TMI Blog2009 (7) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986. Indisputably the Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 (`the 1999 Act'), which inter alia deals with transfer and alienation of agricultural lands. HELD THAT:- We have noticed hereinbefore that the Division Bench of the High Court has upheld the legislative competence of the Legislature of the State of Kerala. We, therefore, really at pains to understand as to how the doctrine of `Colourable Legislation' could be invoked by the learned Judge of the High Court. The Doctrine of `Colourable Legislation is directly connecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India. There exists a Parliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the purpose of amendment of the Act and not for enacting a separate statute which came within the purview of a different entry and a different List. It is furthermore well-known that Article 254 of the Constitution of India would be attracted only in a case where two statutes are enacted under the Concurrent List, viz., one by the State Legislature and the other by the Parliament of India, and not in any other case. VESTED RIGHT VIS-@-VIS ARTICLE 14 - No territory in the State of Kerala has been declared as Scheduled Area within the meaning of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government thought it proper to introduce a suitable legislation which would adequately take care of the interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restriction on transfer by and Restoration of Land to the Scheduled Tribes Act, 1999 was introduced in the State Assembly and the same was unanimously passed by the Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999. While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was for the elected representatives of the people to determine as to whether by reason of the provisions of the 1999 Act the members of the Scheduled Tribe would face dislocation or that it would impinge on their culture connected with their lands. BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT - The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are concerned. The 1975 Act came into force with retrospective effect from 1.01.1982. But, as noticed hereinbefore, the Rules w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not transferred any land at all or otherwise landless, the statute by no stretch of imagination can be treated to be an arbitrary and an unreasonable one. ARTICLE 21 ISSUE - right of tribals to be rehabilitated in their own habitat - We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intra vires. NON-AVAILABILITY OF THE LAND - Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2007 (5) TMI 591 - SUPREME COURT] , the subsequent Act did not contain the words unless a different intention appears . It was held that the later Act was not different from the earlier Act. This Court is required to assume that the Legislature did so deliberately. In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan. AGRICULTURAL AND NON-AGRICULTURAL LAND - Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act. - S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ. JUDGEMENT S.B. SINHA, J. ISSUE 1. Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis-`-vis a subsequent legislation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 Act to dispose off the applications pending before them within 6 months from the said date. The State, however, did not comply with the said directions within the said time frame. Extensions of time were sought for complying with the said directions. By the said process, a period of two years lapsed. Another application for extension of time was filed for implementation of the Act and the High Court granted six months' time but issued certain directions inter alia for the purpose of monitoring the progress of the implementation of the Act. The said conditions are as under:- (i) The State shall ensure that all the applications are disposed of within the extended time. (ii) The State shall immediately communicate copies of this order to the Revenue Divisional Officers of all the Districts for compliance. (iii) The Authorities under the Act, i.e., the Revenue Divisional Officers of the concerned Districts shall file affidavits before this court once in a month showing the progress achieved in the disposal of applications during that month. The first of these affidavit showing the progress-made until 31.12.1995 shall be filed before 15.1.1996. The next of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection to the Revenue Divisional Officers to carry out their duty of restoring possession to the Tribals. (3) The State and the Collectors of the various Districts are directed to make available to the Revenue Divisional Officers the necessary man power and support to carry out the implementation of the orders for restoration passed under the Act. (4) The Revenue Divisional Officers will file statements before this court by 30.9.1996 reporting compliance with direction No.1 An intra court appeal was preferred thereagainst. The matter was referred to a Full Bench. An order of stay was passed relying on or on the basis of a statement made before the Court that amendments to the 1975 Act were proposed to be made. However, as the President of India declined to give his assent to the Bill passed by the Legislature of the State of Kerala for amendment of the said Act, the order of stay was vacated. The Full Bench on 21st May, 1998 passed the following order:- Heard learned Additional Advocate