STATE OF KERALA AND ANOTHER v.

PEOPLES UNION FOR CIVIL LIBERTIES, KERALA STATE  UNIT AND OTHERS

(Civil Appeal Nos. 104-105 of 2001) JULY 21, 2009

[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

The Judgment of the Court was delivered by

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-à-vis a  

subsequent  legislation  altering  or  modifying  the  right  of  the  

beneficiaries  under  the  former  Act,  inter  alia,  is  the  question  

involved in these appeals.  

They arise out  of  a judgment and order dated 24th August,  

2000 passed by a Division Bench of the High Court of Kerala at  

Ernakulam.  

BACKGROUND FACTS  

2. The State of Kerala enacted the Kerala Scheduled Tribes  

(Restriction  on  Transfer  of  Lands  and  Restoration  of  Alienated  

Lands) Act, 1975 (Act No.31 of 1975) (for short ‘the 1975 Act’) with  

the object of providing restriction on transfer of land by Members of  

Scheduled  Tribes  in  the  State  of  Kerala  and  for  restoration  of  

possession of lands alienated by such members and for matters  

connected therewith.  

The said Act received the assent of the President of India. It  

was included in the Ninth Schedule of the Constitution 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.  

RULES UNDER THE SAID ACT

3. 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.  

PROCEEDINGS

4.  Members  of  the  Scheduled  Tribes  filed  applications  for  

restoration of their lands in the year 1988 in terms of the provisions  

of the 1975 Act and the 1986 Rules.

As the said Act was not implemented in letter and spirit, one  

Dr. Nallathampy Thera filed a writ petition which was marked as  

O.P. No.8879 of 1988 praying inter alia for issuance of a Writ of  

Mandamus compelling the State to implement the provisions of the  

Act  and  directing  the  concerned  authorities  to  deal  with  and  

dispose of the applications filed therein. Before the High Court the  

learned  Additional  Advocate  General  appearing  for  the  State  

submitted that :

“utmost  steps  would  be  taken  for  the  disposal  of  the  

applications  and  that  the  Act  would  be  enforced  in  all  its  

rigour.”

Relying  on or  on the  basis  of  the said statement,  O.P.  No.  

8879 of 1988 was disposed of by the High Court on 15th October,  

1993,  inter  alia,  calling upon the State to  give directions to  the  

Authorities  under  the  1975  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 affidavits showing progress till  

31.1.1996 shall be filed before 15.2.1996 and so on.

(iv) The  State  shall  provide  the  necessary  back  up  and  

support  to the Revenue Divisional Officers to complete  

the work within the extended time now granted.

(v) The State or any of the Revenue Divisional Officers shall  

be at liberty to approach this court in the event of any  

difficulty being felt in disposing off the applications.  

(vi) It is seen from the affidavit filed by the Government that  

the pendency of applications in the Districts of Palakkad,  

Wayanad, Idukki  and Kottayam is unusually large. The  

Revenue  Divisional  Officers  of  these  Districts  are  

directed  in  particular  to  dispose of  all  the  applications  

within the extended time.”

Applications for restoration of lands which were pending were  

disposed of pursuant to the said directions. Appeals were filed in a  

few cases but in most of them the orders directing restoration of  

lands became final.  

Strangely however, no actual restoration of land was effected.  

Another application was filed by the writ petitioner on 1st March,  

1996 complaining about non-implementation of the said order.  

The learned Additional Advocate General once again gave an  

assurance  that  the  order  of  the  authorities  under  the  1975  Act  

would be implemented. On or about 28th March, 1996 the High  

Court directed :-

“The learned Additional  Advocate General  assures the court  

that all out efforts will be made to dispose of all the pending  

applications within the time stipulated by this court and further  

that  wherever  there  has  been  final  orders  passed,  actual

restoration will also be formal orders are necessary today. Post  

on 31.5.1996.”

