TMI Blog1988 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... India as it obtained at the material time till its repeal by the 44th Amendment in 1979. 3. A short history of the legislation may be briefly traced to the extent considered necessary. In the Andhra Area there existed before the inauguration of the Constitution, certain laws including the Agency Tracts Interest and Land Transfer Act, 1917 which inter alia prohibited transfer of land in the Agency Tract areas except in favour of members of hill tribes conferring upon the persons belonging to the Scheduled Tribes certain benefits. 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 Schedule Areas. Accordingly, the Governor made the A.P. Scheduled Areas Land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, and non-tribals alike, are declared null and void. The appellants are all non-tribals, and are affected by this amending Regulation. Some of them belong to the Scheduled areas in the Telengana region, and some of the Scheduled areas in the Andhra region. But, they have a common grievance that the Regulation cuts at the root of their right to the immovable properties, which have been in their possession for the past many years. 8. The principal plea of the appellants before this Court is that in so far as the impugned provision seeks to control or restrict the right of transfer of immovable property by a 'non-tribal' person it is void and that the High Court has erred in holding otherwise. 9. Be it realized that the question whether or not the impugned regulation brought into force in 1970 has retrospective operation as contended by the State or whether it merely has a prospective operation as held by the High Court does not fall for consideration in the present group of appeals. This question has been raised in another set of appeals which are awaiting decision before this Court. We therefore do not deal with this dimension of the issue in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these money lenders ever credited any amount paid by the tribals towards their debt and whatever entries were made in the books of the money lenders were implicitly believed by the tribals. The tribals were not aware that when produce was sold to the non-tribals, they were using a larger weight and a smaller weight was applied for selling outside goods to the tribals. The indebtedness of the tribal had taken the form of bonded labour in many cases. The debt could never be discharged by the tribals. 4. The money lenders continued to be in occupation of most of the lands and the tribals became their serfs. The non-tribals have also forcibly occupied some of the lands. The tribals were ignorant and they were not aware that they could go and report to the concerned authorities about the contravention of the Regulations protecting their rights. The non-tribals have been taking full advantage of their ignorance and exploited them and are continuing to exploit them. 5. There were several rebellious movements in the Scheduled areas against the oppression by the money lenders and rapacious landlords. Exploitation of tribals was a cause of many disturbances such as Rampar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the lands. 11. Unless new entrants into the Scheduled areas are prevented from settling down in the Scheduled areas by purchasing properties either from tribals or non-tribals, it is not possible to prevent the exploitation of the unsophisticated tribals. It is only with a view to enforce the valid provisions of Regulation I of 1959, the Regulation viz., Regulation I of 1970 was made. It is in the interests of the tribals and for their protection Regulation I of 1970 was passed, because without restricting or prohibiting the alienation of lands in the possession of non-tribals to non-tribals the objectives cannot be achieved. 12. What has emerged from the additional counter filed by the State in the High Court is buttressed by the contents of a treatise authored by a well-known research scholar. The treatise is the culmination of laborious research carried out in respect of the very areas which form a part of the scheduled area of Andhra Pradesh in respect of which the impugned legislation has been enacted. It has been stated therein that more than 40 million Indians belong to tribal communities distinct from the great mass of the society. They are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on provisions prohibiting transfers to 'non-tribals' of lands granted to the tribals and on remedial measures for speedy restoration of such lands to the members of Scheduled Castes and Scheduled Tribes in cases where the lands had passed into the hands of the 'non-tribals'. Reference may also be made to Lingappa Pqchanna Appelwar v. State of Maharashtra MANU/SC/0236/1984MANU/SC/0236/1984 : [1985]2SCR224 whereby this Court has upheld the constitutionality of the provisions enacted essentially in order to secure restoration to the original tribal owners the lands which had gone out of their hands and passed into the hands of the 'non-tribals'. 16. The problem presented in the present appeals is somewhat different from the problems which have surfaced so far. It brings into focus the challenge to the validity of the provisions enacted with a view to prevent 'non-tribals' along with 'tribals' from transferring lands including structures raised thereon in favour of 'non-tribals' from transferring lands including structures raised thereon in favour of 'non-tribals' in the Scheduled areas. It is in this context that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al' being under economic compulsion to do so. It is not possible to accede to any of the aforesaid submissions. As highlighted earlier, originally all the lands in these tracks were owned by the 'tribals'. With the advent of the 'non-tribals' in the late 19th Century and early 20th Century, the lands changed hands from 'tribals' to 'non-tribals'. This change of ownership was a result of exploitation arising: (1) in the context of money lending operations and (2) in the context of dubious and unconscionable dealings in the course of trade. The 'non-tribals' had so often circumvented the legislation enacted in order to protect the 'tribals' by recourse to benami transactions, and by recourse to dubious devices. The poor ignorant, illiterate, and unsophisticated tribals had succumbed to the wiles of the economically stronger and unscrupulous 'non-tribals'. A legislation which in essence and substance aims at restoration to the 'tribals' of the lands which originally belonged to the 'tribals' but which passed into the hands of 'non-tribals' in the aforesaid background certainly cannot be charac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures, if any, raised on such lands, to 'non-tribals' and make profits at the cost of the tribals. It would not only be tantamount to perpetuating the exploitation and injustice, it would tantamount to placing premium on the exploitation and injustice perpetrated by the non-tribals. Thus it would be the height of unreasonableness to impose the disability only on the tribals whilst leaving out the 'non-tribals'. It would also be counter productive to do so. It must also be emphasized that to freeze the pool of lands available to the 'tribals' at the present level is virtually to diminish the pool. There is no escape from this outcome because the realities of life being what they are with the population increase amongst the tribals remaining unfrozen, increase in their population will automatically diminish the size of their pool if the same is frozen. No unreasonableness therefore is involved in making the prohibition against transfer to 'non-tribals' applicable to both the 'tribal' as also to the 'non-tribal' owners in the scheduled area. As a matter of fact it would have been unreasonable to do otherwise. In the absence of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge can no longer survive, with the introduction of Section 3A. 21. Another argument which did not succeed in the High Court has been hopefully persisted with in the Court. The expression Land has been used in its restricted sense in paragraph 5(2)(a) of Schedule V and therefore the impugned provisions prohibiting the transfer of lands along with structures thereon by employing the expression immovable property is not in accordance with law. Such is the argument. This argument is devoid of merit for two reasons: Firstly, there is no reason to believe that 'land' has not been employed in its legal sense. The expression 'land' in its legal sense is a comprehensive expression which is wide enough to include structures, if any, raised thereon. While this proposition hardly needs to be buttressed, support can be sought from the following sources: The Dictionary of English Law. LAND, in its restrained sense, means soil, but in its legal acceptation it is a generic term, comprehending every species of ground, soil or earth, whatsoever, as meadows, pastures, woods, moors, waters, marshes, furze, and heath; it includes also houses, mills, ..... 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