General, Mr. T. Mohammed Youseff and Mr. A.X. Varghese, Advocate. The above application is filed to extend the order of stay granted in the Writ Appeal for a further period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. He opposed the petition for extension of time tooth and nail. This Court has already granted six month's time. The State has explained the reasons for its inability to introduce the new bill within the time granted earlier. We are satisfied with the reasons given in the affidavit. It is now stated in the affidavit that the Legislative Assembly is expected to commence its next session on 22.1.99 and that the new bill formulated by the Government will be introduced in this session. According to the Government, the new bill is expected to find a permanent solution to the problem of alienation of tribal lands which had taken for the period from 1.1.1960 to 1.1.1986. Therefore, they pray that in the interest of justice the State may be granted extension of time to introduce the Bill in this session. 2. We have considered the rival submissions and are of the opinion that in the interest of justice, the time already granted has to be extended by three months from today. As already noticed, the Assembly session is to commence on 22.1.1999 and the State is proposing to introduce the Bill in this session. 3. In view of the above, the time already granted by this Court is here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Madan Mohan Pathak v. Union of India, [ (1978) 2 SCC 50 ], the High Court held that in effect and substance, by reason of the provisions of the 1999 Act, a judicial decision was sought to be nullified. The contention of the respondents that Presidential assent having not been obtained, the 1999 Act was violative of Article 254 of the Constitution of India was, however, rejected. With regard to compliance of the requirements of Article 338 of the Constitution of India, consultation with Scheduled Castes/Scheduled Tribes Commission was held to be not imperative. Section 22 of the 1999 Act was held to be ultra vires Article 14 of the Constitution of India, having regard to the accrued rights of the members of the Scheduled Tribes in view of the issuance of the writ of mandamus issued, the High Court directed :- In the light of our discussion as above, we declare the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, Act 12 of 1999 as unconstitutional and void. We strike down the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99 Act, the same by itself did not attract the wrath of Article 14 of the Constitution of India. . (v) The provisions of the 1999 Act being more beneficial compared to the provisions of 1975 Act, only because the tribes would be allotted lands outside their original habitants, the same would not attract Article 21 of the Constitution of India, particularly when they would be getting 2 hectares of land as also grant for payment of compensation to the land holder in stead and place of repayable amount of loan as provided for in the 1975 Act. (vi) Keeping in view the nature of mandamus issued by the High Court in the earlier round of litigation, it would not mean that the State was not precluded from amending or repealing the 1975 Act. (vii) The decision of this Court in Madan Mohan Pathak (supra) and Hoechst Pharmaceuticals Ltd. v. State of Bihar, [ (1983) 4 SCC 45 ] having been explained in Indian Aluminium Co. v. State of Kerala, [(1996) 7 SCC 637] as also a Constitution Bench of this Court in State of Tamilnadu v. Arooran Sugars Ltd., [ (1997) 1 SCC 326 ], the impugned judgment cannot be sustained. (viii) The tribals in whose favour the orders of restoration had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the beneficiaries, the same could not have been withdrawn. Mr. Verghese, learned counsel appearing on behalf of respondent No.1 in Civil Appeal No.899 of 2001 supplementing the arguments of Mr. Sachar urged: (i) That the Members of Scheduled Tribes having come under attack by economically more advanced and politically more powerful ethnic groups who infiltrated into tribal regions in search of land and new economic possibilities, keeping in view Article 46 of the Constitution of India, they were entitled to restoration of land in terms of the judgment of the High Court passed in O.P. No.8879 of 1988. (ii) Provisions of 1975 Act having been found to be constitutionally valid, the accrued and vested rights of the tribals could not have been taken away by reason of 1999 Act or otherwise. (iii) The Writ-Petitioner - association having been fighting for the cause of the tribals for a long time, it cannot be said that they had no locus standi to file the public interest litigation. (iv) Even the Union of India having supported the case of the tribals, there is no reason as to why this Court should interfere with the impugned judgment. (v) The 1999 Act being not a validat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o persons other than tribals after the first of January, 1970 and before commencement of the Act :- 5. Certain transfers to be invalid - Notwithstanding anything to the contrary contained in any other law for time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any court, any transfer of immovable property possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe, effected on or after the Ist day of January, 1960, and before the commencement of this Act shall be deemed to be invalid. Under Section 6 of the 1975 Act members of the Schedule Tribes became entitled to restoration of possession of the properties, transfers