(emphasis supplied)”

Further affidavits were filed by the Revenue Divisional Officers  

reporting progress in the disposal of the applications made under  

the Act.  

On  or  about  13th  August,  1996  the  High  Court  issued  the  

following directions :-

“(1)  The  Revenue  Divisional  Officers  are  directed  to  cause  

delivery  of  the  properties  covered  by  orders  for  restoration  

against  which,  no  appeals  are  pending  and  in  which  no  

compensation is payable, forthwith and in any event within six  

weeks from today.

(2) In view of the submission that the officers are meeting with  

resistance in  restoring possession the State and the District  

Superintendents of Police of all Districts are directed to afford  

the  needed protection  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  of  six  months  from  

21.5.1998. This Court granted the interim order of stay since at  

the time the Bill  passed by the Legislative  Assembly of  the  

State of Kerala was pending consideration before the Hon’ble  

President  of  India.  It  is  now stated  in  the  affidavit  that  the  

Hon’ble  President  of  India  has  declined  assent  to  the  Bill  

passed by the State Legislative Assembly. In the light of the  

Hon’ble President of India having declined assent to the Kerala  

Scheduled  Tribe  (Restriction  on  Transfer  of  Lands  and  

Restoration of Alienated Lands)Amendment Act, 1996, there is  

no justification for this court extending the order to stay granted  

earlier. The interim stay granted earlier is vacated.

2.  The learned Single Judge,  while  disposing of  C.M.P.  No.  

28950 of 1995 in O.P. 8879 of 1988, was pleased to grant time  

till 30.9.1996 for reporting compliance with direction No.1 in the  

order. The time was extended from time to time for compliance  

with the directions till the order of stay was granted. Now that

the order of stay having been vacated, we grant six months  

time to the State for carrying out the direction contained in the  

order  of  the  learned  single  judge  dated  13th  August  1996,  

passed in C.M.P. No. 28950 of 1995, without prejudice to the  

right of the Government in considering the various aspects of  

the  matter  to  bring  forward suitable  legislation  with  suitable   

changes, if they so desire.”

(emphasis added)

On or about 23rd November, 1998 an application for initiating  

proceedings  under  the  Contempt  of  Courts  Act,  1971 was filed  

against the State and its officers on the premise that orders of the  

High  Court  had  not  been  complied  with.  A  notice  was  issued  

therein.  

A petition was filed by the State for extension of the period by  

six months from 21st November, 1998. However, a statement was  

made before the Full Bench that a new Bill would be introduced  

before  the  Legislative  Assembly  in  terms  whereof  a  permanent  

solution to the problem of alienation of tribal lands which had taken  

place during the period from 1.1.1960 and 1.1.1986 shall be dealt  

with.  The  Full  Bench,  by  its  order  dated  6th  January,  1999,  

directed :-

“This petition has been filed by the State to extend the time  

(sic) granted already by a period of six months from 21.11.98.  

We have  perused the  affidavit  and  heard  the  arguments  of  

both sides. We have also heard Dr. P. Nalla Thampy Thera.  

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  hereby  extended  by three  months  from today.  The State  

shall  introduce the Bill  in  this  session of  the  Assembly and  

complete all the other formalities within the time now granted.  

We make it clear that there will be no further extension of time.  

The State is directed to pay cost of this petition to Dr. Nalla  

Thampy Thera which is fixed at Rs.5000/-, by way of demand  

draft drawn in his name, within three weeks from today.”

(emphasis supplied)

WRIT PROCEEDINGS  

5. Indisputably the Legislature of the State thereafter enacted  

the Kerala Restriction on Transfer by and Restoration of Lands to

the Scheduled Tribes Act, 1999 (for short ‘the 1999 Act’),  which  

inter alia deals with transfer and alienation of agricultural lands.  

Constitutional  validity  of  the  1999  Act,  specially  the  proviso  

appended to Section 5(1), Section 5(2), Section 6 and Section 22  

were challenged by filing two writ petitions; one marked as O.P.  

