The Dy.
Collector & Anr Vs. S. Venkata Ramanaiah & Anr [1995] INSC 506 (18 September 1995)
Majmudar
S.B. (J) Majmudar S.B. (J) Bharucha S.P. (J) Faizan Uddin (J) S.B. Majmudar, J.
CITATION:
1996 AIR 224 1995 SCC (6) 545 JT 1995 (7) 1 1995 SCALE (5)521
ACT:
HEAD NOTE:
W I T
H [C.A. No.6/91; C.A. No. 8422 of 1995 (Arising out of S.L.P.(C) No.10746 of
1981); C.A. No. 8423 of 1995 (Arising out of S.L.P.(C) No.1041 of 1986); and
C.A. No. 8424 of 1995 (Arising out of S.L.P.(C) No. 2407 of 1986)]
Leave
granted in S.L.P. (C) Nos. 10746 of 1981, 1041 of 1986 and 2407 of 1986.
In
this group of matters a common question arises for our consideration. It is as under
:
"Whether
the provisions of the Andhra Pradesh (Scheduled Areas) Land Transfer Regulation
of 1959 (hereinafter referred to as `Regulation') and the subsequent Regulation
No.II of 1963 and Regulation No.I of 1970 have retrospective effect and can
affect transfers made prior to the coming into force of the said
Regulations." We have heard learned counsel appearing for the respective
contesting parties in this group of matters.
Accordingly
all these appeals are being disposed of by this common judgment.
A few
facts leading to these appeals may be noted at the outset.
Facts
leading to Civil Appeal no. 2909 of 1977 The appellant authorities, namely,
Deputy Collector (Tribal Welfare) and the District Collector functioning in Srikakulam
District in the State of Andhra Pradesh, have brought in challenge a decision
of the Andhra Pradesh High Court allowing Writ Petition No. 4434 of 1975 moved
by the respondents, praying for a writ of mandamus under Article 226 of the
Constitution of India for quashing and setting aside the orders of the
appellant authorities passed under the provisions of the Regulation. The respondents,
writ petitioners before the High Court had purchased the land in their
occupation on 19th June
1919 from a non-tribal
named Pappala Appanna. After the promulgation of the Regulation in 1959 as
amended by Regulation I of 1970 the competent authority being agent of the
Government initiated proceedings against the respondents on the ground that the
said sale in their favour was hit by Section 3 (1) (a) of the Regulation and,
therefore, the respondents were liable to be evicted from the land in question
which had to be restored to the original vendor or his successor in interest.
After hearing the respondents the Deputy Collector (Tribal Welfare) passed an
order of eviction against the respondents. The respondents' appeal before the
District Collector failed. And that is how the respondents filed writ petition
before the High Court. A Division Bench of the Andhra Pradesh High Court by the
judgment under appeal allowed the writ petition by taking the view that the
provisions of the Regulation were not retrospective in nature and could not
affect past transactions like the transaction in question which was reflected
by Registered Sale Deed dated 19th June 1919 even though the land was situated
in Srikakulam District which fell within the definition of `Agency Tracts' as
laid down by Section 2 (a) of 1959 Regulation. It was, therefore, held that the
said transaction could not be processed or scrutinised by the authorities
functioning under the Regulation and they had no jurisdiction to treat the said
transaction to be null and void under the Regulation. Writ Petition was
accordingly allowed. The authorities as appellants before this Court have filed
this appeal having obtained special leave to appeal from this Court against the
impugned judgment of the Division Bench of the High Court.
Facts
leading to Civil Appeal No.6 of 1991 In this appeal the authorities functioning
under the very same Regulation have brought in challenge the order passed by
the Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 121 of
1985 which came to be dismissed by the Appellate Court and whereby the order of
the learned Single Judge in Writ Petition No. 1882 of 1978 came to be
confirmed. The first respondent herein was a protected tenant of Survey No.97
admeasuring 9 acres and 4 guntas and Survey No. 98 admeasuring 8 acres and 8 guntas
situated at Chirrankunta Village of Asifabad Taluk of Adilabad District of
Andhra Pradesh. One Siddamshetti Narayana was the Pattedar of the said land.
Respondent No.1 was cultivating the said land as his tenant. The Pattedar of
this land was a tribal. He had transferred this land for cultivation as a
tenant to respondent No.1 and it was noted in Khasra Pahani of year 1954-55
through mutation.
Respondent
no.1 is a non-tribal. On the basis of the said protected tenancy created in favour
of respondent no.1 by the tribal, respondent no.1 was declared owner of the
said land on 1.1.1975 under Section 38 (E) of the Andhra Pradesh (Telengana
Area) Tenancy & Agricultural Act, 1950 and a certificate was issued under
Section 38 (E) in his favour.
