is intended and
meant as an instrument for alleviating opperession, redressing bargaining imbalance,
cancelling unfair advantages, and generally overseeing and ensuring probity and
fair dealings.'[239E; 241E; 242C] It seeks to reopen transaction between
parties having unequal bargaining power resulting in transfer of title from own
to another due to force of circumstances and also seeks to restitute the
parties to their original position.
[242C] Manchegowda & Ors. v. State of
Karnataka & ors. [l984] 3 SCC 30I, Fateh Chand Himmatlal v. State of
Maharashtra [1977] 2 SCR 828 & Pathumma ate of Kerela [1978] 2 S.C.R.
537, referred to.
2 (i) The Act strikes at transactions
relating to agricultural lands effected between members of Scheduled Tribes who
admittedly belong to the weaker sections of the society and persons not
belonging to Scheduled Tribes.
Experience in the past showed that members of
the Scheduled Tribes had been exploited due to their ignorance and poverty by
members belonging to the affluent and powerful sections of the society to
obtain transfer of their lands by way of sale, gift, mortagage, exchange etc.
for a nominal consideration or for no consideration at all rendering them
practically landless. The Sub Divisional Officers and Collectors due to their
multifarious duties accorded sanction to such transfers without application of mind
to the prevalent circumstances. The Committee appointed by the State Government
pointed out in its Report that the provisions of the Maharashtra Land Revenue
Code 1966 and the relevant tenancy Laws that were in existence had not been
effective in giving protection to persons belonging to the Scheduled Tribes and
recommended that provisions should be made for restoring to members of
Scheduled Tribes the lands which had been duly transferred by them to other
persons.
The Legislature therefore stepped in and
reopened such transactions by directing that lands be restored to the tribal
transferers free from all encumbrances on payment by them to the non-tribal
transferees the amounts determined by the Collector under Sub-section (4) of s.
3. [246E-H: 247A- C] (ii) The restoration of possession by sections 3 (1) and 4
does not involve any deprivation of the property in the sense that there is
unsettling of title without consideration. It makes detailed provisions setting
out the conditions subject to which a transfer by a tribal of his agricultural
lands to a non-tribal 227 may be nullified and possession restored. The object
of the legislation is restitution of the property to the persons to whom the
lands originally belonged, A subject to the adjustment of equities between the
parties. [247D-F] (iii) The 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. 1217G] R (iv) The words 'other than agricultural land' in Entry
6 and the words 'but not including contracts relating to agricultural land in
Entry 7 in List III have the effect of delimiting the legislative power of the
union to make a law with respect to contracts in relation thereto. The power of
the State Legislature to make a law with respect to transfer and alienation of
agricultural land under Entry 18 in list II carries with it not only a power to
make a law placing restrictions on transfers and alienations of such lands
including a prohibition thereof, but also the power to make a law to reopen
such transfers and alienations. Such a law relatable to Entry 18 in list II of
the Seventh Schedule was clearly within the legislative competence of the State
Legislature. [248B-D]
3. The Act having been placed in the Ninth
Schedule of the Constitution the submission that sections 3(1) and 4 are
inconsistent with, or take away or abridge any of the fundamental rights
conferred by Art. 14, Art. l9(1)(f) or Art. 31 of the Constitution must be
rejected at the very threshold because it is protected under Art. 31B. [248F]
4. (i) It is permissible for the legislature
to make a classification on the basis of time for a law to operate.
What is necessary is that there must be a
reasonable nexus between the basis of classification as to time and the object
sought to be achieved. [248H] (ii) The Act adopts April 1,1957 for
nullification of transfers made by tribals to non-tribals under sections 3(1)
and 4 because that was the 'tillers' day. for purposes of the Bombay Tenancy
& Agricultural Lands Act, 1948, on the basis of which the non-tribal
transferees could apply to the Tenancy Court for purchase of their holdings on
the ground that they were in cultivating position thereof. There was therefore
reasonable nexus for the fixation of such date and the object sought to be
achieved and the impugned Act is not violative of Art. 14. [249A-B]
5. (i) The appellants who were transferees
from members of scheduled Tribes cannot possibly plead the cause of members of
Scheduled Castes Members of Scheduled Tribes i.e.
tribals who are mostly aboriginals constitute
a distinct class who need a special protection of the State. [249E] (ii) 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 nonagricultural
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 228 the lands having been diverted to non-agricultural purposes ceased to
be A 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. [249G-H; 250A]
6. The expression 'non-tribal transferee' as
defined in section 2 (1) (i) is an inclusive one. It is not correct to say that
it permits an assignee of a non-tribal transferee effected prior to March
15,1971 to escape the consequences of annulment under sections 3(1) and 4 of
the Act. The Legislature appointed March IS, 1971 with a view to give
retrospective effect to the provisions of Sections 3(1) and 4 of the Act as
that was the dale on which the Government constituted the Committee to inquire
into and report to the State Government on how far the provisions of the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy laws had been
effective in giving protection to persons belonging to Scheduled Tribes. The
provisos to sections 3(1) and 4 are meant to mitigate the hardship which
otherwise would because to a non-tribal transferee who would again be rendered
landless if he were required to restore the entire land under sections 3(1) and
4 of the Act. [250B-D;; G]
7. (i) A person enrolled as an advocate under
the Advocate's Act, 1961 is not ipso facto entitled to a right of audience in
all Courts unless section 30 of the Advocates Act, 1961 is first brought into
force. The right of an Advocate brought on the rolls to practice is, just what
is conferred on him by sections 14(1)(a), (b) and (c) of the Bar Councils Act
1926. Section 9A is not therefore an unconstitutional restriction on advocate's
right to practice their profession. [251G-H; 252A] (ii) Apart from the
provisions of Art. 22(1) of the Constitution, by which an accused who is
arrested and detained in custody is entitled to consult and be defended by a
legal practitioner of his choice, no litigant has a fundamental right to be
represented by a lawyer in any Court, In all other matters i.e. in suits or
other proceedings in which the accused is not arrested and detained on a
criminal charge, the litigant has no fundamental right to be represented by a
legal practitioner . [252B-C] (iii) The legislature felt that for
implementation of the legislation. it would not subserve the public interest if
lawyers were allowed to appear, plead or act on behalf of the non-tribal
transferees. A tribal and a non-tribal are unequally placed and non-tribal
transferee being a person belonging to the more affluent class, would
unnecessarily protract the proceedings before the Collector under sections 3(1)
and 4 by raising all kinds of pleas calculated to delay or defeat the right of
the tribal for restoration of his lands. The proceedings be. fore the Collector
have to be completed with sufficient despatch and the transferred lands
restored to a tribal without any of the law's delays. [252D- E]
CIVIL, APPELLATE JURISDICTION : Civil Appeal
No. 4384 of 1984.