No.25332 of  1999  filed  by  Niyamvedi,  respondent  No.1  in  Civil  

Appeal  No.105 of  2001 and another O.P. No.26499 of 1999 by  

Peoples  Union for  Civil  Liberties,  Kerala  State  Unit,  respondent  

No.1 in Civil Appeal No.104 of 2001.  

In the aforesaid writ  petitions counter-affidavits were filed on  

behalf of the Union of India supporting the stand of the tribes.

Malayora  Karshaka  Federation  (appellant  before  us  in  C.A.  

No.899 of 2001) was impleaded as a party therein. By reason of  

the impugned judgment and order dated 24th August, 2000, the  

High Court declared the aforesaid provisions as ultra vires.  

FINDINGS OF THE HIGH COURT

6. The High Court, while acknowledging, the legislative intent  

of the State of Kerala, opined that it was colourable in nature as by  

reason of the provisions of the 1975 Act and the orders passed in  

favour  of  the  members  of  the  Scheduled Tribes,  a  vested right  

accrued to the members of Scheduled Tribes was destroyed by  

reason of the provisions of 1999 Act.  

Proviso to Sections 5(1), Section 5(2), Section 6 and Section  

22 of the 1999 Act were held to be arbitrary. The said provisions  

were also held to be discriminatory and thus violative of Article 14  

of  the  Constitution  of  India.  The issue  in  regard  to  violation  of  

Article 19(1)(e) of the Constitution of India was determined on the

premise  that  no  sufficient  material  had  been  placed  before  the  

Court.  

Inter alia relying on or on the basis of the decision of this 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 1999. We direct the  

State and the Authorities under Act 31 of 1975 to implement  

the orders for restoration passed under the Kerala Scheduled  

Tribes  (Restriction  of  Transfer  of  land  and  Restoration  of  

Alienated Lands) Act, 1975, Act 31 of 1975 and restrain the  

State and the Authorities under Act 12 of 1999 from enforcing

the proviso to Section 5(1), Section 5(2), Section 6 and Section  

22 of Act 12 of 1999.”

THE APPEALS BEFORE US

7. Civil Appeal Nos. 104-105 of 2003 have been filed by the  

State  of  Kerala  against  the  common judgment  and order  dated  

24th August, 2000 passed by a Division Bench of the Kerala High  

Court in O.P. Nos. 25332 and 26499 of 1999 filed by Niyamavedi  

and Peoples Union for  Civil  Liberties,  Kerala  State Unit  striking  

down  the  proviso  to  Section  5(1),  Section  5(2),  Section  6  and  

Section 22 of the 1999 Act.

Civil  Appeal  No.899  of  2001  has  been  filed  by  Malayora  

Karshaka Federation Kerala Meenangadi (respondent No.7 before  

the High Court in O.P. No.25332 of 1999) against the aforesaid  

order dated 24th August, 2000.  

Civil  Appeal  No.7079 of  2001 has  been  filed  by  M.  Mohan  

Kumar, Chief Secretary, Government of Kerala against the order  

dated 4th December, 2000 passed by a Division Bench of the High  

Court in C.C.C. No. 542 of 1986 whereby the Court directed the  

appellant to appear before it for framing charges against him in not  

complying  with  the  final  direction  issued  by  the  Court  on  18th  

December, 1999.  

CONTENTIONS  

8.  Mr.  T.L.  Viswanath  Iyer,  learned  senior  counsel  and  

Mr.Dayan  Kishnan,  Advocate,  appearing  on  behalf  of  the  

appellants would submit :-

(i) The High Court  committed a  manifest  error  in  holding  

that  the  1999  Act  suffers  from  the  vice  of  colourable

exercise  of  power  or  is  otherwise  mala  fide  despite  

holding that the Legislature of the State of Kerala had the  

requisite legislative competence therefor.  

