Reddy & Ors Vs. State of Andhra Pradesh
& Anr  INSC 175 (14 July 1988)
M.P. (J) Thakkar, M.P. (J) Ray, B.C. (J)
1988 AIR 1626 1988 SCR Supl. (1) 443 1988 SCC (3) 433 JT 1988 (3) 47 1988 SCALE
Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Regulation I of 1959)
made by the Governor under para 5(2) of Fifth Schedule to the Constitution of
India-Sec.3(1)-As substituted by Andhra Pradesh Scheduled Areas Land Transfer
(Amendment) Regulation, 1970 (Regulation I of 1970)-Interpretation of-Sec. 3(1)
in so far as it prohibits transfer of immovable property situated in scheduled
areas by a 'non-tribal' to another 'non-tribal'- Whether constitutionally
invalid being violative of Article 19(1)(f) as it obtained at the relevant time
till its repeal by the Constitution (Forty-fourth Amendment) in 1979-Held
of India-Fifth Schedule-Paragraph 5(2)(a)- Expression "Land"-Scope
of-Whether used in narrow sense- Held-Expression land is comprehensive-Wide
enough to include structures raised thereon.
3(1) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959
(Regulation I of 1959) prohibited transfer of immovable properties situated in
the scheduled areas from a member of scheduled tribe to non-tribals without
previous sanction of the State Government. In order to facilitate effective
enforcement of the said 1959 regulations, the Andhra Pradesh Scheduled Areas
Land Transfer (Amendment) Regulation, 1970 was introduced.
1970 inter alia brought the following changes namely (i) transfers of land in
scheduled areas in favour of 'non-tribals' were wholly prohibited in future and
(ii) non- tribals holding lands in the scheduled areas were prohibited from
transferring their lands in favour of persons other than tribals. The
appellants who owned lands in the scheduled areas having acquired them from tribals
and 'non- tribals' were affected by this amending Regulation of 1970.
filed writ petitions in the High Court challenging this regulation being
unconstitutional. The High Court dismissed the writ petitions. Hence these
appeals by Certificate under Article 133(1)(a) of the Constitution. The main
contention of the appellants was that the impugned provisions were
unconstitutional as being violative of Article 19(1)(f) of the Constitution as
it obtained at the 444 material time till it was repealed by the Constitution
(Forty-fourth) Amendment in 1979 because they imposed unreasonable restrictions
on the non-tribal holders of properties in the scheduled areas. Dismissing the
appeals and while tracing a short history of the legislation, this Court, ^
originally all the lands in these tracts were owned by the 'tribals'. With the
advent of the 'non-tribals' in the late 19th Century and early 20th Century,
the lands changed hands from 'tribals' to 'non-tribals'. This change of
ownership was a result of exploitation raising: (1) In the context of money
lending operations and (2) in the context of dubious and unconscionable
dealings in the course of trade. The 'non-tribals' had so often circumvented
the legislation enacted in order to protect the 'tribals' by recourse to benami
transactions and by recourse to dubious devices. The poor ignorant, illiterate,
and unsophisticated tribals had succumbed to the wiles of the economically
stronger and unscrupulous 'non-tribals'. A legislation which in essence and
substance aims at restoration to the 'tribals' of the lands which originally
belonged to the 'tribals' but which passed into the hands of 'non-tribals' in
the aforesaid background certainly cannot be characterised as unreasonable. [455G-H;
456A-C] No unreasonableness is involved in making the prohibition against
transfer to 'non-tribals' applicable to both the 'tribal' as also to the
'non-tribal' owner in the scheduled area. As a matter of fact it would have
been unreasonable to do otherwise. In the absence of protection, the
economically stronger 'non-tribals' would in course of time devour all the available
Lands and wipe out the very identity of the tribals who cannot survive in the
absence of the only source of livelihood they presently have. [457C-D] The
submission that the prohibition against transferring the properties to 'non-tribals'
being in absolute terms, a non-tribal' cannot even raise a loan on his
properties even in the event of the 'non-tribal' being under economic
compulsion to do so cannot be acceded to as it overlooks the amendment
introduced by Sec. 3A(1) inserted by Regulation 1 of 1971. [458A-B] Tribes of
India The Struggle for Survival (1982-83 edition) by Christoph von Furer-Haimendorf;
The Continent of Circe,  by Nirad C. Chaudhari; Manchegowda and Ors. v.