The
Special Deputy Collector (Tribal Welfare), Adilabad, issued a notice to the
first respondent stating that the first respondent was in possession of the
said land. The transfer of the said land in his favour contravened the
provisions of Section 3(1) of the Regulation. He was, therefore, asked to show
cause as to why he should not be ejected from the said land. Ultimately order
of ejectment was passed against him by the Special Deputy Collector and the
lands were ordered to be restored to respondent nos.2 to 4. Respondent no.1
unsuccessfully went in appeal where stay was refused. He thereafter filed a
writ petition in the Andhra Pradesh High Court. A learned Single Judge of the
High Court allowed the writ petition on 8.2.1984 holding that the provisions of
the Regulation as extended to Adilabad District in ex-Telengana region by
Regulation II of 1963 could not affect the transfer in favour of respondent
no.1 which was made years back and when that transfer was valid and was
supported by certificate of ownership granted to respondent no.1 under Section
38 (E) of the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands
Act, 1950. The present appellant authority carried the matter in appeal before the
Division Bench of the High Court as noted earlier. That Writ Appeal came to be
dismissed by the Division Bench by its order dated 11th February 1985. It is this order of the Division Bench which is brought in
challenge in the present appeal after obtaining special leave to appeal from
this Court.
Facts
leading to Civil Appeal No. 8422/95 arising out of S.L.P.(C) No. 10746 of 1981
This appeal is taken out by the Collector and Special Deputy Collector of Adilabad
District in Andhra Pradesh.
They
have brought in challenge by special leave the judgment of the Full Bench of
the Andhra Pradesh High Court rendered in Writ Petition No. 4204 of 1977 and
group decided on 21st
August 1981.
Respondent No.3 herein had purchased the disputed lands being Survey No. 33
measuring 0 acres and 17 cents and Survey No.34 measuring 13 acres and 02 cents
situated at Nandagaon Village in Adilabad Taluk of Adilabad District of Andhra Pradesh.
Said area was declared to be a scheduled area as per the provisions of
Regulation I of 1959 as amended by Regulation II of 1963, being the ex-Telengana
area. These lands were purchased by respondent no.3 under an Agreement to Sell
dated 10th May 1955 from one Jaithu, a member of the
scheduled tribe. Respondent nos.1 and 2 herein are said to be cultivating the
said land as tenants of the third respondent. The land, Survey No.8 was
purchased under an Agreement of Sale dated 8th March 1963 by the brother of the first
respondent from the 4th respondent, who is a daughter of the tribal Jaithu. Respondent
nos.3 and 4 are sons and daughters of Jaithu. They filed a petition under
Section 3(2) of the Regulation I of 1959 before the Special Deputy Collector
alleging that the transfer of the lands under the Agreements of Sale
contravened the provisions of Section 3(1) of the Regulation and that they were
entitled to be put back in the possession of the said lands. Special Deputy
Collector accepted their request and held that respondent nos.1 to 3 were in
illegal possession of the lands and they were liable to restore the possession
to the heirs of the original tribal, that is, respondent nos.4 and 5. This
order was confirmed in appeal preferred by respondent nos. 1 to 3 to the
District Collector, an agent to the State Government. It was thereafter that respondent
nos.1 to 3 filed writ petition No. 4204 of 1977 seeking a writ of mandamus for
quashing the orders of the Special Deputy Collector (Tribal Welfare) and the
Appellate Collector. This writ petition and other companion matters were
ultimately placed for disposal on reference by a Division Bench of the High
Court before a Full Bench. The Full Bench of the High Court speaking through Ramachandra
Rao, J., took the view that the provisions of the Regulation were not
retrospective in nature and could not invalidate completed past transactions
entered into in the scheduled area prior to the coming into force of Regulation
I of 1959 as amended by Regulation II of 1963 which applied to Adilabad area
from 1.12.1963. Writ Petition was accordingly allowed and the impugned orders
were quashed. As noted earlier the said decision of the Full Bench is brought
on the anvil of scrutiny by the appellant authorities in this appeal.