(ii) The  members  of  the  Scheduled  Tribes  had  no  

fundamental or common law right to obtain restoration of  

possession  of  their  lands  which  had  already  been  

alienated.  

(iii) Such a right having been conferred upon them by reason  

of the provisions of 1975 Act, the same could be taken  

away  and/or  modified  or  altered  by  reason  of  a  

subsequent Act which comes within Entry 18 of the List II  

of Seventh Schedule of the Constitution of India.  

(iv) Only because non-agricultural lands had been kept out of  

purview of 1999 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 passed having not filed any writ petition, it must be  

presumed that they were not aggrieved by the provisions  

of the 1999 Act, particularly in view of the fact that their  

association  had  been  consulted  by  the  Government  

Officials and in that view of the matter the writ petitioner  

– association had no locus standi  to maintain the public  

interest  litigation  having  regard  to  Baba  Charan  Dass  

Udhasi  v.  Mahant  Basant  Das  Babaji  Chela  Baba  

Laxmandas Udasi Sadhu [(2000) 6 SCC 1].  

(x) In any event,  a declaration by a Superior Court  that a  

subsequent statute is ultra vires would not wipe off the  

earlier statute automatically.  

(xi) The purchasers of land having acquired the properties in  

1950s  must  be  held  to  have  acquired  an  indefeasible  

right over the same and thus the 1975 Act even to that  

extent was not applicable.  

Mr.  Rajinder  Sachar,  learned  senior  counsel  appearing  on  

behalf of respondents in C.A. Nos. 104-105 of 2001, on the other  

hand, would contend:-

(i) The 1999 Act being in the teeth of the mandamus issued  

by  the  High  Court  has  rightly  been  held  to  be  

unconstitutional in view of the fact that nothing has been  

brought on record to show that the 1999 Act was enacted  

by the legislature despite knowledge that the directions  

issued by the High Court had attained finality.  

(ii) The 1975 Act having conferred a right of restoration on  

the Members of the Scheduled Tribes, both in respect of  

agricultural and non-agricultural lands, the provisions of  

1999  Act  and  in  particular  Section  6  thereof  having  

confined its operation only to agricultural land and that  

too  with  retrospective  effect  from 24th  January,  1986,  

must  be  held  to  be  ultra  vires  Article  14  of  the  

Constitution of India.

(iii) The  Members  of  the  Scheduled  Tribes  being  mostly  

residents of forests and the lands restored in their favour  

being forest lands, no legal infirmity was committed by  

the High Court in holding that the tribals; the community  

being weakest of weak, should not be deprived therefrom  

having  regard  to  their  constitutional  right  of  life  as  

adumbrated in Article 21 of the Constitution of India.  

(iv) As from the statistics furnished by the State itself it would  

appear that only about 10 percent of the applicants had  

more than 2 hectares of land, the right of restoration of  

the marginal farmers could not have been taken away.  

(v) Once  a  statutory  protection  is  granted  to  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  validating  statute,  the  

impugned judgment  is  unassailable,  particularly  having  

regard to the objective of 1975 Act vis-à-vis 1999 Act.

(vi) It is incorrect to contend that the State before enactment  

of  1999  Act  consulted  the  true  representatives  of  the  

tribals.  

(vii) In any view of the matter as the members of the tribal  

community became entitled to restoration of their land by  

reason of the provisions of the 1975 Act, there was no  

reason as to why the original land would not be restored  

to them.  

The 1975 ACT  

9. The 1975 Act was enacted by the State in terms of Entry 6  

of List III of Seventh Schedule of the Constitution of India.  

Section  2  contains  interpretation  clauses  defining  the  terms  

specified therein.  

Section 2(b) defines ‘immovable property’ to include standing  

crops and trees but does not include growing grass.  

‘Scheduled tribe’ has been defined in Section 2(e) to mean any  

of the Scheduled Tribes relating to the State as specified in the  

Constitution (Scheduled Tribes) Order, 1950.  