State of Karnataka,  3 SCC p. 301 and Lingappa Rochanna
Appelwar v. State of Maharashtra.  1 SCC 479, referred to.
The argument that the expression 'Iand' has been used in its restricted sense
in paragraph 5(2)(a) of Schedule V to the Constitution of India and therefore
the impugned provisions prohibiting the transfer of lands along with structures
thereon by employing the expression 'immovable property' is not in accordance
with law is devoid of merit for two reasons: firstly, there is no reason to
believe that `land' has not been employed in its legal sense. The expression
'land' in its legal sense is a comprehensive expression which is wide enough to
include structures, if any, raised thereon and secondly to interpret the
expression 'land' in its narrow sense is to render the benevolent provisions
impotent and ineffective. In that event the prohibition can be easily
circumvented by just raising a farm house or a structure on the land. The
impugned provisions were inserted by the Amending Regulation precisely to plug
such loopholes and make the law really effective. [.158C-D; 459D-E] The
Dictionary of English Law, [19591 Edition Vol. 2 p. 1053 by Earl Jowitt; Words
and Phrases Judicially Defined, By Roland Burrows-Vol.IlI 1944 Edition p. 206
and The Law Lexicon, By p. Ramanatha Aiyar-Reprint Edition 1987-p. 700,
APPELLATE JURISDICTION: Civil Appeal Nos. 2299- 2300 of 1972.
the Judgment and order dated the 24.9.1971 of the Andhra Pradesh High Court in
Writ Petition Nos. 806 & 3161 of 1970.
and S. Madhusudan Rao for the Appellants.
Iyer, K. Ram Kumar and K. Ram Mohan for the Respondents.
Markandaya and Mrs. C. Markandaya for the interveners.
Judgment of the Court was delivered by THAKKAR, J. A challenge to the validity
of a provision' in so far as it prohibits the transfer of any immovable
property situated in the scheduled areas of Andhra Pradesh by a 'non-tribal' in
favour of another 'non-tribal' having been repelled by the High Court upon
Section 3(1) of the Andhra Pradesh Scheduled. Areas Land Transfer Regulation,
1959 as inserted by Regulation I of 1970. (Reproduced at page 6-Footnote 3).
testing on the touchstone of constitutionality, the present appeals have been
preferred by some of the unsuccessful original Writ Petitioners. Some others
have intervened upon their application for leave to intervene having been
granted by this Court.
appellants and the interveners have by and large reiterated 13 the same
contentions before this Court in support of their plea that the impugned provision
is unconstitutional as being violative of Art. 19(1)(f) of the Constitution of
India as it obtained at the material time till its repeal by the 44th Amendment
short history of the legislation may be briefly traced to the extent considered
necessary. In the Andhra Area there existed before the inauguration of the
Constitution, certain laws including the Agency Tracts Interest and Land
Transfer Act, 1917 which inter alia prohibited transfer of land in the Agency
Tract areas except in favour of members of hill tribes conferring upon the
persons belonging to the Scheduled Tribes certain benefits.
the Constitution of India came into force, Art. 244 of the Constitution and the
Fifth Schedule were made applicable to the administration of the scheduled
areas. Para 6 of the Fifth Schedule empowered the President to notify the
Scheduled areas in consultation with the Governor of the State. The scheduled
areas in Andhra region of this State were notified by the President through the
Scheduled Area (Part 'A' States) order, 1950. Para 5(2) of the Fifth Schedule
empowered the Governor of the State to make Regulations for the peace and good
Government of the Schedule Areas. Accordingly, the Governor made the A.P.
Scheduled Areas Land Transfer Regulation, 1959, (Regulation I of 1959). This
Regulation came into force with effect from 4.3.1959. Section 3(1) of this
Regulation prohibited transfer of immovable properties situated in the
scheduled areas from a member of scheduled tribes to non tribals without
previous sanction of the State Government or subject to rules made in this
behalf, with the previous consent in writing of the Agent or of any prescribed
officer. Similar laws designed to protect the tribals from exploitation were in
operation in the Telengana area of the then State of Hyderabad. In exercise of
powers under paragraph 5(2)(a) of Fifth Schedule of the Constitution the
Governor enacted the Andhra Pradesh Scheduled Area Laws (Extension and
Amendment) Regulations, 1963 whereby certain rules and regulations which
already existed, and were in operation in the Andhra area of the State were
a Certificate under Art. 133( l)(a) of the Constitution of India.