which stood invalidated by operation of Section 4 and Section 5 of the Act. It provided for applications to be made by the Tribals for restoration of alienated lands to the Revenue Divisional Officer within the time prescribed therefor. The Revenue Divisional Officer was to make enquiries and after being satisfied with the application of the Act was to direct restoration of possession to the applicant. Section 6 which is material for our purpose, inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the aforesaid period and the extent of which does not exceed two hectares. (2) Notwithstanding anything contained in sub-section (1) or in any judgment, decree or order of any Court or other authority, in cases where the land involved in such transfer is used for agricultural purposes, the transferee thereof shall be entitled to retain in his possession the said land upto an extent of two hectares which shall be demarcated by the Revenue Divisional Officer by order and in the manner as may be prescribed. Section 6 providing for allotment of lands reads thus:- 6. Allotment of lands.- Notwithstanding anything contained in section 5 or in any judgment, decree or order of any Court or other authority, a member of a Scheduled Tribe who had effected any transfer of land, possessed, enjoyed or owned by him, to a person other than a member of a Scheduled Tribe, between the 1st day of January, 1960 and the 24th day of January, 1986 and where an application for restoration of right under Section 6 of the Kerala Scheduled Tribes (Restriction of Transfer of Lands and Restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prescribed. (2) Where the extent of the land in the possession and enjoyment of any family of the Scheduled Tribe in the State, is less than 40 Ares such family shall be entitled to get assigned more land which is necessary to make the total extent of the land equal to 40 Ares. Section 11 provides for constitution of Scheduled Tribe Rehabilitation and Welfare Fund and utilization thereof. Section 21 provides for power to make Rules. Section 22 is the Repealing and Saving clause. It reads as under:- 22. Repeal and saving.- (1) The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) is hereby repealed. (2) Notwithstanding the repeal of the said Act, all orders issued by the competent authority or the Revenue Divisional Officer, so far as they are not inconsistent with the provisions of this Act shall be deemed to have been made under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. Every proceedings pending before a Court on a complaint under Section 14 of the said Act shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31-A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31-A of the Constitution. We are not concerned with the constitutional validity of 1975 Act. We would at an appropriate stage deal with the matter in regard to the effect thereof. COLOURABLE LEGISLATION 12. We have noticed hereinbefore that the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. In R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited and Another [(1977) 4 SCC 98], this Court held as under: 2. A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal -- in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois1 viz. that courts do not substitute their social and economic beliefs for the judgment of legislative bodies . Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kerala, SCC at p. 232 and Federation of Hotel Restaurant Assn. of India v. Union of India, SCC at p. 651). If the statute is legislatively competent the enquiry into the motive which persuaded Parliament or the State Legislature into passing the Act is irrelevant (Dharam Dutt v. Union of India). (c) Apart from passing the test of legislative competency, the Act must be otherwise legally valid and would also have to pass the test of constitutionality in the sense that it cannot be in violation of the provisions of the Constitution nor can it operate extraterritorially. (See Poppatlal Shah v. State of Madras.) Has the legislature of the State of Kerala transgressed the limitations of its constitutional power, as has been held by the High Court, is the question? We have pointed out heretobefore that the doctrine of colourable legislation is strictly confined to the question of legislative competence of the State Legislature to enact a statute. Once it was opined by the High Court that having regard to Entry 51, List II of the Seventh Schedule of the Constitution of India, the Legislature of the State of Kerala had the requisite legislative competence to enact the 1999 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s power so as to achieve its object and purpose is one question, but, it is another question that while doing so it has adopted a device and a cloak to confiscate the property of the citizen taxed as was the case in K.T. Moopil Nair v. State of Kerala [AIR 1961 SC 552]. The High Court in its judgment has referred to Shankaranarayana v. State of Mysore [AIR 1966 SC 1571]. But, in our opinion, and with utmost respect, it again failed to apply the principles laid down therein correctly. Therein itself the court had noted that if the legislature is competent to pass a particular law, the motives which impel it to pass the same become really irrelevant. The High Court furthermore committed a serious error insofar as it made an incidental observation that the tribals who enjoy the protection of Constitution of India and sought to be protected by the 1975 Act could not have been denied the benefits under the 1999 Act, which in our opinion, was not a relevant question. The provisions of the Constitution in this behalf are enabling in nature. When a constitutionality of an enactment comes to be questioned, the superior courts are required to pose unto themselves the right question. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd comes within the purview of Entry 6, List III of the Seventh Schedule of the Constitution of India. There exists a Parliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the purpose of amendment of the Act and not for enacting a separate statute which came within the purview of a different entry and a different List. It is furthermore well-known that Article 254 of the Constitution of India would be attracted only in a case where two statutes are enacted under the Concurrent List, viz., one by the State Legislature and the other by the Parliament of India, and not in any other case. EFFECT OF ISSUANCE OF A WRIT OF MANDAMUS 14. Before adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Corporation (Modification of Settlement) Act, 1976 came into force. In the said factual backgrounds, it was held :- 7. But before we proceed further, it would be convenient at this stage to refer to one other contention of the petitioner based on the judgment of the Calcutta High Court in Writ Petition 371 of 1976. The contention was that since the Calcutta High Court had by its judgment dated May 21, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class III and Class IV employees for the year April 1, 1975 to March 31, 1976 along with their salary for the month of April, 1976 as provided by the Settlement and this judgment had become final by reason of withdrawal of the Letters Patent Appeal preferred against it, the Life Insurance Corporation was bound to obey the writ of mandamus and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 in accordance with the terms of clause 8(ii) of the Settlement. It is, no doubt, true, said the petitioners, that the impugned Act, if valid, struck at clause 8(ii) of the Settlement and rendered it ineffective and without force with effect from April 1, 1975 but it di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to become final. By the time the Letters Patent Appeal came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the Letters Patent Appeal that, since the Settlement, insofar as it provided for payment of annual cash bonus, was annihilated by the impugned Act with effect from April 1, 1975, Class III and Class IV employees were not entitled to annual cash bonus for the year April 1, 1975 to March 31, 1976 and hence no writ of mandamus could issue directing the Life Insurance Corporation to make payment of such bonus. If such contention had been raised, there is little doubt, subject of course to any constitutional challenge to the validity of the impugned Act, that the judgment of the learned Single Judge would have been upturned and the writ petition dismissed. But on account of some inexplicable reason, which is difficult to appreciate, the Life Insurance Corporation did not press the Letters Patent Appeal and the result was that the judgment of the learned Single Judge granting writ of mandamus became final and binding on the parties. It is difficult to see how in these circumstances the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Class IV employees. In a writ, a Single Judge of the Calcutta High Court issued mandamus directing payment of bonus as provided in the settlement. During the pendency of letters patent appeal, LIC (Modification of Settlement) Act, 1976 was enacted denying bonus payable to the employees. The appeal was withdrawn. The validity of 1976 Act was challenged in this Court under Article 32 of the Constitution. A Bench of seven Judges had held that Parliament was not aware of the mandamus issued by the court and it was declared that the 1976 Act was void and writ of mandamus was issued to obey the mandamus by implementing or enforcing the provisions of that Act and directed payment of bonus in terms of the settlement. It was pointed out that there was no reference to the judgment of the High Court in the Statement of Objects and Reasons, nor any non obstante clause referring to the judgment of the Court was made in Section 3 of the Act. Attention of Parliament was not drawn to the mandamus issued by the High Court. When the mandamus issued by the High Court became final, the 1976 Act was held invalid. Shri R.F. Nariman laid special emphasis on the observations of learned Chief Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J opined :- The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the legislature lacked legislative competence, they would not succeed in their challenge to the enactment brought forward in the wisdom of the legislature. Conferment of a right to claim the benefit of a statute, being not a vested right, the same could be withdrawn by the legislature which made the enactment. It could not be said that the Amendment Act lacked either legislative competence or that it is unconstitutional. Where a new Act is enacted removing the very basis on which the High Court made a preceding Act invalid; it matters not whether the same is not termed as a validating statute or not. In this case, however, in our opinion, such a question does not arise as the 1975 Act was not declared to be invalid. In Bakhtawar Trust v. M.D. Narayan, [(2003) 5 SCC 298] this Court held :- In order to validate an executive action or any provision of a statute, it is not sufficient for the legislature to declare