Facts
leading to Civil Appeal No.8423/95 arising out of S.L.P.(C) No. 1041 of 1986
This appeal is moved by Special Deputy Collector Tribal Welfare, and the
District Collector, Adilabad, being aggrieved by the judgment and order of the
Andhra Pradesh High Court. In Writ Appeal No.52 of 1980 decided on 14th October
1985 by the impugned judgment the Division Bench of the High Court confirmed
the order passed by learned Single Judge of the High Court in Writ Petition
No.4882 of 1977 decided on 13th June 1979. The learned Single Judge allowed the
writ petition moved by respondent herein and set aside the orders passed by the
authorities below under the Regulation. Respondent had purchased in 1942 10
acres and 34 guntas of Survey No.92 of Sungapur Village in Asifabad Taluk of Adilabad
District from the father of one Madavi Nanu who was original respondent no.1 in
the writ petition but who was not subsequently joined in the further
proceedings in writ appeal as respondent. Madavi's father was a tribal.
Pursuant
to the said sale in favour of respondent his name was recorded as occupant in
the land records and in the Khasra Pahani of the year 1954-55 and in the
subsequent Pahani Partraks. The Special Deputy Collector (Tribal Welfare) Adilabad
issued a notice to respondent no.3 under Section 3(1) of the Regulation which
came into force in the Telengana area on 1.12.1963. Respondent was called upon
to show cause why he should not be evicted from the said land on the ground
that possession of the respondent was in contravention of provisions of Section
3(1) of the Regulation. Ultimately the said proceedings terminated against the
respondent. He was ordered to be evicted from the land in question and the land
was ordered to be restored to aforesaid Madavi. He unsuccessfully carried the
matter in appeal and thereafter filed Writ Petition No.4882 of 1977 in Andhra
Pradesh High Court. Said writ petition was allowed by the learned Single Judge
on 13th June 1979. The learned Judge took the view that the provisions of the
Regulation did not affect the past transaction of 1942 in favour of respondent.
Appellants carried the matter in Writ Appeal which came to be dismissed on 14th October 1985. As stated above the said decision
of the Division Bench in Writ Appeal No.52 of 1980 is the subject matter of the
present appeal.
Facts
leading to Civil Appeal No. 8424/95 arising from S.L.P.(C) No.2407 of 1986 In
this appeal appellant is one T. Rajaiah who has brought in challenge the order
passed by the Division Bench of the Andhra Pradesh High Court dismissing
appellant's Writ Appeal No.406 of 1977 on 16.11.1985 and confirming the order
of the learned Single Judge in Writ Petition No.2449 of 1977 dated 14th July
1977. The appellant purchased 17 acres of Survey No.28 situated at Dhanora Village in Asifabad Taluk of Adilabad District of Telengana area of
Andhra Pradesh. He had purchased said land on 3.6.1951 from one Mesram Gangu
who was a tribal. The third respondent herein being daughter of said Mesram Gangu
filed an application under Section 3(1) of the Regulation for restoration of
possession of the land on the ground that the appellant had purchased the land
from a tribal and, therefore, transaction in his favour was null and void under
the said provision. The Special Deputy Collector, Adilabad, after hearing the
parties, by his order dated 4th December 1975
directed ejectment of appellant and restoration of land in favour of respondent
no.3 herein and one Naithan Bai another daughter of Mesram Gangu. The appellant
unsuccessfully carried the matter in appeal and then filed Writ Petition
No.2449 of 1977 in the High Court against respondent nos.1 and 2 being the
authorities whose orders were challenged and respondent no.3, the original
applicant before the respondent no.2. The said writ petition was dismissed by
the learned Single Judge on the ground that the appellant had an alternative
remedy by way of revision before State authorities under the Regulation. It is
this decision of the learned Single Judge which came to be confirmed by the
Division Bench which dismissed the appellant's writ appeal as aforesaid. That
is how after obtaining special leave to appeal from this Court the appellant
has filed the present appeal.
Rival
Contentions Mrs. Amareshwari, learned senior counsel appearing for the
appellants-Deputy Collector and Collector in C.A. No.2909/77, C.A. No.6/91,
Civil Appeal arising from S.L.P.(C) No.10746/81 and Civil Appeal arising from
S.L.P.(C) No.1041/86, contended that the provisions of the Regulation I of 1959
as well as the amending Regulation II of 1963 and Regulation I of 1970 had
retrospective effect and consequently whether the transactions pertaining to
the lands in question situated within the scheduled tracts covered by the
Regulations were entered into between tribal transferors and non-tribal
transferees or even for that matter between non-tribal transferors and
non-tribal transferees at any time in past got covered by the prohibitory and
invalidating sweep of Section 3(1) of the Regulation, that the Full Bench had
committed a patent error of law in treating these provisions as purely
prospective.