effect from June 20. 1979.
extended to all parts of the State. The result was that the Andhra Pradesh
Scheduled Areas Land Transfer Regulations came to be extended to the Telengana
area of the State as well.
the 1959 Regulation, any transfer of immovable property situated in the Agency
Tracts, by a member of a Scheduled Tribe was declared null and void unless,
made in favour of any other member of a Scheduled Tribe or a registered
cooperative society composed solely of members of the Scheduled Tribes or with the.previous
consent in writing of the Agent. The said Regulation further empowered the
Agent to decree an ejectment against any person in possession of any immovable
property, the transfer of which was made in contravention of its provisions and
to restore it back to the transferor or his heirs. If the transferor or his
heirs were not willing to take the property or where their whereabouts are not
known? the Agent was further empowered to order assignment or sale of the
property to any other member of a Scheduled Tribe or a registered cooperative
society composed solely of members of the Scheduled Tribes or otherwise dispose
of it, as if it was a property at the disposal of the State Government However,
as difficulties were experienced by the Government in implementing the ejectment
procedures under the said Regulation, inasmuch as it was not always easy for
the concerned authority to ascertain the origin of the right under which the
non-tribal is claiming possession and whether the land now under the possession
of a non tribal was previously acquired from a tribal or not, the said 1959
Regulation was amended by the Andhra Pradesh Scheduled Areas Land Transfer
(Amendment) Regulation, 1970 with a view to remedy the said mischief. The
amending Regulation of 1970 in order to facilitate effective enforcement of the
said 1959 Regulations introduced interalia, the following changes, namely:
rule of presumption was introduced to the effect that unless the contrary is
proved, where a non- tribal is in possession of land in the Scheduled areas, he
or his predecessors-in-interest, shall be deemed to have acquired it through
transfer from a tribal;
Transfers of land in Scheduled Areas in favour of non-tribals shall be wholly
prohibited in future;
Non-tribals holding lands in the Scheduled Areas shall be prohibited from
transferring their lands in favour of persons 448 other than tribals. Only
partitions and devolution by succession of lands held by them shall be
permitted; and (iv) Where a tribal or non-tribal is unable to sell his land to
a tribal on reasonable terms, it shall be open to him to surrender the land to
Government who shall thereupon be obliged to acquire it on payment of
(a) of substituted section 3(1)3 rendered all the transfers made except those
in favour of a tribal, to be null and void. Clause (b) of sub-section (1) of
Section 3 raises a presumption that any immovable property in possession with a
non-tribal would be presumed to have been acquired by such person through a
tribal. Clause (c) of sub- section (1) of Section 3 provides for payment of
compensation to the non-tribal at the rate specified in Section 10 of Andhra
Pradesh Ceiling on Agricultural Holdings Act, 1961. The Andhra Pradesh Sec. 3
(1)(a) Notwithstanding anything in any enactment rule or law in force in the
Agency tracts any transfer of immovable property situated in the Agency tracts
by a person, whether or not such person is a member of a Scheduled Tribe, shall
be absolutely null and void, unless such transfer is made in favour of person,
who is a member of a Scheduled Tribe or a society registered or deemed to be
registered under the Andhra Pradesh Co operative Societies Act, 1964 (Act 7 of
1964) which is composed solely of members of the Scheduled Tribes.
Until the contrary is proved, any immovable property situated in the Agency
tracts and in the possession of a person who is not a member of Scheduled
Tribe. shall be presumed to have been acquired by person or his predecessor in
possession through a transfer made to him by a member of a Scheduled Tribe.