Section 2(g) defines ‘transfer’ as under :-

“ ‘transfer’ , in relation to immovable property, means an act by  

which immovable property, is conveyed to any documentary or  

oral transaction, whether by way of mortgage with or without  

possession,  lease,  sale,  gift  or  exchange,  or  in  any  other  

manner, not being a testamentary disposition; and includes a  

charge,  ‘vilapanayam’,  ‘unduruthi’,  contract  relating  to  

immovable  property,  mortgage,  pledge  or  hypothecation  of

crops  or  standing  trees  on  payment  of  consideration  or  

otherwise, voluntary surrender and abandonment.

Explanation. – For the purposes of this clause. –

(i) “vilapanyam” means hypothecation of crops on payment  

of consideration or otherwise;

(ii) “unduruthi” means an assignment of the right to collect  

the usufructs available or anticipated to be available to  

any land during specified term for a specified price.”

Section 4 imposes restrictions on transfer by providing a non  

obstante clause in terms whereof after the commencement of the  

Act any transfer effected by a member of the Scheduled Tribe of  

immovable  property  possessed,  enjoyed  or  owned by him to  a  

person other  than a member of  a  Scheduled Tribe,  without  the  

previous consent in writing of the competent authority, would be  

invalid.  

Section  5  of  the  Act  invalidated  certain  transfers  made  by  

tribals to 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, reads as  

under:-

“6.  Reconveyance of  property – (1)  Where by reasons of  a  

transfer of immovable property which is invalid under Section 4  

or Section 5, a member of a Scheduled Tribe has ceased or  

ceases to be in possession or enjoyment thereof he shall be  

entitled to the restoration of possession or enjoyment, as the  

case may be of such property.

(2) Any person entitled to be restored to the possession or  

enjoyment of any immovable property under sub-section (1) or  

any other person on his behalf may make an application, either  

orally or in writing to the Revenue Divisional Officer within a  

period of one year from the date of commencement of this Act  

or such further period as may be specified by Government by  

notification in the Gazette -

(a)  for  restoration  of  possession,  or  enjoyment,  as  the  

case  may  be,  of  such  property,  if  such  transfer  had  been  

made; before the date of commencement of this Act.

(b) for  restoration  of  possession  or  

enjoyment, as the case may be, of such property and for the  

prosecution of the person who has procured such transfer, if  

such transfer was made on or after the date of commencement  

of this Act.”

Section 11 provides for liability to pay amount.  

Section  12  provides  for  advancement  of  loan  by  the  

Government  for  payment  of  the  amount  on  such  terms  and  

conditions as has been laid down under sub-sections (2) and (3)  

thereof.  

The Act  also prescribed offences and provided for  penalties  

etc.

Section 22 contains the rule making power.

1999 ACT  

The  1999  Act  was  published  in  the  Kerala  Gazette  

Extraordinary  on  20th  April,  1999.  It  was  given  a  retrospective  

effect and retroactive operation from 24th January, 1986.  

‘Land’ has been defined in 2(b) to mean any agricultural land.  

Section 5 of the Act reads as under:-

“5. Certain transfer to be invalid –  

(1) Notwithstanding anything to the contrary contained in any  

other law for the time being in force, or in any contract, custom  

or usage, or in any judgment, decree or order of any court, any  

transfer of land 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 1st day of January,

1960,  and  before  the  commencement  of  this  Act  shall  be  

deemed to be invalid:

Provided that nothing in this section shall  render invalid  

any  transfer  of  land  possessed,  enjoyed  or  owned  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  Alienated Lands)  Act,  

1975 (31 of 1975) has been filed before publication of this Act  

in the Gazette, but the possession or enjoyment thereof, has  

not been restored to him and such transfer has been validated  

by the proviso to sub-section (1) of Section 5 or the transferee

thereof has been made eligible for the retention of said land  

under  sub-section  (2)  of  Section  5,  shall  be  entitled  to  

restoration of equal extent of land by way of allotment from the  

Government:

Provided that where the extent of the land so allotted in  

respect of which there is eligibility for restoration of rights, is  

less than forty ares, Government shall allot the rest of the land  

required  to  make  the  total  extent  equal  to  forty  ares  (One  

acre).”