She
alternatively contended that even assuming that the provisions of these
Regulations were prospective in nature the concerned transferees after the
coming into force of these Regulations in the scheduled areas were not entitled
to continue in possession as their possession became invalid at least from the
dates on which these Regulations applied to the areas where these lands were
situated. Hence on that ground also the transactions were liable to be hit by
Section 3(1) of the Regulation. Consequently the orders of eviction as passed
by the authorities below were rightly passed and could not have been interfered
with by the High Court.
Learned
advocates for the concerned contesting respondents on the other hand submitted
that the provisions of the Regulations in question are purely prospective in
nature as there is no express provision made in these Regulations to make them
retrospective from any back date, nor do the wording of these Regulations
exhibit any necessary intendment about retrospectivity. Consequently the High
Court was right in holding these Regulations purely prospective in nature and
therefore concluding that they could not affect the vested and accrued rights
in favour of the transferees pursuant to old transactions in their favour which
had taken effect years prior to the coming into operation of these Regulations.
Learned
advocate appearing for the appellant in Civil Appeal arising out of S.L.P.(C)
No.2407 of 1986 submitted that the High Court had patently erred in dismissing
his writ petition only on the ground of alternative remedy and when the
Regulation itself was not retrospective in character it could not affect the
transaction in his favour entered into years back on 3.6.1951 even though the
land was situated in Adilabad District which ultimately got covered by the
Regulation. And that if this Court takes the view that the Regulation was
prospective in nature and did not affect past transactions then instead of
relegating the appellant to the remedy of revision before the State, his writ
petition which was dismissed by the High Court may be allowed on merits. Mrs. Amareshwari,
learned senior counsel for the respondent-authorities reiterated her
contentions in the other appeals that the transaction was hit by the Regulation
which was retrospective in effect and, therefore, appellant's writ petition be
treated as dismissed also on merits and accordingly his appeal may be
dismissed.
Before
we deal with the question about the retrospectivity of the Regulation in
question it is necessary to note a few background facts leading to the
enactment of the Regulation.
Background
facts leading to enactment of the Regulation In the Andhra area, prior to the
formation of the State of Andhra Pradesh 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
tracts areas except in favour of members of hill tribes conferring upon the
persons belonging to the Scheduled Tribes certain benefits. After the
Constitution of India came into force, Article 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 Scheduled 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
tribal 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 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.
Under
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 on with
the previous consent in writing of the Agent. The said Regulation further
empowered the Agent to decree 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 were 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 member 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 was 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 inter-alia, the following changes, namely:
(i) A
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;
(ii)
Transfers of land in Scheduled Areas in favour of non-tribals shall be wholly
prohibited in future;
(iii)
Non-tribals holding lands in the Scheduled Areas shall be prohibited from
transferring their lands in favour of persons 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 appropriate
compensation.
Clause
(a) of substituted section 3(1) 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 of 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
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 partition 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 conditions. The Governor further framed a
regulation to amend the Andhra Pradesh Scheduled Areas Land Transfer Regulation,
1959, being A.P. Regulation No.I 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
3-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. The 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.
It may
be stated that a Division Bench of this Court consisting of M.P. Thakkar and
B.C. Ray, JJ., by their decision dated 14th July 1988 in Civil Appeal
No.2299-2300 of 1972 upheld the validity of the provisions of the Regulation in
so far as they sought to declare as void any transfer of immovable property in
the agency tracts entered into even by a non-tribal in favour of another
non-tribal.
Even
though the aforesaid provisions of the Regulations represent a species of
welfare legislation for protecting the illiterate tribals from exploitation at
the hands of non-tribals the short question which arises for our consideration
is as to whether these beneficial provisions have any retrospective effect.
Our
conclusion and the reasons for the same Having given our anxious consideration
to the rival contentions canvassed for our consideration by the learned counsel
appearing for the respective parties we have reached the conclusion that the
Full Bench of the High Court was perfectly justified in taking the view that on
the express language of the Regulation, it was prospective in nature and even
by necessary intendment it could not be posited that the framer of the
Regulation wanted to give it any retrospective effect. Reasons for our
aforesaid conclusion are obvious. The Regulation I of 1959 originally applied
only to scheduled areas of East Godavari, West Godavari, Viskahapatham and Srikakulam
districts. By amending Regulation II of 1963, it was extended to Telengana
region comprising of Adilabad, Warangal, Khammam
and Mahbubnagar districts of Andhra Pradesh. That extension to districts in Telengana
area became effective from 1.12.1963. Clause (2) (a) of the Regulation defines
`Agency Tracts' to mean, `the areas in the districts of East Godavari, West Godavari,
Viskhapatham, Srikakulam, (I) Adilabad, Warangal, Khammam and Mahbubnagar
declared, from time to time, as Scheduled Areas by the President under
sub-paragraphs (I) of paragraph 6 of the Fifth Schedule to the constitution'.