Where a person intending to sell his land is not able to effect such sale, by
reason of the fact that no member of a Scheduled Tribe is willing to purchase
the land or is willing to purchase the land on the terms offered by such person,
then such person may apply to the Agent, the Agency Divisional officer or any
other prescribed officer for the acquisition of such land by the State
Government, and the Agent. Agency Divisional officer or the prescribed officer,
as the case may be by order, take over such land on payment of compensation in
accordance with the principles specified in Section 10 of the Andhra Pradesh
Ceiling on Agricultural Holdings Act, 1961, (Act, X of 1961), and such land
shall thereupon vest in the State Government free from all encumbrances and
shall be disposed of in favour of members of the Scheduled Tribes or a society
registered or deemed to be registered under the Andhra Pradesh Co-operative
Societies Act, 1964 (Act 7 of 1964 composed solely of members of the Scheduled
Tribes or in such other manner and subject to such conditions as may be
prescribed.] 449 Regulation No. 1 of 1970 inserts sub-section (4) in Section 3
whereby 'transfer' has been defined to include a sale in execution of a decree
including a benami transaction. The only species of transfer which has been
excluded from the operation of the regulation is petition or devolution by
succession. Provision has been made for the ejectment of persons who came into
possession of such lands as a result of such transfers and for the restoration
of land to the original transferor or his heirs. By Regulation 1 of 1971
Section 3-A was introduced whereby a mortgage without possession in favour of a
Bank or institution approved by the Government was permitted subject to certain
Governor further framed a regulation to amend the Andhra Pradesh Scheduled
Areas Land Transfer Regulation, 1959, being A.P. Regulation No. 1 of 1978 which
came into force with effect from October 24, 1978. Regulation No. I of 1978
inserted sections 3-B and 6-A. Section 6-B prohibited registration of documents
of transfer while sections 6-A and 6-B respectively provided for punishment for
acquiring any immovable property after a decree for ejectment was passed.
punishment is to the extent of rigorous imprisonment of one year or fine of
Rs.2000 or both. Section 6-B makes such an offence cognizable.
appellants own lands, and have immovable properties in the Scheduled areas of
Andhra Pradesh, and have been cultivating their lands for the past many years.
Some of them have acquired these lands in the remote past, and some in the
recent past by purchase, some from the tribals, and some from the non-tribals.
By the amending Regulation which is now impugned, all acquisitions of immovable
property by transfer from tribals? and non-tribals alike, are declared null and
void. The appellants are all non-tribals, and are affected by this amending
Regulation. Some of them belong to the Scheduled areas in the Telengana region,
and some of the Scheduled areas in the Andhra region. But, they have a common
grievance that the Regulation cuts at the root of their right to the immovable
properties, which have been in their possession for the past many years.
principal plea of the appellants before this Court is that in so far as the
impugned provision seeks to control or restrict the right of transfer of
immovable property by a 'non-tribal' person it is void and that the High Court
has erred in holding otherwise.
realized that the question whether or not the impugned regulation brought into
force in 1970 has retrospective operation as contended by the State or whether
it merely has a prospective operation as 450 held by the High Court does not
fall for consideration in the present group of appeals. This question has been
raised in another set of appeals which are awaiting decision before this Court.
We therefore do not deal with this dimension of the issue in the present
judgment and refrain from expressing any opinion on this question.
also be mentioned that the thoroughly untenable plea unsuccessfully advanced
before the High Court that the Government had exceeded the power conferred by para
5(2) of Schedule V of the Constitution was not exercised for the peace and good
governance of the scheduled area, has not been reiterated before this Court.
This Court is therefore not required to deal with this fact which has been
fully, adequately, and most satisfactorily dealt with by the High Court which
unhesitatingly turned down the plea.
reasonableness or otherwise of the restrictions imposed by the impugned
provision cannot be tested in void.
socio-economic landscape in the backdrop of which the compulsion to legislate
was occasioned needs to be painted to enable the Court to approach in a
meaningful manner the problem posed by the challenge rooted in the submission
that these restrictions are unreasonable from the perspective of Article 19(1)
of the Constitution of India inasmuch as these are not essential for the
protection of the interests of the Scheduled Tribes. To this end the following
picture emerging from the additional counter filed by the State drawn from
sources which have rightly been considered as authentic by the High Court
deserves to be highlighted:
Within the scheduled areas of both Telengana and Andhra Pradesh regions the
land was entirely in occupation of different Tribal communities. The area was
an inaccessible tract of land covered by forests and hills. These tribal
communities were in occupation of lands and lived by shifting cultivation and
gathering whatever produce that was available.
non-tribals who arrived in these areas landed in the 19th Century in certain
areas and the early 10th Century in certain other areas found the tribals who
were in occupation of these lands an easy prey for the schemes of exploitation.
The non-tribals were lending money to the tribal communities and taking the
land belonging to them as security though nothing was taken in writing from a
tribal. The rates of interest charged ranged between 25 to 50 per cent and in
certain cases even 100 per cent. The tribals who were tradi VINEET 451 tionally
honest and who were simple in their thought and habits fell an easy prey to the
schemes of the non-tribals.