From the Judgment and order dated 27.6.84 of
the Bombay High Court in L.P.A No. 147 of 84 in W.P. No. 1624 of 1977.
AND Civil appeal No. 3288 of 1984.
229 (From the judgment & order dated
21.6.84 of the Bombay High Court in L.P.A. No. 135 of 1984.) V.B. Joshi for the
appellant in both the appeals.
V.S. Desai and M.N. Shroff for the
respondents in both the appeals.
The Judgment of the Court was delivered by B
SEN, J. These two appeals by special leave are directed against the judgments
and orders of a Division Bench of the Nagpur Bench of the Bombay High Court
dated June 21 and 27, 1984 and raise a common question relating to the
constitutional validity of ss 3 and 4 of the Maharashtra Restoration of Lands
to Scheduled Tribes Act, 1974. The question is whether ss.3 and 4 of the
impugned Act which provided for annulment of transfers made by members of
Scheduled Tribes and for restoration of lands to them on certain conditions
were ultra vires the State Legislature as being beyond the purview of Entry 18
of List II of the Seventh Schedule or were otherwise violative of Art. 14, Art.
19(1)(f) and Art. 31 of the Constitution.
Facts in these two appeals are more or less
similar. In Civil Appeal No. 4384 of 1984, the appellant Lingappa Pochanna
Appelwar had by a registered sale-deed dated November 30, 1965 purchased
agricultural land bearing Survey No. 27 having an area of 20 acres 39 gunthas
from Raju Meshram, father of respondent No. 2 Sonerao Raju Meyhram who being a
gond was a tribal within the meaning of s.2(1)(j) of the Act for a
consideration of Rs. 1300 with the prior permission of the Collector as
required by s.47 of the Hyderabad Tenancy & Agricultural Lands Act, 1950
and was placed in possession thereof. Suo motu proceedings were started by the
Sub-Divisional Officer, Rajura in District Chandrapur under s.3(1) of the Act
for restoration of the lands to respondent No. 2. The Sub-Divisional officer
initiated an inquiry, summoned the parties and recorded their statements. By
his order dated February 19, 1977 he held that it was admitted by the appellant
that his transferor Raju Meshram was a gond and therefore a tribal under
s.2(1)(j) of the Act, that no improvements had been made by him on the land and
that there were no encumbrances thereon. He therefore held that the case falls
within s.3(1) of the Act and recorded that respondent No. 2 Sonerao Raju
Meshram, the tribal, had given an undertaking in Form Ill that he required the
land for his personal cultivation and was willing to deposit the amount fixed
by him for 230 payment to the appellant. He accordingly directed in exercise of
the powers vested in him under s.3(1)(ii) of the Act that possession of an area
of 19 acres 19 gunthas out of Survey No. 27 be taken from the appellant and
restored to respondent No. 2 on payment of Rs. 461.76p. towards the
consideration equal to 48 times of the assessment as required by s.3(4)(b)
after setting apart a part of the remaining portion of 1 acre 20 gunthas
covered by a dwelling house. The appellant preferred an appeal under s.6 of the
Act to the Maharashtra Land Revenue Tribunal, Nagpur but a Single Member of the
Tribunal by his order dated August 5, 1977 upheld the order passed by the
Sub-Divisional officer.
The appellant than filed a writ petition
before the Nagpur Bench of the Bombay High Court assailing the orders of the
Maharashtra Land Revenue Tribunal as well as that of the Sub-Divisional
officer. A learned Single Judge by his order dated March 13, 1984 dismissed the
writ petition in limine and a Letters Patent Appeal preferred by the appellant
was also dismissed by a Division Bench by its order dated June 27, 1984. Facts
in Civil Appeal No. 3288 of 1984 are more or less similar. We must here mention
that the High Court in Sadashiv Ragho Kolambe & ors. v. State of
Maharashtra & Anr.
being Special Civil Application No. 1064/76
decided on June 20, 1976 upheld the constitutional validity of the Act and
Civil Appeal No. 982/76 is pending before this Court.
The impugned Act is supplemental or
incidental to the Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws viz. the Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act,
1958 in relation to the Vidarbha region of the State, the Hyderabad Tenancy
& Agricultural Lands Act, 1950 in relation to the Hyderabad region of the
State and the Bombay Tenancy & Agricultural Lands Act, 1948 in relation to
the rest of the State. Similar measures have been undertaken by different
States placing restrictions on transfer of lands by members of Scheduled Castes
and Tribes for the implementation of the Directive Principles of States Policy
enshrined in Art. 46 of the Constitution which enjoins that "the State
shall promote with special care the educational and economic interests of the
weaker sections of the people and in particular of the Scheduled Castes and
Tribes and shall protect them from social injustice and all forms of
exploitation" Although there is legislation undertaken by different States
231 placing restrictions on transfer of lands by members of Scheduled Castes
and Tribes in pursuance of the declared policy of the State of safeguarding,
protecting and improving the conditions or weaker sections of the society by
providing that any such transfer except in terms of the provisions of the
different Acts shall be null and void, the State of Maharashtra has gone a step
further for annulment of such transfers by members of Scheduled Tribes and for
restoration of lands to them by enacting the Maharashtra Restroration of Lands
to Scheduled Tribes Act, 1974. The impugned Act has been placed in the Ninth
Schedule of the Constitution and is thereof immune under Art. 31B from any
challenge on the ground that it is inconsistent with, or takes away, or
abridges any of the rights conferred by Art.
14, Art 19 or Art. 31 of the Constitution.
Before dealing with the contention raised, it
would be convenient to deal with the legislative history. By a Government
Resolution in the Revenue & Forest Department, the State Government
appointed a Committee to inquire into and report the State Government inter
alia on how for the provisions of the Maharashtra Land Revenue Code, 1966 and
the relevant tenancy law had been effective in giving protection to persons
belonging to Scheduled Tribes and to suggest among other things suitable
amendments therein if any of the existing provisions were found to be
inadequate.
The said Committee by its Report to the
Government dated April 7, 1972 drew the attention of the State Government to
the difficulties experienced in the administration of the provision contained
in s 73 of the Bombay Land Revenue Code, 1897 (in Western Maharashtra) and the
analogous provisions in the Madhya Pradesh Land Revenue Code, 1954 (in
Vidarbha) and the Hyderabad Land Revenue Act, 1317F (in Marathawada) which are
now replaced by s.36 of the Maharashtra Land Revenue Code, 1966. According to
sub-s.(2) of s.36, occupancies of persons belonging to such Scheduled Tribes as
had been notified by Government, and in the parts of the State notified by
Government, could not be transferred except with the previous sanction of the
Collector. The intention of the Legislature in making this provision was that
this weaker section of the community should not become landless and that
persons belonging to the amount and powerful sections should not be allowed to
take undue advantage of the situation. However, inspite of this provision and
provisions of the earlier Land Revenue laws, these were not found sufficient
and persons belonging to the Scheduled Tribes because of their poverty, lack of
education and general backwardness had been exploited by 232 various persons
who could take advantage of the sad plight of these poor persons depriving them
of their lands. The said Committee accordingly recommended inter alia that
provision should be made for restoring to persons belonging to Scheduled Tribes
the lands which had been duly transferred to other persons. After considering
the aforesaid recommendation of the said Committee, the State Government were
of the opinion that steps should be taken forthwith for restoring certain lands
to persons belonging to Scheduled Tribes.