that a judicial pronouncement given by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from payment of tax in favour of the appellants herein would also constitute a right or privilege. The expression privilege has a wider meaning than right. A right may be a vested right or an accrued right or an acquired right. Nature of such a right would depend upon and also vary from statute to statute. It has been so held by this Court, while construing Section 6 of the General Clauses Act, in Gurcharan Singh Baldev Singh v. Yashwant Singh in the following terms: (SCC p. 432, para 3) The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability. [See also Kusumam Hotels Private Limited v. Kerala State Electricity Board and Others (2008) 13 SCC 213 and State of Punjab and Others v. Bhajan Kaur and Others (2008) 12 SCC 112] The question as to whether the members of Scheduled Tribe had a vested right or not, may now be considered. The properties were sold by them to persons who were not the members of the Schedule Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ben Ashokbhai Patel and Others (2008) 4 SCC 649 and Union of India Ors. v. M/s. Martin Lottery Agencies Ltd. [(2009 4 SCALE 34] The provisions of the 1975 Act, therefore, deserve strict construction. Although we are not required to consider the validity of the 1975 Act stricto sensu, we may place on record that even the decisions of this Court have declared similar provisions to be intra vires. Before, however, we advert thereto, we would like to make some general observations. No territory in the State of Kerala has been declared as Scheduled Area within the meaning of Article 244 read with the Fifth Schedule of the Constitution of India. A distinction, thus, must be borne in mind in regard to the enactments which deal with tribal areas and which do not. If a law (e.g. Scheduled Area Regulation Act) deals with the tribal areas, the same amends provisions of the other Acts including the Limitation Act, 1963. If a person is in possession of a land, which he had obtained by reason of a valid transaction as it then was, which was subsequently sought to be invalidated, he would ordinarily receive protection by reason of doctrine of prescription provided for under the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the condition imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. In Lingappa (supra), this Court held: 26. The impugned Act in its true nature and character is a law relating to transfers and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. Such a law does not fall within Entries 6 and 7 in List III but is within Entry 18 in List II. We may here set out Entries 6 and 7 in List III: 6. Transfer of property other than agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Legislature obviously could not have made a law for annulment of transfer of such lands by tribals under Entry 18 in List II as the lands having been diverted to non- agricultural purposes ceased to be agricultural lands. In the case of such non-agricultural land, if the State Legislature made such a law it would not be effective unless it was reserved for the assent of the President and received such assent. Therein, thus, this Court found that Sub-section (1) of Section 3 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 made detailed provision to strike a balance between the mutual rights and obligations of the parties, upon making of an order for restoration of such land to the members of the Scheduled Tribes. It was furthermore held that the said Act having been placed in the Ninth Schedule of the Constitution of India, the validity thereof could not have been challenged for contravention of Articles 14, 19(1)(f) or Article 31 of the Constitution of India. Yet again in P. Rami Reddy and Others v. State of Andhra Pradesh and Others [(1988) 3 SCC 433], there existed a law prohibiting transfer in the agency tract areas, viz., the Agency Tracts Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of the Limitation Act, in respect of extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains with the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the basis of an alienation made in his favour by an allottee, the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years. [See also Papaiah v. State of Karnataka (1996) 10 SCC 533] The statutory provisions, therefore, must be interpreted in the light of the constitutional provisions. The decisions of this Court, therefore, are clear and unambiguous. In a case involving members of the Scheduled Tribe living in Scheduled Area the period of limitation can be extended, but it is not permissible in respect of an area which has not been declared to be a Scheduled Area. When a person acquires an indefeasible right, he can be deprived therefrom only by taking recourse to the doctrine of Eminent Domain. If a person is sought to be deprived of an indefeasible right acquired by him, he should be paid an amount of compensation. In a case of this nature, therefore, where an amount of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999. If the contention of the State is correct that most of the tribal organizations did not insist upon getting the same land that they had been alienated from but would have preferred to have alternate land allotted to them by the government and as many organizations insisted that the 1975 Act may not be implemented in its original form, we think that action of the State cannot be termed to be arbitrary so as to attract the wrath of the equality clause contained in Article 14 of the Constitution of India. While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was for the elected representatives of the people to determine as to whether by reason of the provisions of the 1999 Act the members of the Scheduled Tribe would face dislocation or that it would impinge on their culture connected with their lands. The ground realities are presumed to be known to the State and if anybody raises a contrary contention, it would be for him to bring on record sufficient materials to show so as to ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. 