None of these money lenders ever credited any amount paid by the tribals
towards their debt and whatever entries were made in the books of the money
lenders were implicitly believed by the tribals. The tribals were not aware
that when produce was sold to the non-tribals, they were using a larger weight
and a smaller weight was applied for selling outside goods to the tribals.
indebtedness of the tribal had taken the form of bonded labour in many cases.
The debt could never be discharged by the tribals.
money lenders continued to be in occupation of most of the lands and the tribals
became their serfs. The non-tribals have also forcibly occupied some of the
lands. The tribals were ignorant and they were not aware that they could go and
report to the concerned authorities about the contravention of the Regulations
protecting their rights. The non-tribals have been taking full advantage of
their ignorance and exploited them and are continuing to exploit them.
There were several rebellious movements in the Scheduled areas against the
oppression by the money lenders and rapacious landlords.
of Tribals was a cause of many disturbances such as Ramparebellion in East Godavari
in about 1899. In comparatively recent times also in Adilabad district the tribals
rebelled in 1941 as a result of alienation of land and forest reservation rules
and even in 1967-68, most of the tribals fell an easy prey to some of the
political leaders who promised that the lands in Scheduled areas would be
restored to them and that the non-tribals would be driven out.
is a known fact that these tribal communities joined hands with the so called
revolutionaries and again there was an uprising in the tribal area against the
non-tribals which had started spreading to the plains areas also.
tribal communities which went into the grip of revolutionaries were not able to
extricate themselves out of their grip. It is only after the tribals were
promised by the Government that the land would be restored to them and the exploi-
452 tation by non-tribals would be checked and after arresting the several revolutionaries
peace has prevailed in several parts of the scheduled areas.
Scheduled Tribes were not put back in possession of the land and measures were
not taken to prevent exploitation by non-tribals peace would not have prevailed
in the Scheduled Areas.
was observed by several committees that the non-tribals were able to find ways
and means to circumvent the provisions of Regulation I of 1959 by entering into
benami trans actions and other clandestine transactions with unsophisticated tribals.
It is absolutely necessary to create conditions for peace and maintain peace
and prevent the new non-tribals from settling down in the Scheduled area. If
the alienations are permitted to the non-tribals there is a danger of large
scale exploitation by the new non-tribal again with the result peace will be
disturbed in that area.
is only with a view to maintain peace and to govern the area effectively
Regulation I of 1970 was passed by the Governor. A non-tribal who validly
acquired the title will not be disturbed, but he is not allowed to sell his
land to a non- tribal which will inevitably mean new entrants into this area.
a sample survey conducted in Chintapalli and Bhadra chalam it was found that
the average size of holding per family is only 3 to 4 acres. But even this
extent of land was either mortgaged or otherwise transferred in favour of non tribals
and they are in possession of the lands.
Unless new entrants into the Scheduled areas are prevented from settling down
in the Scheduled areas by purchasing properties either from tribals or non-tribals,
it is not possible to prevent the exploitation of the unsophisticated tribals.
It is only with a view to enforce the valid provisions of Regulation I of 1959,
the Regulation viz., Regulation I of 1970 was made. It is in the interests of
the tribals and for their protection Regulation I of 1970 was passed, because
without restricting or prohibiting the alienation of lands in the pos session
of non-tribals to non-tribals the objectives cannot be achieved.
What has emerged from the additional counter filed by the State in the High
Court is buttressed by the contents of a treatise authored by a well-known
research scholar. The treatise is the culmination of laborious research carried
out in respect of the very areas which form a part of the scheduled area of
Andhra Pradesh in respect of which the impugned legislation has been enacted.
It has been stated therein that more than 40 million Indians belong to tribal
communities distinct from the great mass of the society.
are the aboriginal races from the Dravidian architects of ancient South Indian
civilizations. The dramatic change in the peaceful co-existence between the tribals
on the one hand and the more dynamic section of the society occurred when
improved communications opened up previously inaccessible tribal areas and
rapid growth of the Indian population led to pressure on the land's resources.