Broadly stated, such illegal transfers fell
into two categories, namely: (1) occupancy holdings had been transferred to
persons not belonging to Scheduled Tribes by the Collector or the Sub
Divisional officer on the ground that occupancy holdings were allowed to be
transferred to persons not belonging to Scheduled Tribes. This was in clear
violation of the provisions of s. 3 (2) of the Maharashtra Land Revenue Code.
(2) The lands were first allowed to be leased out to persons not belonging to
Scheduled Tribes by the Collector or the Sub-Divisional officer on the ground
that members of the Scheduled Tribes holding such lands were unable to
cultivate them personally due to sickness or otherwise. Later on, taking
advantage of the provisions of the Bombay Tenancy & Agricultural Lands Act,
1948, such transferees applied to the Tenancy Courts for purchase of the
holdings on the ground that they were in cultivating possession on April 1,
1957 i.e. On "the tillers' day" The Committee accordingly recommended
that necessary legislation be undertaken for restoration of lands to such Scheduled
Tribes which had been transferred whether by way of sale, gift, mortgage or any
other disposition made or had gone into the possession of members not belonging
to Scheduled Tribes under a decree or order of a Court on or after April 1,
1957. It would therefore appear from the Report that the provisions contained
in the relevant Land Revenue laws were not found sufficient to help the members
of the Scheduled Tribes whose ignorance and poverty had been exploited by
persons belonging to the affluent and powerful sections to obtain sales or
mortgages either for a nominal consideration or for no consideration at all and
they had become the victims of circumstances.
The Statement of objects and Reasons
accompanying the Bill is as follows:
233 "It was noticed that in a number of
cases lands previously held by persons belonging to Scheduled Tribes have A
been transferred to non-Tribals as a result of purchases made or deemed to have
been made under the Tenancy Laws or as a result of transfers (including
exchanges) validly effected after 1st April, 1957 under the provisions of the
Maharashtra Land Revenue Code, 1966 or other laws in force in the State.
After examining the recommendation of the
Committee appointed by Government to examine the difficulties experienced by the
Tribal land. holders in the administration of certain provisions of the
Maharashtra Land Revenue Code and other laws in force in the State it is
considered necessary to provide for restoration of the lands which have gone
into the hands of non Tribals to their original Tribal owners. The bill seeks
to achieve this object".
We have referred to the Statement of objects
and Reasons and the Report of the Committee not as an aid to construction but
for the limited purpose of ascertaining the conditions prevailing at the time
the Bill was introduced and the object sought to be achieved.
Various contentions were raised but before we
deal with them, it is necessary to refer to certain provisions of the Act. S. 2
(1) of the Act is the definition clause. The word 'transfer' in relation to
land is defined in s. 2 (1) (i) to mean the transfer of land belonging to a
tribal made in favour of a non-tribal during the period commencing on the 1st
day of April 1957 and ending on the 6th day of July 1974 either (a) by act of
parties, whether by way of sale, gift, exchange, mortgage or lease or any other
disposition made inter-vivos, or (b) under a decree or order of a court, or (c)
for recovering any amount of land revenue due from such tribal, or for
recovering any other amount due from him as an arrear of land revenue, or
otherwise under the Maharashtra Cooperative Societies Act, 1960 or any other
law for the time being in force but does not include a transfer of land falling
under the provisions of sub-s. (3) of s. 36 of the Code and the terms
'tribal-transferor' and 'non- tribal transferee' have to be construed
accordingly. The word 'tribal' as defined in s. 2 (1) (j) means a person
belonging to a Scheduled Tribe within the meaning of the Explanation to s. 36
of the Code and includes his successors-in-interest. The expression 'relevant
234 tenancy law' is defined in s. 2 (1) (g) to mean (1) the Bombay A Tenancy
& Agricultural Lands (Vidarbha Region) Act, 1958, in relation to the
Vidarbha region of the State (2) the Hyderabad Tenancy & Agricultural Lands
Act, 1950, in relation to the Hyderabad region of the State, and (3) the Bombay
Tenancy & Agricultural Lands Act, 1948, in relation to the rest of the
State.
Sub-s. (1) of s. 3 of the Act provides as
follows:
"3. (1) Notwithstanding anything
contained in any other law for the time being in force or any judgment, decree
or order of any Court, Tribunal or authority, the Collector either suo motu at
any time, or on the application of a Tribal-transferor made within three years
from the commencement of this Act shall, after making such inquiry as he thinks
fit, direct that- (i) the lands of the Tribal-transferor and non-Tribals
transferee so exchanged shall be restored to each other; and the
Tribal-transferor, or as the case may be, the non-Tribal-transferee shall pay
the difference in value of improvements as determined under cl. (a) of sub-s.
(4), or (ii) the land transferred otherwise than by exchange be taken from the
possession of the non-Tribal- transferee, and restored to the
Tribal-transferor, free from all encumbrances, and the Tribal- transferor shall
pay such transferee and other persons claiming encumbrances the amount
determined under cl. (b) of sub-s. (4).
Provided that, where land is transferred by a
Tribal transferor in favour of a non-Tribal-transferee before the 6th day of
July 1974, after such transferee was rendered landless by reason of acquisition
of his land for a public purpose, then only half the land so transferred shall
be restored to the Tribal- transferor".
Sub-ss. (2) to (4) contain detailed
provisions for the terms upon which the Collector shall make an order for
restoration of lands to tribals by their non-tribal transferees under cl. (i)
or cl. (ii) of sub-s. (1) of s. 3 of the Act. Although these provisions are not
235 really material for our purposes, we would briefly refer to A them to show
that the impugned Act makes detailed provisions with a view to strike a balance
between the mutual rights and obligations of the parties upon the making of an
order for restoration of such lands to members of Scheduled Tribes under cl.
(i) or cl. (ii) of sub-s. (1) of s. 3 and the conditions upon which it can be
effected. Sub- s. (2) provides that where any land restored to a tribal under
cl. (i) of sub-s. (I ) is burdened with encumbrances, then such encumbrances
shall be transferred therefrom and attached to the lands restored to the
non-tribal or the tribal, as the case may be. Sub.s. (3) injoins that a tribal
shall notwithstanding anything contained in any law for the time being in force
in the State, be entitled to restoration of lands under the section only if he
undertakes to cultivate the land personally and to pay such amount to the
nontribal as the Collector may under sub-s. (4) determine.