10. (1) Government shall assign land to landless tribal families not exceeding 40 Ares in extent in his own district within two years or extended time. (2) If any family owns land below 40 Ares I extent Govt. to assign such extent of land as is necessary to make up 40 Ares. 11. Schedule Tribe rehabilitation and Welfare Fund to be constituted for construction of houses for tribal families and for other welfare measures. 12.Provision for legal assistance 22 Repeal of Act 31 of 1975 with usual saving clause. Broadly, speaking, the provisions of the 1999 Act are more beneficial to the members of the Scheduled Tribe. For determining the said question, we must take a holistic view of the matter. However, we are not oblivious of the fact that restoration in respect of non-agricultural land and to the extent of 2 acres are not contemplated by the 1999 Act. We are also not oblivious of the fact that, it would appear, on the basis of the statistics furnished by the learned Additional Advocate General before the High Court, to which we have referred to heretobefore itself that a large number of members of the Scheduled Tribe would be deprived of the benefit of restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 1999 Act, however, provides for a grant which need not be repaid. The members of the Scheduled Tribe were further to get one acre of land from the State although they might have transferred even 5 or 10 cents of land. In the case of a transfer made upto two acres, he is to be allotted two acres of land by the State. Whether such land is available with the State Government or not is a different question, which we intend to deal with separately. The statute also contemplates building of houses for the members of the Scheduled Tribes. It provides that the land to the extent of one acre also be provided to the landless tribals. It contemplates constitution of a rehabilitation fund. The 1999 Act, therefore, if given a holistic view, is more beneficial to the members of the Scheduled Tribe than the 1975 Act. If the State contemplated a legislative policy for grant of more benefits to a vast section of people, taking care of not only restoration of land but those who have not transferred any land at all or otherwise landless, the statute by no stretch of imagination can be treated to be an arbitrary and an unreasonable one. ARTICLE 21 ISSUE 18. Article 21 deals with ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enous population ! Thus declared the Indian Permanent Mission in the United Nation in Geneva (Mullick et al 7). This is not an argument made to showcase the tribes of Kerala as scheduled tribes. Now a question of serious importance can be raised: Is there a need to uphold/preserve this indigenous culture? The outer (can be read as other ) influences have spread their roots so strong that their minds have been colonized (can be read as `altered'). Even though the tribes carry wonderful memories of their rich past, they do not want to be in the same situation as they were in days of yore. So, the need for conservation of the tribal culture is the problem of the non-tribes, especially the researchers, scholars and activists working in this area. Intentionally or unintentionally, changes are the only constant feature of any culture. It can be observed that no culture can retain its flavor at different points of time. But the questions to be addressed to the main-stream and its government are: Are the tribes given freedom to accept or deny what ever they want? Are they given a free space to think, act and establish (as they used to in days of yore?) We may notice that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in September, 2007. Articles 3 to 5 thereof read as under: Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to self- determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. It is now accepted that the Panchasheel doctrine which provided that the tribes could flourish and develop only if the State interfered minimally and functioned chiefly as a support system in view of passage of time is no longer valid. Even the notion of autonomy contained in the 1989 Convention has been rejected by India. However, India appears to have softened its stand against aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ric power and keeping flood waters back. It repelled a submission that the execution of SSP without a comprehensive assessment and evaluation of its environmental impact and a decision regarding its acceptability would be in violation of the rights of the affected people under Article 21 of the Constitution of India stating that requisite environmental clearance had been taken opining that the same had been granted on due application of mind. It took into consideration the question of relief and rehabilitation, consequent upon the displacement of people, holding: 151. The displacement of the people due to major river valley projects has occurred in both developed and developing countries. In the past, there was no