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
infiltrated into tribal regions in search of land and new economic
population movements triggered a struggle for land in which aboriginal
tribesmen were usually the losers and, deprived of their ancestral land, turned
into impoverished, Ianndless labourers.
this treatise the learned author has quoted the distressing forecast made by Nirad
C. Chaudhari in his book 3 wherein he has lamented:
an industralized India the destruction of the aboriginal's life is as
inevitable as the submergence of the Egyptian temples caused by the dams of the
Nile .. As things are going there can be no grandeur in the primitive's end. It
will not be even simple extinction, which is not the worst of human destinies.
It is to be feard that the aboriginal's last act will be squalid, instead of
being tragic. What will be seen with most regret will be not his disappearance
but his enslavement and degradation.
cannot therefore be gain-said that the tribals not only require to be preserved
and protected in respect of their economic and educational interest but they
also require to be immunized from social injustice and exploitation. The
Founding Fathers of the Constitution of
Tribes of India The Struggle for Survival (1982-83 edition) by Christoph von Furer
Haimendorf. 2. Inside of front flap.
Inside of front flap.
Continent of Circe. 1965.
India have in their wisdom and foresight taken cognizance of this vital aspect
as is evidenced by the provisions embodied in Article 15(4)1 and Article 462 of
the Constitution of India.
constitutional mandate reflected in the aforesaid Articles has influenced this
Court in no small measure in upholding the constitutionality of the impugned
legislative provisions enacted with an eye on preserving and protecting the
interest of the tribals in the lands in the tribal areas. Reference in this
behalf may be made to Manchegowda and Ors. v. State of Karnataka wherein the
focus was on provisions prohibiting transfers to 'non-tribals' of lands granted
to the tribals and on remedial measures for speedy restoration of such lands to
the members of Scheduled Castes and Scheduled Tribes in cases where the lands
had passed into the hands of the 'non-tribals'. Reference may also be made to Lingappa
Pochanna Appelwar v. State of Maharashtra whereby this Court has upheld the
constitutionality of the provisions enacted essentially in order to secure
restoration to the original tribal owners the lands which had gone out of their
hands and passed into the hands of the 'non-tribals'.
problem presented in the present appeals is somewhat different from the
problems which have surfaced so far. It brings into focus the challenge to the
validity of the provisions enacted with a view to prevent 'non-tribals' along
with 'tribals' from transferring lands including structures raised thereon in favour
of 'non-tribals' in the Scheduled areas. It is in this context that appellants
who are 'non-tribals' have mounted an assault on the constitutionality of the
impugned provisions by recourse to the plea that these are violative of Article
19(1)(f) of the Constitution of India. It is alleged that the impugned
provisions impose unreasonable restrictions on the 'non- tribal' holders of
properties in the Scheduled areas.
Art. 15(4)"Nothing in this article or in clause (2) of article 29 shall
prevent the State from making any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes."
Article 46 "Promotion of educational and economic interests of Scheduled
Castes, Scheduled Tribes and other weaker Sections-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 the Scheduled
Tribes, and shall protect them from social injustice and all forms of
1984(3) SCC P. 301 4. 1985(l)SCC 479.
The challenge rooted in Article 19(1)(f) cannot survive after the repeal of the
said Article with effect from June 20, 1979 by virtue of the 44th Amendment. It
cannot survive inasmuch as the doctrine of eclipse would come into play.
the same, it needs to be examined as it is understood that numerous
transactions have taken place during the interregnum. More so as the matter is
of vital importance from the platform of the welfare of the 'tribals' whose
welfare had exercised the minds of the Founding Fathers in shaping the
Constitution as evidenced by Article 15(4) and Article 46 thereof. The question
of questions then is whether the impugned provisions prohibiting not only tribals
hut also 'non-tribals' from transferring their lands and properties in the
Scheduled areas to 'non-tribals' are ultra vires Article 19(1)(f). The impugned
provisions have been assailed on the ground of their alleged 'unreasonableness.
order to succeed in their challenge the appellants will have to identify the
obnoxious components or factors of the impugned provisions.
submissions have been urged in order to answer the question as to 'why' 'how'
and in 'what manner' the impugned provisions are branded as unreasonable:
prohibition imposed on the- 'tribals' restraining them from transferring lands
and properties to 'non-tribals' is understandable inasmuch as the objective is
to ensure that the total extent of properties held by the tribals is not
diminished. However, there is no rational basis for restraining transfer of
properties from 'non-tribals' to 'non-tribals' as such transfer does no more
than substitute one 'non-tribal' by another 'non-tribal' and does not in any
manner diminish the extent of properties held by the 'tribal'.
prohibition against transferring the properties to 'non tribals' being in
absolute terms, a 'non-tribal' cannot even raise a loan on his properties even
in the event of the 'non- tribal' being under economic compulsion to do so.
not possible to accede to any of the aforesaid submissions. As highlighted
earlier, originally all the lands in these tracks were owned by the 'tribals'.