Sub-s. (4) casts a duty on the Collector to
determine in the prescribed manner the value of the improvements, if any, where
lands are restored under cl. (i) or cl. (ii) of sub-s. (1), and the manner of
its payment. Clauses (a) to (g) thereof contain detailed provisions as to the
manner of payment. By cl. (a) it is provided that where lands are restored
under cl. (i) of sub-s. (1) i. e. where the land of a tribal exchanged with a
non-tribal is restored to such tribal, if the value of improvements made by a
tribal is found to be more, the difference shall be paid by the non- tribal to
the tribal and vice versa. By cl. (b) it is next provided that where the land
of a tribal transferred to a non-tribal is restored to him, the amount payable
by the tribal shall be an amount equal to 48 times the assessment of the land
or the amount of consideration paid by the non- tribal for acquisition of the
land, whichever is less plus the value of the improvements, if any, made by the
non- tribal to be determined by the Collector. Explanation to cls. (a) and (b)
lays down that the Collector in determining the value of any improvements under
cl. (b) shall have regard to (i) the labour and capital provided or spent on
improvements, (ii) the present condition of improvements, (iii) the extent to
which the improvement is likely to benefit the land during the period of 10
years next following the year in which such determination is made, and (iv)
such other factors as may be prescribed. Cl. (c) directs that the amount
representing the difference in the value of improvements as determined by the
Collector under cl. (a) shall be payable either in a lump sum or in such annual
instalments not exceeding 12 (with 236 simple interest a 4.5% per annum) as the
Collector may determine. Cl. (d) enjoins that where land in restored to a
tribal under cl. (i) of sub-s. (1) i. e. in case of restoration of the land
exchanged, the tribal shall pay to the non-tribal or other person claiming
encumbrances, the amount determined under sub-s. (4) either in lump sum or in
such annual instalments not exceeding 12 (with simple interest at 4.5% per
annum) as the Collector may determine.
Cl. (e) provides for apportionment of the
amount determined under cl. (b) among the transferee and the persons claiming
encumbrances in the manner provided therein. Cl. (f) provides that during any
period for which payment of rent is suspended or remitted under the relevant
tenancy law, the tribal or non-tribal shall not be bound to pay the amount in
lump sum or the amount of any instalment fixed under sub-s.
(4) or interest thereon, if any. Cl. (g) is
the eligibility clause. If the tribal or the non-tribal, as the case may be,
fails to pay the amount in lump sum or remains in arrears of two or more
instalments, the amount so remaining unpaid (with interest thereon at 4.5% per
annum) shall be recoverable by the Collector as arrears of land revenue. The
amount so recovered shall be paid by the Collector to the non-tribal and
persons claiming encumbrances, if any, or as the case may be, the tribal.
S.4 of the Act is in these terms:
"4. Where any land of a Tribal is, at
any time on or after the 1st day of April 1957 and before the 6th day of July
1974, purchased or deemed to have been purchased or acquired under or in
accordance with the provisions of the relevant tenancy law by a non-Tribal-
transferee or where any acquisition has been regularised on payment of penalty
under such law and such land is in possession of a non Tribal-transferee and
has not been put to any non-agricultural use on or before the 6th day of July
1974, then the Collector shall, notwithstanding anything contained in any law
for the time being in force, either suo motu at any time or on an application
by the Tribal made within three years from the commencement of this Act and
after making such inquiry as he thinks fit, direct that the land shall, subject
to the provisions of sub-s. (4) of s. 3, be restored to the Tribal free from
all encumbrances and that the amount of purchase price of a proportionate part
thereof, if any, paid by 237 such non-tribal-transferee in respect of such land
in accordance with the relevant tenancy law shall be refunded to A such
non-Tribal-transferee either in lump sum or in such annual instalments not
exceeding twelve (with simple interest at 4.5% per annum) as the Collector may
direct. The provisions of clauses (d), (e), (f) and (g) of sub-s. (4) of s. 3
shall, so far as may be, apply in relation to the recovery of the amount from
the Tribal and payment thereof to the non-Tribal- transferee and the persons
claiming encumbrances, if any".
It also contains a proviso which is in terms
identical with the proviso to sub-s. (1) of s. 3 and also serves the same
purpose.
Under the scheme of the Constitution, the
Scheduled Tribes as a class require special protection against exploitation.
The very existence of Scheduled Tribes as a distinctive class and the
preservation of their culture and way of life based as it is upon agriculture
which is inextricable linked with ownership of land, requires preventing an
invasion upon their lands. The impugned Act and similar measures undertaken by
different States placing restrictions on transfer of lands by members of the
Scheduled Castes and Tribes are aimed at the State Policy enshrined in Art. 46
of the Constitution which enjoins that The State shall promote with special
care the educational and economic interests of the weaker sections of the
people and in particular of the Scheduled Castes and Tribes and shall protect
them from social injustice and all forms of exploitation". One has only to
look at the artlessness, the total lack of guill, the ignorance and the
innocence, the helplessness, the economic and the educational backwardness of
the tribals pitted against the artful, usurious, greedy land grabber and exploiter
invading the tribal area from outside to realize the urgency of the need for
special protection for the tribals if they are to survive and to enjoy the
benefits of belonging to the 'Sovereign, Socialist, Secular, Democratic
Republic' which has vowed to secure to its citizen 'justice, social, economic
and political' 'assuring the dignity of the individual'. The great importance
which the Founding Fathers of the Constitution attached to the protection,
advancement and prevention of exploitation of tribal people may be gathered
from the several provisions of the Constitution. Apart from Art. 14 which,
interpreted positively, must promote legislation to protect and further the
aspirations of the weak and oppressed, including the 238 tribal, there are Arts.
IS (4) and 16 (4) which make special provision for reservation in Government
posts and admissions to educational institutions. Even the Fundamental Rights
guaranteed by Art. 19 (1) (d) and (e)7 that is, the right to move freely
throughout the territory of India and the right to reside and settle in any
part of the territory of India are made expressly subject to reasonable
restrictions for the protection of the interests of any Scheduled Tribe. The
proviso to Art. 275 specially provides for the payment out of the Consolidated
Fund of India as grants-in-aid of the revenues of a State such capital and
recurring sums as may be necessary to meet the cost of development schemes for
the promotion of the welfare of the Scheduled Tribes in the State. Art. 330 provides
for reservation in the House of the people for the Scheduled Tribes. Art. 332
provides for the reservation of seat for the Scheduled Tribes in the
Legislative Assemblies of the States. Art. 335 specially directs that the
claims of the members of the Scheduled Castes and the Scheduled Tribes shall be
taken into consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of the State. Art. 343 (2) empowers
the President to specify the tribes or tribal communities or parts of them
which shall be deemed to be Scheduled Tribes for the purpose of the
Constitution. Arts. 244 and 244A of the Constitution make special provision for
the administration and control of the scheduled areas and the scheduled tribes
in any State by the application of the Fifth and the Sixth Schedules.