Section 8 providing for liability to pay amount reads :-  

“8. Liability to pay amount.-

(1) Notwithstanding anything contained in any other law for  

the  time  being  in  force,  where  the  possession  or  

enjoyment  of  any  land  is  restored  to  a  member  of  a  

Scheduled Tribe under this Act, an amount equal to the  

aggregate of the actual amount of consideration received  

by  such  member  at  the  time  of  the  transfer  and  an  

amount  determined  by  the  competent  authority  for  

improvements, if any, made after the transfer and before  

such restoration shall be paid by him to the person from  

whom possession or  enjoyment,  as  the case may be,  

was restored, in accordance with the rules made under  

this Act:

Provided that no amount shall be payable if the transfer  

was effected on or after the commencement of this Act.

(2) The  amount  determined  by  the  competent  authority  

under  sub-section  (1)  shall  be  final  and  shall  not  be  

called in question in any court.

(3) The  amount  payable  under  sub-section  (1)  shall  be  

recoverable in such manner as may be prescribed.

Section 10 provides for assignment of land, which reads:-

“10. Assignment of land.-

(1) Notwithstanding anything contained in Section 6 or in the  

Kerala Government Land Assignment Act,  1960 (30 of  

1960) and the rules issued thereunder, the Government  

shall  assign  land  to  the  landless  families  of  the  

Scheduled Tribes in the State, an extent not exceeding  

forty ares of land in the district they reside within a period  

of two years from the date of publication of this Act in the  

Gazette, or such further period as may be specified by  

Government  by  notification  in  the  Gazette,  and  in  the  

manner as may 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  shall  be  

deemed  as  a  proceeding  under  the  corresponding  

provisions  of  this  Act  and  shall  be  continued  

accordingly.”  

CONSTITUTIONAL VALIDITY OF 1999 ACT

LEGISLATIVE BACKDROP

11. The validity of 1975 Act is not in question. It, having regard  

to its inclusion in the Ninth Schedule of the Constitution of India by  

Constitution  40th  Amendment  Ac,  1976  read  with  Article  31B  

which precludes an attack to the provisions of such an enactment  

on  the  ground  that  it  violates  any  provisions  of  Part  III  of  the  

Constitution of India, the validity thereof was upheld by a leaned  

Single  Judge  of  the  Kerala  High  Court  in  Bhavani  v.  State  of   

Kerala, [1989 (1) KLT (Short Note Case No.58) at 37].

We  may  also  notice  that  Jagannadha  Rao,  C.J.  (as  His  

Lordship  then  was)  in  Fr.  Thomas  Kubukkat  v.  Union  of  India,  

[ 1994 (2) KLT 25 ] also upheld the provisions of Section 1(3) of  

1975 Act stating the said provision to be conditional legislation and  

not a delegated legislation.  

The Constitutional validity of statutes enacted for the benefit of  

the members of Scheduled Tribe by some other State although not  

identical  has  been  upheld  by  this  Court  in  Manchegowda  and  

others  v.  State  of  Karnataka  and  others, [(1984)  3  SCC  301],  

Lingappa v. State of Maharashtra, [(1985) 1 SCC 479];  P. Rama  

Reddy v. State of A.P. [ (1988) 3 SCC 433 ] and Samtha v. State  

of Andhra Pradesh, [ (1997) 8 SCC 191 ].  

These decisions have been rendered on statutes which are not  

absolutely identical.  All of which are not in pari materia with the  

other.  