With the advent of the 'non-tribals' in the late 19th Century and early 20th
Century, the lands changed hands from 'tribals' to 'non-tribals'. This change
of ownership was a result of exploitation arising: (1) in the context of money
lending operations and (2) in the context of dubious and unconscionable
dealings in the 456 course of trade. The 'non-tribals' had so often
circumvented the legislation enacted in order to protect the 'tribals' by
recourse to benami transactions, and by recourse to dubious devices. The poor
ignorant, illiterate, and unsophisticated tribals had succumbed to the wiles of
the economically stronger and unscrupulous 'non-tribals'. A legislation which
in essence and substance aims at restoration to the 'tribals' of the lands
which originally belonged to the 'tribals' but which passed into the hands of
'non-tribals' in the aforesaid background certainly cannot be characterised as
unreasonable). The scanning must be done through the objective lens of the
Court representing the collective conscience of the community and not through
the tinged lens of appellants whose economic interests may be prejudicially
affected by the impugned provisions. In other words, the Court examining the
matter from the perspective of the Constitutional mandate armed with the
criterion of objectivity and overall interest of the community at large must be
satisfied that the restrictions are unreasonable.
matter of fact it would be unreasonable and unfair to hold that the impugned
provisions are unreasonable on this account. Surely it is not unreasonable to
restore upto the 'tribals' what originally belonged to them out of which they
were deprived as a result of exploitative invasion on the part of 'non-tribals'.
In the first place should lessons not be drawn from past experience to plug the
loop-holes and prevent future recourse to devices to flout the law? The
community cannot shut its eyes to the fact that the competition between the 'tribals'
and the 'non-tribals' partakes of the character of a race between a handicapped
one-legged person and an able bodied two legged person.
transfer by 'non-tribals' to 'non-tribal 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.
provisions merely command that if a land holder voluntarily and on his own
volition is desirous of alienting the land, he may do so only in a favour of a
'tribal'. It would be adding insult to injury to impose such a disability only
on the tribals (the victims of oppression and exploitation themselves) and discriminate
against them in this regard whilst leaving the 'non-tribals' to thrive on the
fruits of their exploitation at the cost of 'tribals'.
'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 457 such lands, to 'non-tribals'
and make profits at the cost of the tribals. It would not only be 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 counter productive
to do so. It must also be emphasized that to freeze the pool of lands available
to the 'tribals' at the present level is virtually to diminish the pool.
is no escape from this outcome because the realities of life being what they
are with the population increase amongst the tribals remaining unfrozen,
increase in their population will automatically diminish the size of their pool
if the same is frozen. No unreasonableness therefore is involved in making the
prohibition against transfer to 'non- tribals' applicable to both the 'tribal'
as also to the non- tribal' owners in the scheduled area. As a matter of fact
it would have been unreasonable to do otherwise. In the absence of protection,
the economically stronger 'non-tribals' would in course of time devour all the
available lands and wipe out the very identity of the tribals who cannot
survive in the absence of the only source of livelihood they presently have. It
is precisely for this reason that the Architects of the Constitution have with farsight
and foresight provided in paragraph 5(2) of Fifth Schedule that the Governor
may make regulations inter alia "prohibiting or restricting the transfer
of land in the scheduled areas notwithstanding any provision embodied in the
Constitution elsewhere". And as has emerged from the foregoing discussion,
it is unreasonable to restrict the prohibition against transfer to 'tribals'.
It has to be made comprehensive enough to embrace the 'non-tribals' as well.
With the improvement in the economic conditions of the 'tribals', there would
not be much difficulty in finding 'tribal' purchasers. Besides, Section 3(1)(c)
thoughtfully provides even for the contingency of not being able to find a
'tribal' willing or prepared to purchase the property. This provision obliges
the State Government to acquire the property on payment of compensation as
provided therein. One can envisage that some hardship would be occasioned to
the owners to lands located in the scheduled areas. But such hardship would
operate equally on the 'tribals' as well as the 'non-tribals'. Such hardship
notwithstanding keeping in mind the larger perspective of the interest of the
community in its entirety in the light of the foregoing discussion, the
restrictions cannot be condemned as unreasonable. More so if the factor that
the original acquisition by `non-tribals' from 'tribals' was polluted by the
sins of exploitation committed by the non-tribals' is not ignored.