Paragraph 3 of the Fifth Schedule
particularly enjoins the Governor of each State having scheduled areas to
report to the President annually or whenever so required, regarding the
administration of the scheduled area in that State, and the executive power of
the Union is extended by that paragraph to giving directions to the State as to
the administration of the said area. Paragraph S (2) empowers the Governor to
make regulations for the peace and good Government of any area in - any State
which is for the time being a scheduled area and, in particular, and without
prejudice to the generality of the foregoing power, such regulations may-(a)
prohibit or restrict the transfer of land by or among members of the Scheduled
Tribes in such area: (b) regulate the allotment of land to members of Scheduled
Tribes in such areas; and (c) regulate the carrying on of business as money-lender
by persons who lend - money to members of the Scheduled Tribes in such area.
Mention 239 has already been made of Art. 46
of the Directive Principle which A specially enjoins the State to protect the
Scheduled Castes and Tribes from all social injustice and from all forms of
exploitation. All these provisions emphasize the particular care and duty
required of all the organs of the State to take positive and stern measures for
the survival, the protection and the preservation of the integrity and the
dignity of the tribals. B The problem of how far and to what extent the law of
contract should be used as an instrument of distributive justice has been
engaging the attention not only of the Legislatures and the Courts but also of
scholars. Kronman(l) in his thoughtful article 'Contract . Law and Distributive
Justice, observes: C "If one believes it is morally acceptable for the
State to forcibly redistribute wealth from one group to another, the only
question that remains is how far the redistribution should be
accomplished".
According to learned author, this could be
achieved not only by taxation but also by regulatory control of private
transactions. He accepts that distributive fairness can only be achieved by
taxation or contractual regulation, at some sacrifice in individual liberty.
The present legislation is a typical
illustration of the concept of distributive justice, as modern jurisprudents
know it. Legislators, Judges and administrators are now familiar with the
concept of distributive justice. Our Constitution permits and even directs the
State to administer what may be termed 'distributive justice'. The concept of
distributive justice in the sphere of law-making connotes, inter alia, the
removal of economic inequalities and rectifying the injustice resulting from
dealings or transaction between unequals in society. Law should be used as an
instruments of distributive justice to achieve a fair division of wealth among
the members of society based upon the principle: 'From each according to his capacity,
to each according to his needs'. Distributive justice comprehends more than
achieving lessening of inequalities by differential taxation, giving debt
relief or distribution of property owned by on to many who have none by
imposing ceiling on hol- 1. Yale Law Journal 1979-80, Vol. 89, p. 472.
240 dings, both agricultural and urban, or by
direct regulation of A contractual transactions by forbidding certain
transactions and, perhaps, by requiring others. It also means that those who
have been deprived of their properties by unconscionable bargains should be
restored their property. All such laws may take the form of forced
redistribution of wealth as a means of achieving a fair division of material
resources among the members of society or there may be legislative control of
unfair agreements.
In the past forty years, most of the tribal
societies have come under attack by economically more advanced and politically
more powerful ethnic groups, who infilt-rated into tribal regions in search of
lands and new economic possibilities. These population movements triggered a
struggle for land in which the aboriginal tribesmen were usually losers, and
deprived of their anoestral lands, turned into impoverished landless labourers.
In order to meet the situation various forms of legislations have been brought
in to save the tribals from extinction and prevent their enslavement n and
degradation as destitutes. Much pioneering work has been done in the field of
study of the Tribes and Tribals*. It is beyond the scope of this judgment to
deal in depth with the sad plight of the Tribals or the insuperable problems
facing them and the various measures adopted to prevent their extinction. One
has only to read Professor Christoph von Furer-Heinmendorf's "Tribes of
India-the struggle for survival" to understand the enormity of the social
crimes that the non-tribals have been committing against the tribals. As the
learned author rightly points out:
"It is inherent in any plan for the
protection and support of the tribal minorities that whatever benefits are
envisaged for tribesmen must adversely affect the interests of some more
advanced sections of the population. Alienation of tribal land cannot be
prevented without depriving non-tribal landowners of the chance to enlarge
their holdings, a curb on exploitation by moneylenders interferes with the
activities of local businessmen, and any attempt to eradicate corrupt practices
of minor officials diminishes Elwin Verrir: The Religion of an Indian Tribe
(Bombay, 1955) Russell, R. V. The Tribes and Castes of the Central Provinces of
India (London, 1916) Grigson. Sir Wilfrid: The Maria Gonds of Bastar (London,
1949) 241 the income from dealings with ignorant and illiterate tribals. Thus
any policy of tribal rehabilitation arouse the opposition of vested
interests", The impugned Act is nothing but a remedial measure in keeping
with the policy of the State for rendering social and economic justice to this
weaker section of the society.
The taking of their lands may have been done
by way of transfer under the ordinary laws in various ways. The processes and
forms of law were apparently followed. But the result has been devastating. As
a result of such unequal transactions which were grossly unconscionable and
unjust, the tribals lost their lands to non-tribals and were rendered landless.
It is implicit in the nature of the legislation that the law regards such
transactions as unconscionable and oppressive, and directs restoration of the
property to the tribal transferor treating the transfer to be non-est. It is
axiomatic that a contract is liable to be set aside due to inequality of
bargaining power, if someone without independent advice, enters into a con-
tract on terms which are very unfair or transfers property for a consideration
which grossly inadequate when his bargaining power is previously impaired by
reason of his own need or circumstances, or by his own ignorance or infirmity,
coupled with undue influences or pressures brought to bear on him by or for the
benefit of the other. .
B. Bandyopadhyaya, Joint Secretary. Ministry
of Labour, Government of India, and B. N. Yugandhar, Special Assistant to the
Deputy Chairman, Planning Commission in their Report submitted to the
Government in 1975 brought out the reasons for the justified sense of grievance
felt by so many tribal populations in these words:
"The Girijans came in touch with the
administration only in a state of confrontation when they were tackled for
infringement or infraction of one or the other regulation which in fact
abridged, annulled or tinkered with their customary rights and privileges. Thus
the Girijans of the Parvathipuram agency tract found themselves totally
alienated from the administrative machinery and newly set up self- governing
institutions and were denied opportunities of gainful economic activities. They
Suffered not only 242 from poverty but also from a deep of insecurity. They
found themselves deprived at each point and at each front. A deep sense of
grievance and injustice enveloped the entire tribal population through decades
of neglect by the local administration.