The term `transfer' is defined by Clause (2)(g) of the Regulation to mean,
`mortgage with or without possession, lease, sale, gift, exchange or any other
dealing with immovable property, not being a testamentary disposition and
includes a charge on such property or a contract relating to such property in
respect of such mortgage, lease sale, gift, exchange or other dealing'. Then
follows Section 3(1)(a) which is material for our present purpose. It is as
under:
"3.(1)(a)
- Notwithstanding any thing contained 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 Schedule Tribe,
shall be absolutely null and void, unless such transfer is made in favour of a
person, who is a member of a Scheduled Tribe or a society registered or deemed
to be registered under the A.P. Cooperative Societies Act, 1964, which is
composed solely of members of the Scheduled Tribes." It may be noted that
the words `whether or not such person is a member of a Scheduled Tribe' as
found in Section 3(1)(a) were inserted by Regulation I of 1970 meaning thereby
prior to the amending Regulation coming into force Section 3(1)(a) hit
transfers of immovable property situated in agency tracts by only a member of a
scheduled tribe and if such transfer was made by a non-tribal such transaction
was outside the sweep of Section 3(1)(a). A close reading of Section 3(1)(a)
indicates that after coming into force of the said provision any transfer of
immovable property which is in the sweep of Section 3(1)(a) would be absolutely
null and void unless the transfer falls within the excluded category as
mentioned in the said provision. This Section nowhere indicates either
expressly or even impliedly that it is meant to adversely affect completed
transactions of transfer which might have taken place prior to the coming into
force of Section 3(1)(a) of the Regulation. Mrs. Amareshwari, learned senior
counsel could not effectively urge that there was any such express indication
of retrospectivity in the said provision or any other part of the Regulation.
It is obvious that if Section 3(1)(a) was to apply retrospectively to hit even
past transfers it would have mentioned with reference to transfer of immovable
property as under :
Whether
effected before or after coming into operation of this Regulation." Such
or similar words are conspicuously absent. Therefore, Section 3(1)(a) as it
stands cannot be said to have any express retrospective effect. In this
connection we may also mention one submission canvassed by learned senior
counsel for the authorities. She contended that Section 3 sub- section (1)(b)
indicates such a retrospective effect. The said provision which is noted
earlier reads as under :
"3(1)(b).
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 a Scheduled
Tribe, shall be presumed to have been acquired by such person or his
predecessor in possession through a transfer made to him by a member of a
Scheduled Tribe." It is difficult to appreciate how this provision can be
of any assistance to the learned senior counsel, for urging any retrospective
operation of Section 3. Section 3(1)(b) enacts a rule of evidence which may be
pressed in service in a properly constituted enquiry in cases where the main
provision of Section 3(1)(a) gets attracted meaning thereby if in connection
with any transfers of immovable property situated in Agency tracts effected
after the coming into operation of Section 3(1)(a), a question arises whether
the transfer was made by a transferor who was a member of a Scheduled Tribe and
if it is shown that such transferred land was in possession of a non-tribal, a rebuttable
presumption would arise under Section 3(1)(b) that such transferor was a member
of Scheduled Tribe. This provision has nothing to do with any retrospective
effect of Section 3(1)(a) itself nor does it even remotely indicate that
because of the rule of evidence enacted in Section 3(1)(b), even prior
completed transfers would also be covered by the sweep of Section 3(1)(a).
Next
Mrs. Amareshwari submitted that at least by necessary implication such retrospectivity
can be culled out and for that purpose she invited our attention to Sections 9
and 10(1) of the Regulation. The said provisions read as under :
"9.
The Agency Tracts Interest and Land Transfer Act, 1917 (Madras Act I of 1917)
is hereby repealed to the extent to which any of the provisions contained
therein correspond, or are repugnant, to any of the provisions contained in
this Regulation.
10.
(1) The provisions contained in this Regulation shall not affect --- (a) Any
transfer made or sale effected in execution of a decree before the commencement
of the Agency Tracts Interest and Land Transfer Act, 1917 (Madras Act I of
1917), or (b) Any transfer made or sale effected in execution of a decree after
the commencement of the said Act and before the commencment of this Regulation,
if such transfer or sale was valid under the provisions of the said Act."
We fail to appreciate how the said Sections can be of any avail to the learned
senior counsel for establishing the case of implied retrospective effect of the
Regulation.