The next submission is built on the premise that the impugned A provision does
not permit the owner even to raise a loan on the security of the land owned by
him. The submission overlooks the amendment introduced by Section 3A(1)1
inserted by Regulation 1 of 1971. True, this provision was introduced after a
few months. But then in none of these appeals a grievance is voiced that any of
the writ petitioners in fact wanted to raise a loan, but could not do so,
during this time-bracket of a few months. In any case the challenge can no
longer survive, with the introduction of Section 3A.
argument which did not succeed in the High Court has been hopefully persisted
with in the Court. The expression "Land" has been used in its
restricted sense in paragraph 5(2)(a) of Schedule V and therefore the impugned
provisions prohibiting the transfer of lands along with structures thereon by
employing the expression "immovable property" is not in accordance
with law. Such is the argument. This argument is devoid of merit for two
there is no reason to believe that 'land' has not been employed in its legal
sense. The expression 'land' in its legal sense is a comprehensive expression
which is wide enough to include structures, if any, raised thereon. While this
proposition hardly needs to be buttressed, support can be sought from the
Dictionary of English Law.' LAND, in its restrained sense, means soil, but in
its legal acceptation it is a generic term, comprehending every species of
ground, soil or earth, whatsoever, as meadows, pastures, woods, moors, waters,
marshes, furze, and heath; it includes also houses, mills, castles, and other
buildings; for with the conveyance of the land, the structures upon it pass
also. And besides an indefinite ex tent upwards, it extends downwards to the
Special provision in respect of mortgages without possession: Notwithstanding
anything contained in this Regulation or in any enactment, rule or law inforce
in the Agency tracts, (1) any person whether or not such person is member of a
Schedule Tribe, may, subject to the provisions of Clause (2) mortgage without
possession, any immovable property situated in the Agency tracts, to any co-
operative Society including a land mortgage bank, or to any bank or other
financial institution approved by the State Government.
1959 Edition-Vol. 2. p. 1053 by Earl Jowitt.
hence the maxim, Cujus est solum ejus est usque ad caelum et ad inferos; or,
more curtly expressed, Cujus est solum A ejus est altum (Co . Litt. 4a)"
"Words And Phrases Judicially Defined:1 The word 'land' would be variously
understood by different persons. To a farmer the word 'land' would not mean his
farm buildings; to a lawyer the word would include every thing that was upon
the land fixed immovably upon it. Smith v. Richmond,  A.C. 448, per Lord Halsbury, L.C., at p. 448." "The
Law Lexicon:2 The word "land" is a comprehensive term, including
standing trees, buildings, fences, stones, and waters, as well as the earth we
stand on. Standing trees must be regarded as part and parcel of the land in
which they are rooted and from which they draw their support." D Secondly,
to interpret the expression 'land' in its narrow sense is to render the
benevolent provisions impotent and ineffective. In that event the prohibition
can be easily circumvented by just raising a farm house or a structure on the
land. The impugned provisions were inserted by the Amending Regulation
precisely to plug such loopholes and make the law really effective. The High
Court was perfectly justified in repelling this meritless plea. It is therefore
not possible to accede to this submission.
meritless in the submission that the presumption embodied in section 3(1)(b) is
unreasonable. The High Court has unhesitatingly negatived this plea. The High
Court has reasoned:
regard to the presumption, which is impugned, it is a rebuttable presumption
and a rule of evidence. The non-tribals who have acquired the lands, and
properties of the tribals could be reasonably expected to disclose their title
to the properties. This also accords with the rule of evidence, that when any
fact is specially within the knowledge of any person the burden of proving that
fact is upon him 1. By Roland Burrows-Vol. III 1y944 Edition p. 206.
2 . By
P. Ramanatha Aiyar-Reprint Edition 1487-p. 700.
106 of the Indian Evidence Act. The tribals are mostly ignorant persons, and
naturally suffer from in evitable handicaps in the matter of setting up or
proving their rights to lands, and property which they had lost." The reasoning
is impeccable and faultless. The plea must accordingly fail.
appeals must therefore fail and be dismissed. No costs.