(Emphasis supplied) The legislation is based
on the principle of distributive justice. The impugned Act is intended and
meant as an instrument for alleviating oppression, redressing bargaining
imbalance, canceling unfair advantages, and generally overseeing and ensuring
probity and fair dealing.
It seeks to reopen transactions between
parties having unequal bargaining power resulting in transfer of title from one
to another due to force of circumstances and also seeks to restitute the
parties to their original position. Quite recently, this Court in Manchegowde
& Ors v. State of Karnataka & Ors.(l) upheld the constitutional
validity of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of
Transfer Certain Lands) Act, 1973. It provided for restoration of lands
transferred by members of Scheduled Castes and Tribes where the grant of land
was attached with a condition regarding prohibition of transfer of the granted
lands. It repelled the contention that ss.4 and S of the Act which provided for
avoidance of transfers were violative of Art. 14, Art. 19 (1) (f) and Art. 31
of the Constitution and observed that any transfer of such lands in violation
of the prohibition conferred on the transferee only a defensible tit1e and
therefore the provisions could not be held to be arbitrary, illegal and void.
Instances of legislations undertaken for
distributive justice are not unknown. In Fateh Chand Himmatlal v. State of
Maharashtra(2) the challenge was to the provisions of the Maharashtra Debt
Relief Act, 1976. That Act did not prohibit the business of moneylending but it
wiped out all debts due to moneylenders upto a certain date and obliged them to
return to the debtors the securities obtained as a security for their debts.
The Court held that the moneylending was not a trade or business, but if it
was, the Act imposed reasonable restrictions on the business of moneylending
with in the meaning of Art. 304 (b). The evil of money lending was not confined
to isolated cases but was widespread as it affected a (1) [1984] 3 S.C.C. 301.
(2) [1977] 2 S.C.R. 828 .
243 very large number of agricultural and
rural debtors.
Considerable material was placed before the
High Court and this Court held A that the material so placed showed that
moneylending can be looked upon as a pernicious activity.
The material disclosed that previous
legislative attempts to grant relief to the debtors had failed, either because
resolute attempts were not made to enforce the law, or because of the
illiteracy, ignorance and above all the need of the borrowers or because of the
dishonesty of the moneylenders or by a combination of all these factors. The
question before the Court therefore was whether in view of all this evidence
and the failure of the earlier laws to give relief to borrowers, could a
Legislature, without violation any constitutional limitations, wipe out all
debts and restore the security given for the debts to the borrowers. C In
Pathumma v. State of Kerala(1) s.20 of the Kerala Agriculturists' Debt Relief
Act, 1970 was challenged, first for lack of legislative competence, secondly as
violative of Art. 19 (1) (f) and thirdly as violative of Art. 14. The Court by
two separate judgments reiterated the view expressed in Fateh Chand Himmatlal's
case, supra. S.20 of the Act provided for restoration of property of
agriculturists sold in execution of decrees on repayment of purchase price in
the manner specified therein. It made a distinction between a decreeholder who
had become the purchaser of the property of an agriculturist sold in execution
of a mortgage decree, and a stranger who purchased such property by Court sale.
Again, s.20 distinguished between a stranger auction-purchaser and a bona fide
alience who purchased such property from the auction-purchaser before the date
of the publication of the Act. The Court held that the classification of the
creditors was founded on an intelligible differentia that there was a
reasonable nexus between the basis of classification and the object sought to
be achieved and therefore the Act was not violative of Art. 14. Nor was
provision contained in s.20 for restoration of property to agricultural debtors
an unreasonable restriction within Art. 19 (S). As regards legislative
competence the concurring judgment held that the Act was clearly relatable to
Entry 30 in List II, namely, moneylending and moneylenders: relief of
indebtedness. It was argued that s.20 of the Act gave relief when by sale of
property the debt had ceased to exist. It was held that there was no reason why
relief from indebtedness should be limited to subsisting indebtedness and could
not cover (1) [1978] 2 S.C.R. 537.
244 the necessity of providing relief to
agriculturists who had lost their immovable property by court's sales in
execution of decrees against them and who had been rendered destitute.
What is of significance is that the Court in
Pathumna's case having regard to the legislative history in the State of the
relief from agricultural indebtedness and the sad plight of agriculturists who
had, been rendered destitute upheld the validity of s.20 of the Act which
provided for restoration of their immovable property sold in execution of any
decree for recovery of a debt or sold under the provisions of the Revenue
Recovery Act or sold in execution of any decree for arrears of rent etc. The
Act did not deprive the purchaser of the property without payment of
compensation but on the contrary it enjoined that the purchase money shall be
refunded to him In the case where the decreeholder was the purchaser, the
debtor was allowed to deposit one-half of the purchase money along with the
application to the Court for restoration of possession and to repay the balance
amount in 10 equal half-yearly instalments, together with interest thereon. As
regards a stranger auction-purchaser the Court observed that he stood mere or
less in the same position as the decreeholder cannot be heard to complain since
he purchased the property as a distress sale and was therefore bound to restore
the same to the agriculturist debtor. The law however treated him differently
because he had nothing to do with the decree and was therefore enjoined to
return the property to the agriculturist debtor on payment of the entire amount
in lump sum. Further, where improvements had been effected on the property, the
debtor was required to deposit the cost of such improvements for payment to the
purchaser. It is not necessary to encumber the judgment with many citations.
The constitutional validity of the impugned
Act has been challenged on several grounds, namely: (1) The provisions
contained in ss.3(1) and 4 of the Act which provide for annulment of transfers
of lands by tribals to non-tribals effected during the period specified therein
and for restoration of possession to them is beyond the legislative competence
of the State under Entry 18 in List II of the Seventh Schedule. (2) The
adoption of the date April 1,1957 as the date from which there is annulment of
transfers under ss.3 (1) and 4 is arbitrary and void as contravening Art. 14,
as there is no reasonable nexus for the fixation of such date and the object
sought to be achieved by the legislation. (3) The 245 impugned Act is also
violative of Art. 14 as it treats equals unequally since there is preferential
treatment given to members of 4; Scheduled Tribes as against those of Scheduled
Castes who also constitute the weaker section of the society without any
rational basis. (4) The provisions contained in ss.3 (1) and 4 are void under
Art. 13 (2) as they offend the principle of equality which is the basic
structure of the Constitution, for a distinction is made 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, l957 and July 6, 1974 and put such lands
to non-agricultural purposes, and other non-tribal transferees who also got
into possession of the lands belonging to tribals under transfers effected
during the same period but continued to use the lands for agricultural
purposes, and such differential treatment is without any reasonable
classification and thus offends against Art. 14 (5). The definition of
non-tribal transferee contained in s.2 (1) (1) also suffers from the same vice
as it allows transfers effected prior to March 15, 1971 to assignees of non
tribal transfrees to escape the consequence of annulment under ss.3 (1) and 4
for which there is no lawful justification and thus the Act is in flagrant
violation of the equality clause contained in Art. 14. And (6) s.9A of the Act
amounts to an unreasonable restriction on the right to acquire, hold and
dispose of property guaranteed under Art. 19 (1) (f) as there is denial of
opportunity to the non-tribal transferees to be represented by a lawyer of their
choice in proceedings initiated by the Collector suo motu or on an application
by the tribal under s. 3 (1) or s. 4 of the Act. We are afraid, none of these
contentions can prevail.