Section
9 deals with the repeal of the erstwhile Agency Tracts Interest and Land
Transfer Act, 1917. It is not in dispute between the parties that the said Act
of 1917 did not apply to Telengana area. Consequently reference to Section 9 in
connection with lands situated in Telengana area becomes irrelevant. Similarly
Section 10 which effects savings in cases where the earlier Act of 1917 which
had applied stood repealed by Section 9, also becomes irrelevant. However, so
far as areas which were earlier governed by the Act of 1917 are concerned, even
for them, we fail to appreciate, how Section 9 can be pressed in service by
learned senior counsel for the appellant authorities to cull out an implied
retrospective effect of the Regulation.
In
order to show that Section 3 of the Regulation had any implied retrospective effect
provisions pertaining to repeal and savings contained in Sections 9 and 10
would be of no assistance. No other provisions of the Regulation could be
pressed in service by learned senior counsel for supporting her contention that
Section 3(1) (a) was retrospective by any necessary implication. It is obvious
that transactions which have taken place years back prior to the very parent
Regulation No.I of 1959 seeing the light of the day, and which had created
vested rights in favour of the transferees could not be adversely affected by
the sweep of Section 3(1). It cannot be said to have any implied retrospective
effect which would nullify and confiscate pre-existing vested rights in favour
of the concerned transferees.
transfers
in whose favour had become final and binding and were not hit by the then
existing provisions of any nullifying statutes. In this connection we may
usefully refer to Francis Bennion's Statutory Interpretation, Second Edition at
page 214 wherein the learned author, in Section 97, deals with retrospective
operation of Acts. The learned author has commented on this aspect as under :
"The
essential idea of a legal system is that current law should govern current
activities. Elsewhere in this work a particular Act is likened to a floodlight
switched on or off, and the general body of law to the circumambient air.
Clumsy though these images are, they show the inappropriateness of
retrospective laws. If we do something today, we feel that the law applying to
it should be the law in force today, not tomorrow's backward adjustment of it.
Such,
we believe, is the nature of law.
Dislike
of ex post facto law is enshrined in the United States Constitution and in the
constitutions of many American states, which forbid it.
The
true principle is that lex prospicit non respicit (law looks forward not back).
As Willes J said, retrospective legislation is `contrary to the general
principle that legislation by which the conduct of mankind is to be regulated
ought, when introduced for the first time, to deal with future acts, and ought
not to change the character of past transactions carried on upon the faith of
the then existing law.' Retrospectivity is artificial, deeming a thing to be
what it was not.
Artificiality
and make-believe are generally repugnant to law as the servant of human
welfare. So it follows that the courts apply the general presumption that an
enactment is not intended to have retrospective effect.
As
always, the power of Parliament to produce such an effect where it wishes to do
so is nevertheless undoubted. The general presumption, which therefore applies
only unless the contrary intention appears, is stated in Maxwell on the
Interpretation of Statutes in the following emphatic terms: `It is a
fundamental rule of English law that no statute shall be construed to have a
retrospective operation unless such a construction appears very clearly in the
terms of the Act, or arises by necessary and distinct implication.' Maxwell's
statement has received frequent judicial approval. It is however too
dogmatically framed, and describes as a rule what (for reasons stated in Code s
180) is really no more than a presumption which, in the instant case, may be
outweighed by other factors. Where, on a weighing of the factors, it seems that
some retrospective effect was intended, the general presumption against retrospectivity
indicates that this should be kept to as narrow a compass as will accord with
the legislative intention." Mr. Bobde, learned counsel appearing for the
respondents as amicus curiae at our request, invited our attention to a
decision of this Court in the case of R.
Rajagopal
Reddy (Dead) by LRs. and Others v. Padmini Chandrasekharan (Dead) by LRs. (1995
(2) SCC 630) wherein one of us (Majmudar, J.) speaking for a Three Judge Bench
on the question of retrospective effect of a statutory provision observed as under
:
"...