definite policy for rehabilitation of displaced persons associated with the river valley projects in India. There were certain project-specific programmes for implementation on a temporary basis. For the land acquired, compensation under the provisions of the Land Acquisition Act, 1894 used to be given to the project-affected families. This payment in cash did not result in satisfactory resettlement of the displaced families. Realising the difficulties of displaced p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. This project not only allows the farmers to grow crops in deserts but also checks the spread of Thar Desert in the adjoining areas of Punjab and Haryana. It is of some significance to note that this Court in Balco Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333] in regard to the decision of this Court in Samatha v. State of A.P. [(1997) 8 SCC 191], by drawing a necessary distinction between an area which is covered by Fifth Schedule of the Constitution and an area which is not, opined as under: 71. While we have strong reservations with regard to the correctness of the majority decision in Samatha case, which has not only interpreted the provisions of the aforesaid Section 3(1) of the A.P. Scheduled Areas Land Transfer Regulation, 1959 but has also interpreted the provisions of the Fifth Schedule of the Constitution, the said decision is not applicable in the present case because the law applicable in Madhya Pradesh is not similar or identical to the aforesaid Regulation of Andhra Pradesh. Article 145(3) of the Constitution provides that any substantial question of law as to the interpretation of the provisions of the Constitution can only be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the provisions of the 1999 Act are intra vires. In the counter-affidavit filed by the State, it is stated: ...It is no doubt true that Act 31 of 1975 was integrated in the light of the non-tribals depriving tribals of their land and the tribals being exploited. However, over the years considering the population of land ratio even the non-tribals occupying land which was once in possession of the tribals stood to have their livelihood seriously jeopardise by total implementation of Act 31 of 1975. Ultimately, the Government had to consider all the aspects of the matter and the Government found that the optimum solution would be to bring a new legislation. It is in view of this that Act 12 of 1999 has been passed by the State legislature... NON-AVAILABILITY OF THE LAND 19. Mr. Iyer, learned counsel would contend that the State of Kerala is striving hard for making the lands available to the tribal people. The learned counsel contended that the State has approached the Forest Bench of this Court for this purpose. We are, however, not concerned therewith. Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 7. Revival of repealed enactments - (1) In any (Central Act) or Regulations made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. This section applies also to all (Central Acts) made after the third day of January, 1968 and to all Regulations made on or after the fourteenth day of January, 1887. In our opinion, there exists a distinction between a statutory rule and a Legislative Act. The Legislature did not want a vacuum to be created. The 1999 Act was enacted repealing the 1975 Act only for certain purposes. Section 22(2) of the 1999 Act upheld certain actions taken under the 1975 Act as if they had been taken in terms thereof. The procedure for determining the rights and obligations of the parties by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reupon also the learned counsel had placed reliance, stating:- 18. A perusal of Section 20 shows that several provisions of the Uttar Pradesh General Clauses Act have been made applicable in relation to statutory instruments including the statutory Rules issued under any Uttar Pradesh Act. However, Section 6-C does not find place in sub-section (2) of Section 20 of the U.P. General Clauses Act. In the absence of application of Section 6-C to the statutory instrument, including the statutory rule, which is the case before us, the contention of the respondents deserves to be rejected. Since Section 6-C of the U.P. General Clauses Act has not been applied to the statutory rule framed by the Government of Uttar Pradesh, the substituted rule after it became inoperative, the old Rule 49 would not revive. The aforementioned observations were, thus, made having regard to the fact that Section 6-C of the U.P. General Clauses Act had not been applied to the statutory Rules, which reads as under :- 6-C. Repeal or expiration of law-making textual amendments in other laws.--(1) Except as provided by sub-section (2), where any Uttar Pradesh Act amends the text of any Uttar Pradesh Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. In Southern Petrochemical Industries (supra), the subsequent Act did not contain the words unless a different intention appears . It was held that the later Act was not different from the earlier Act. This Court is required to assume that the Legislature did so deliberately. In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan. AGRICULTURAL AND NON-AGRICULTURAL LAND 21. Classification between agricultural and non-agricultural land is a valid one. It is, however, accepted that all forest areas comprise of the agricultural land. The State has admittedly no legislative competence to enact a legislation in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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