The first and foremost contention Is that the
provisions contained in ss. 3(1) and 4 of the Act which provide for annulment
of transfer of lands by tribals to non-tribals effected during the period
specified therein and for restoration of possession of such lands to them are
beyond the legislative competence of the State Legislature under Entry 18 in
List 11 of the Seventh Schedule. It is urged that the State has no competence
to make a law under Entry 18 in List II which had the effect to unsettle the
titles which had vested validly in the non-tribal transferees either by transfer
inter-vivos or by the decree or order of a Court. It is contended that there is
no Legislative competence of the State Legislature to enact a law of this kind
which purports to direct A' to transfer the lands to 'B' for 246 the only
reason that he got the lands by transfer from and happens to be a tribal. It is
urged that there is no provision anywhere in the Constitution under which such
a law could be enacted since the nexus of the impugned Act is not so much the
land but the tribal. The submission is that without acquisition of the lands by
the State from the non- tribal transferees the lands could not be restored to
the tribals by mere annulment of transfers. We are unable to accept this line
of argument.
The submission as regards lack of legislative
competence of the State to enact the impugned Act stems on , a misconception of
nature and content of the legislative power of the State under Entry 18 in List
II which reads:
"18. Land, that is to say, rights in or
over land, land tenures including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural land; land
improvement and agricultural loans; colonization . " The contention
advanced fails to take note that the impugned Act strikes at transactions
relating to agricultural lands effected between members of Scheduled Tribes who
admittedly belong to the weaker section of the society and persons not be
longing to Scheduled Tribes.
Experience in the past showed that members of
the Scheduled Tribes had been exploited due to their ignorance and poverty by
members belonging to the affluent and powerful sections of the society to
obtain transfer of their lands by way of sale, gift, mortgage, exchange etc.
for a nominal consideration or for no consideration at all rendering them
practically landless. It was also realized that due to their multifarious
duties the Sub-Divisional officers and the Collectors had accorded sanction to
such transfers without application of mind to the prevalent circumstances. It was
further felt that the members of Scheduled Tribes had become victims of
circumstances by reason of their lands being sold for realization of arrears of
land revenue or otherwise under the Maharashtra Cooperative Societies Act, 1960
or any other law for the time being in force. Much of the lands had been
transferred by members of Scheduled Tribes under compulsion due to their
indebtedness and their lands had passed into the hands of creditors landing
money at an unusually high rate of interest and were thus in a position to
dominate the will of the 247 borrowers. The Committee appointed by the State
Government pointed out in its Report that the provisions of the Maharashtra
Land Revenue Code, 1966 and the relevant tenancy laws had not been effective in
giving protection to persons belonging to the Scheduled Tribes. It recommended
inter alia that provision should be made for restoring possession to 'members
of Scheduled Tribes the lands which had been duly transferred by them to other
persons. There is always a presumption when there is a transfer between a
tribal and a non-tribal that it is an unequal bargain. As regards the weak and
the helpless, the law guards them with a special protective care. The
Legislature therefore stepped in and reopened such transactions by directing
that lands be restored to the tribal-transferors free from all encumbrances
tribal on payment by them to the non-tribal transferees the amounts determined
by the Collector under sub-s. (4) of s. 3 The restoration of the possession under
ss.3 (1) and 4 does not involve any deprivation of the property in the sense
that there is unsettling of title without consideration. It makes detailed
provisions setting out the conditions subject to which a transfer of
agricultural lands by a tribal to a non-tribal may be nullified and possession
restored. It also provides for the legal consequences that must ensue upon
restoration of such possession like repayment of the consideration by the
tribal-transferor. to the non-tribal transfree together with his liability to
pay for the costs of improvements, if any, effected. The transferor has in
addition to give an undertaking that he needs the lands for his personal
cultivation, It further prescribes the mode of payment of the amount so
determined. In substance the object of the legislation is restitution of the
property to the persons to whom the lands originally belonged, subject to the
adjustment y of equities between the parties.
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
llI:
"6. Transfer of property other than
agricultural land; registration of deeds and documents " 248 "7.
Contracts, including partnership, agency, contracts of carriage, and other
special forms of contracts, but not including contracts relating to
agricultural lands." The words 'other than agricultural land' in Entry 6
and the words 'but not including contracts relating to agricultural land' in
Entry 7 in List llI 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 ss. 3 (1)
and 4 of the Act incidentally trench upon the existing law, namely, the Transfer
of Property Act, 1882 and the Contract Act 1872 or a law made by Parliament
namely the Specific Relief Act, 1963. The power of the State Legislature to
make a law with respect to transfer and alienation of agricultural land under
Entry 18 in List II carries with it not only a power to make a law placing
restrictions on transfers and alienations of such lands including a prohibition
thereof, but also the power to make a law to reopen such transfers and
alienations. Such a law was clearly within the legislative competence of the
State Legislature being relatable to Entry 18 in List II of the Seventh
Schedule.
The remaining contentions are of little or no
avail to the appellants. The impugned Act having been placed in the ninth
Schedule of the Constitution, the submission that the provisions of ss. 3 (1)
and 4 thereof are inconsistent with, or take away, or p abridge any of the
fundamental rights conferred by Art. 14, Art. 19 (1) (f) or Art. 31 of the
Constitution, must be rejected at the very threshold because it is protected
from any such challenge under Art 31 B.
Even otherwise, the remaining contentions
cannot prevail. The contention that the adoption of the date April 1, 1957 as
the date from which there is annulment of transfers under ss. 3 (1) and 4 was arbitrary
and void as infring Art. 14, appears to be wholly misconceived. The adoption of
the date April 1, 1957 in the definition of the term 'transfer' in s. 2 (1) (i)
as the date for the provisions of ss. 3 (1) and 4 of the Act to operate is
based on an intelligible or rational classification. It is permissible for the
Legislature to make a classification on the basis of time for a law to operate.
What is necessary is that there must be a reasonable 249 nexus between the
basis of classification as to time and the object A sought to be achieved. The
Act adopts April 1, 1957 for nullification of transfers made by tribals to non-
tribals under ss. 3 (1) and 4 because that was the 'tillers' day' for purposes
of the Bombay Tenancy & Agricultural Lands Act, 1948 on the basis of which
the non-tribal transferees could apply to the Tenancy Courts for purchase of
their holdings on the ground that they were in cultivating possession thereof.