Even otherwise, it is now well settled that where a statutory provision which
is not expressly made retrospective by the legislature seeks to affect vested
rights and corresponding obligations of parties, such provision cannot be said
to have any retrospective effect by necessary implication. In Maxwell on the
Interpretation of Statutes, 12th Edn. (1969), the learned author has made the
following observations based on various decisions of different courts,
specially in Re: Athlumney, (1898) 2 Q.B. at pp. 551, 552 :
`Perhaps
no rule of construction is more firmly established than this - that a
retrospective operation is not to be given to a statute so as to impair an
existing right or obligation, otherwise than as regards matters of procedure,
unless that effect cannot be avoided without doing violence to the language of
the enactment. If the enactment is expressed in language which is fairly
capable of either interpretation, it ought to be construed as prospective
only.' The rule has, in fact, two aspects, for it, `involves another and
subordinate rule, to the effect that a statute is not to be construed so as to
have a greater retrospective operation than its language renders necessary.' '
In the case of Garikapati Veeraya v. N. Subbiah Choudhry (AIR 1937 SC 540 at
p.553, para 25) Chief Justice S.R. Das speaking for this Court has made the
following pertinent observations in this connection :
`The
golden rule of construction is that, in the absence of anything in the
enactment to show that it is to have retrospective operation, it cannot be so
construed as to have the effect of altering the law applicable to a claim in
litigation at the time when the Act was passed.' " Therefore, we agree
with the submission of Mr Bobde, learned counsel for respondents, that the
provisions of Section 3(1) of the Regulation are purely prospective in nature
and do not affect past transactions of transfers effected between tribals and
non-tribals or between non-tribals and non- tribals themselves in the Agency
Tracts at a time when neither Regulation I of 1959 nor Regulation II of 1963 or
Regulation I of 1970 was in force. Such past transactions remained untouched by
the sweep of the aforesaid subsequently enacted Regulations.
Mrs. Amareshwari,
learned senior counsel in the alternative contended that even assuming that all
these Regulations do not adversely affect past transactions even then, after
the coming into force of these Regulations in the concerned Agency Tracts, the
possession of erstwhile transferees would become illegal and get hit by Section
3(1) of the Regulation. It is not possible to agree with this contention for
the simple reason that before the continued possession is found fault with, it
must be shown that the initial entry of the transferee was violative of any
provision of law or that by any subsequent statute such continuance of
possession under an originally valid transaction, would get adversely affected.
Section 3(1) nowhere whispers about such an eventuality. On the contrary,
employment of terminology to the effect, "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 a person who is a member of a Scheduled
tribe" clearly indicates that Section 3(1) (a) seeks to hit only those
transfers which take place after the coming into force of that provision and
when such transfers are found to be absolutely null and void then only the
question of continued illegal possession of such transferee and of evicting
such transferee from the land and restoration of such land to the transferor
would arise under Section 3(2)(a). The said provision reads as under :
"3.(2)(a).
Where a transfer of immovable property is made in contravention of sub-section
(I), the Agent, the Agency Divisional Officer or any other prescribed officer
may, on application by any one interested, or on information given in writing
by a public servant, or suo-motu decree ejectment against any person in
possession of the property claiming under the transfer after due notice to him
in the manner prescribed and may restore it to the transferor or his
heirs." On a conjoint reading of Section 3(1)(a) and Section 3(2)(a), it
becomes clear that the Section seeks to hit the transfers effected after the
Section came into force and possession only under such invalid transfers is
sought to be dealt with for the purpose of eviction of transferees and
restoration of possession to transfers, as the case may be, under Section
3(2)(a) of the Regulation. Consequently, the alternative submission of learned
senior counsel for the authorities that even though transfer of immovable
property in the Agency tracts may not be hit by Section 3(1)(a) still
possession under such transfers could be restored to the original transferor
under Section 3(2)(a), cannot be countenanced. Section 3(2)(a) is a corollary
to Section 3(1)(a) and cannot have any independent role to play. Nor can it
cover any area which is not encompassed by the sweep of Section 3(1)(a). In
this connection Mrs. Amareshwari, learned senior counsel also invited our
attention to two decisions of this Court. Mrs. Amareshwari, learned senior
counsel for the appellant authorities invited our attention to a Constitution
Bench judgment of this Court in Rao Shiv Bahadur Singh and Another v. The State
of Vindhya Pradesh (1953 SCR 1188). In that case the Constitution Bench of this
Court speaking through Jagannadhadas J., had to consider whether prohibition of
Article 20 of the Constitution against convictions and subjections to penalty
would cover ex post facto laws passed before the Constitution was promulgated.