There was therefore reasonable nexus for the fixation of such date and the object
sought to be achieved and the impugned Act if not violative of Art. 14.
The next contention is that the impugned Act
offends against Art. 14 of the Constitution because it treats equals unequally
in that (1) members of Scheduled Castes who also constitute the weaker section
of the society have been discriminated against, and (2) there is preferential
treatment afforded to non-tribal transferees who had diverted the lands
purchased by them to non-agricultural purposes and other non-tribal transferees
who continued to use the same for agricultural purposes without any rational
basis. Both the submissions are devoid of substance. In the first place, the
appellants who are transferees from members of Scheduled Tribes cannot possibly
plead the cause of members of Scheduled Castes. That apart, members of .
Scheduled Tribes i.e. tribes who are mostly
aboriginals constitute a distinct class who need the special protection of the
State. Further, the question as to how far and by what stage 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 transfer from a p tribal during the period from April 1, 1957 to
July 6, 1974 and had put such lands to non- agricultural purposes, 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 agricultural purpose ceased to be
agricultural lands. In the case of such non-agricultural 250 Land, if the State
Legislature made such law it would not be effective unless it was reserved for
the assent of the President and received such assent.
Equally futile is the argument that the
definition of 'non-tribal transferee' contained in s.2(1)(1) offends against
Art. 14 as it permits . an assignee of a non-tribal tranferee effected prior to
March 15, 1971 to escape the consequence of annulment under s.3(1) or s.4 of
the Act. The definition of non-tribal transferee' in s.2(1)(1) is an inclusive one.
the expression non-tribal transferee' as defined includes his
successore-in-interest; and if he or his successor had, on or after March 15,
1971, transferred land in favour of any person whether a tribal or a non-
tribal, comes within the preview of the definition. The Legislature appointed
March 15, 1971 with a view to give retrospective effect to the provisions of
ss.3(1) and 4 of the Act as that was the date on which the Government
constituted the Committee to inquire into and report to the State Government on
how for the provisions of the Maharashtra Land Revenue Code, 1966 and the
relevant tenancy laws had been effective in giving protection to persons
belonging to Scheduled Tribes. But it is not correct to say that the definition
of 'non-tribal transferee' contained in s.2(1)(1) permits an assignee of
non-tribal transferee effected prior to that date i.e. March 15, 1971 to escape
the consequences of annulment under ss.3(1) and 4 of the Act. Such a
construction of the definition of the expression 'non-tribal transferee' under
s.2(1()1) would run counter to the scheme of the Act.
As regards the two provisos to ss.3(1) and 4
of the Act which are identical in terms, they are meant to operate in a case
where a non-tribal transferee had acquired the land from a tribal by transfer
during the period in question after his own land had been acquired for a public
purpose.
In such a case, only one-half of the land so
transferred shall be restored to the tribal-transferor while the non- tribal
transferee is allowed to retain the compensation amount for the land acquired.
These provisos are meant to mitigate the hardship which otherwise would be
caused to a non-tribal transferee who would again be rendered landless if he
were required to restore the entire land under s.3(1) or s.4 of the Act.
The next and the last question that arises is
whether s.9A of 251 the Act is constitutionally void as it affects (i) the
fundamental right of an advocate enrolled by the State Bar Council of
Maharashtra to carry on his profession guaranteed by Art. 19(1)(g) of the
Constitution and (ii) the right of the appellants who are non-tribals being
prevented to be represented by a legal practitioner of their choice.
The problem before us has to be viewed from
two angles:
first, from the viewpoint of the legal
practitioner, and secondly from that of the litigants. Though the question for
consideration as to whether s.9A of the Act offends Art.
19(1)(g) is of considerable importance to the
litigant public in general, and the legal profession in particular, it is no
longer res integra, it being practically concluded by several decisions of the
various High Courts, from both the viewpoints noted above. S.9A of the Act
reads:
"9A. Notwithstanding anything contained
in this Act or any law for the time being in force, no pleader shall be
entitled to appear on behalf of any party in any proceedings under this Act
before the Collector, the Commissioner or the Maharashtra Revenue Tribunal:
Provided that, where a party is a minor or
lunatic, his guardian may appear, and in the case of any other person under
disability, his authorised agent may appear, in such proceedings." The
contention that an advocate enrolled under the Advocates Act, 1961 has an
absolute right to practice before all Courts and Tribunals can hardly be
accepted. Such a right is no doubt conferred by s.30 of the Advocates Act.
But unfortunately for the legal profession,
s.30 has not been brought into force so far though the Act has been on the
Statute Book for the last 22 years. There is very little that we can do in the
matter and it is for the Bar to take it up elsewhere. A person enrolled as an
advocate under the Advocate Act is not ipso facto entitled to a right of
audience in all Courts unless s.30 of that Act is first brought into force.
That is a matter which is still regulated by different statutes and the extent
of the right to practice must depend on the terms of those statutes. The right
of an advocate brought on the rolls to practise is, therefore, just what is
conferred on him by s.l4(1)(a), (b) and (c) the Bar Conncils Act, 1926.
252 In view of the settled law on the
subject, we cannot but held that s.9A of the Act is not an unconstitutional
restriction on advocates to practise their profession.
That brings us to the second aspect of the
matter i.e. the socalled right of a litigant to be represented before the
Collector in matters not covered by ss.3(1) and 4 of the Act. Now it is
wellsettled that apart from the provisions of Art.22(1) of the Constitution, no
litigant has a fundamental right to be represented by a lawyer in any Court.
The only fundamental rights recognized by the Constitution is that under
Art.22(1) by which an accused who is arrested and detained in custody is
entitled to consult and be defended by a legal practitioner of his choice. In
all other matters i.e. in suits or other proceedings in which the accused is not
arrested and detained on a criminal charge, the litigant has no fundamental
right to be represented by a legal practitioner. For aught we know the
legislature felt that for the implementation of the legislation, it would not
subserve the public interest if lawyers were allowed to appear, plead or act on
behalf of the non-tribal transferees. It cannot be denied that a tribal and a
non- tribal are unequally placed and non-tribal transferee being a person
belonging to the more affluent class, would unnecessarily protract the
proceedings before the Collector under ss.3(1) and 4 of the Act by raising all
kinds of pleas calculated to delay or defeat the rights of the tribal for
restoration of his lands The proceedings before the Collector have to be
completed will sufficient dispatch and the transferred lands restored to a
tribal under sub-s.(l) of s.3 and s.4 of the Act without any of the law's
delays.
In the result, the appeals must fail and are
dismissed with costs.
N.V.K. Appeal dismissed.
Back