Answering the question in the affirmative it was observed that the prohibition
contained in Article 20 of the Constitution against convictions and subjections
to penalty under ex post facto laws is not confined in its operation to
post-Constitution laws but applies also to ex post facto laws passed before the
Constitution in their application to pending proceedings. We fail to appreciate
how this decision can be of any avail to the learned senior counsel for the
appellant authorities. On the wording of Article 20 the aforesaid view was
taken by the Constitution Bench. The wordings of Section 3(1)(a) read with
Section 3(2)(a) of the Regulation are entirely different and they have to be
construed in their own light. The learned senior counsel Mrs. Amareshwari then
invited our attention to another decision of the Constitution Bench of this
Court in Bishun Narain Mishra v. State of Uttar Pradesh & Others (1965 (1)
SCR 693). In that case Wanchoo J., speaking for the Constitution Bench had to
examine the effect of a rule promulgated by Government of Uttar Pradesh under
Article 309 of the Constitution reducing the age of superennuation of
Government servants from 58 years to 55 years. The appellant before this Court
who got hit by the said rule raised various contentions one of which was that
the rule was retrospective in character and, therefore, bad as no notification
promulgating the rule could be made with retrospective effect. Repelling this
contention it was held by the Constitution Bench that there was no retrospectivity
in the rule. All that it provided was that from the date it came into force the
age of retirement would be 55 years. The rule would operate only for the period
after it came into force. Nor did the proviso make it retrospective. It only
provided as to how the period of service beyond 55 years should be treated in
view of the earlier rule of 1957 which was being changed by the rule of 1961.
The second order issued on the same day clearly showed that there was no
retrospective operation of the rule for in actual fact no Government servant
below 58 years was retired before the date of the new rule i.e. May 25, 1961. Thus the new rule reducing the age
of retirement from 58 years to 55 years could not be held to be retrospective.
It is difficult to appreciate how this judgment can be of any avail to learned
senior counsel for the appellant authorities, because the appellant in that
case continued in Government service and at that time the new rule reducing the
age of superannuation came into force his superannuation was governed by the
new rule reducing the age of superannuation from 58 to 55 years.
There
was no question of any retrospective effect of the said rule. But the new rule
clearly covered the then existing service conditions of Government servants who
were still in service. Section 3(1) of the Regulation cannot be supported on
the ratio of that judgment to nullify vested rights under past completed
transactions. As we have already discussed earlier, Section 3(1)(a) read with
Section 3(2)(a) of the Regulation seeks to hit only those transfers of lands in
Agency tracts which take place after the advent of Section 3(1)(a) of the
Regulation. Possessions under transfers which are beyond the sweep of Section
3(1)(a) cannot be said to have continued under any invalid transfers as
envisaged by Section 3(1)(a). Such possessions obtained under the then existing
old and valid transfers would be outside the ken of the Regulation itself. The
alternative submission canvassed by learned senior counsel for the authorities,
therefore, also has no substance and has got to be rejected.
These
were the only contentions canvassed in support of the appeals preferred by the
authorities under the Regulation. There is no substance in these contentions.
It must be held that as the transfers in these cases were effected years back,
prior to the coming into force of the Regulations in question, they could not
be covered by these Regulations. The authorities acting under the Regulations
had no jurisdiction to deal with them. In the result the Civil Appeal Nos.2909
of 1977; 6 of 1991; Civil Appeal No.8422/95 arising out of S.L.P.(C) No.10746
of 1981 and Civil Appeal No.8423/95 arising out of S.L.P.(C) No.1041 of 1986
will have to be dismissed.
Before
parting with these appeals we have to place on record our appreciation for the
assistance rendered by Mr. Bobde, learned counsel who on our request was good
enough to appear amicus curiae for the respondents in these cases.
So far
as Civil Appeal No.8424/95 arising out of S.L.P.(C) No.2407 of 1986 is
concerned, though the High Court had dismissed the writ petition on the ground
of alternative remedy, in view of our decision on the main controversy and our
finding that the provisions of the Regulation would not hit transaction of
transfers entered into prior to coming into force of the Regulation this appeal
is required to be allowed on merits. In the present case even though the sale
was of the land situated in Adilabad District of Telengana region which was
forming a part and parcel of the Agency tracts, as the transaction was of
3.6.1951, much prior to the coming into force of the Regulation I of 1959 as
amended by Regulation II of 1963 which became effective in Adilabad from
31.12.1963, this transaction was outside the sweep of Section 3(1) of the Regulation.
Consequently no useful purpose would be served by relegating the appellant to
the remedy of revision before the State authorties when this question is
concluded by our present judgment. The appeal is accordingly allowed. The
judgments of the Division Bench of the High Court and that of learned Single
Judge are set aside. Writ Petition filed by the appellant before the High Court
is allowed. The orders of the authorities below against the appellant passed
under Section 3(1)(a) read with Section 3(2)(a) of the Regulation will stand
quashed and set aside. As these appeals are being disposed of on a question of
law and keeping in view the facts and circumstances of the cases, even though
the appeals by the authorities are dismissed and the last appeal moved by T. Rajaiah
arising out of S.L.P.(C) No.2407 of 1986 is allowed, there will be no order as
to costs in all these appeals.
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