However,  we may  notice  that  in  Manchegowda  (supra)  this  

Court held:-

“19. We have earlier noticed that the title which is acquired by  a transferee in the granted lands, transferred in contravention  

of the prohibition against the transfer of the granted lands, is a  

voidable  title  which  in  law  is  liable  to  be  defeated  through  

appropriate  action  and  possession  of  such  granted  lands  

transferred in breach of the condition of prohibition could be  

recovered  by  the  grantor.  The  right  or  property  which  a  

transferee acquires in the granted lands, is a defeasible right  

and the transferee renders himself  liable to lose his right  or  

property  at  the  instance  of  the  grantor.  We  have  further  

observed  that  by  the  enactment  of  this  Act  and  particularly

Section 4 and Section 5 thereof, the Legislature is seeking to  

defeat  the  defeasible  right  of  the  transferee  in  such  lands  

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 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 connected  

with the legislative competence of the State.  Whereas the 1975  

Act  was  enacted  in  terms  of  Entry  6  List  III  of  the  Seventh  

Schedule of the Constitution of India providing for transfer of lands;  

the 1999 Act was enacted in terms of Entry 18 List II thereof. It  

reads as under :-

“18. Land, that is to say,  right in or over land, land tenures,  

including the relation of landlord and tenant, and the collection  

of  rents;  transfer  and  alienation  of  agricultural  land  ;  land  

improvement and agricultural loans; colonization.”  

The 1999 Act, thus, having confined itself to ‘agricultural land’,  

indisputably the State Legislature only has the requisite legislative  

competence therefor.  

It  is one thing to say that an enactment suffers from vice of  

colourable  legislation  on  the  premise  that  it  does  not  have  

legislative  competence  but  it  is  another  thing  to  say  that  only  

because the Act was amended purporting to nullify an earlier Act  

(in the words of the High Court), the same by itself would attract  

the said doctrine.  

For  invoking  the  doctrine  of  ‘Colourable  Legislation’  the  

legislature must have transgressed the limits of its constitutional  

power patently, manifestly and directly.  

The doctrine of ‘Colourable Legislation’, in our opinion, has no  

application in the instant  case.  The said doctrine is founded on  

legislative competence of the State. An act of mala fide on the part  

of the legislature also is beyond the province of judicial review. In  

fact no motive can be attributed to the Legislature for enacting a  

particular statute. The question in regard to the constitutionality of

the statute must be considered keeping in view only the provisions  

of the Constitution.

In K.C. Gajapathi Narayan Deo v. The State of Orissa [(1954)  

1 SCR 1], this Court held:

“9.  It  may be  made clear  at  the  outset  that  the  doctrine  of  

colourable legislation does not  involve any question of  bona  

fides or mala fides on the part  of the legislature.  The whole  

doctrine resolves itself  into the question of competency of a  

particular legislature to enact 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 Constitution.

*** ***      ***

13.  Bearing  in  mind  the  quintessential  aspects  of  the  rival  

contentions, let us stop and take stock. The facts of the case  

are plain. The professed object of the law is clear. The motive  

of  the  legislature  is  irrelevant  to  castigate  an  Act  as  a  

colourable  device.  The  interdict  on  public  mischief  and  the  

insurance of consumer interests against likely, albeit, unwitting  

or “ex abundanti cautela” excesses in the working of a statute  

are  not  merely  an  ancillary  power  but  surely  a  necessary  

obligation  of  a  social  welfare  state.  One  potent  prohibitory  

process  for  this  consummation  is  to  penalize  the  trader  by  

casting a no-fault or absolute liability to “cough up” to the State  

the total “unjust” takings snapped up and retained by him “by  

way of tax” where tax is not so due from him, apart from other  

punitive  impositions  to  deter  and  to  sober  the  merchants  

whose arts  of  dealing with  customers may include “many a  

little  makes  a  mickle’.  If  these  steps  in  reasoning  have  the  

necessary nexus with the power to tax under Entry 54 List II, it  

passes  one’s  comprehension  how  the  impugned  legislation  

can be denounced as exceeding legislative competence or as  

a  “colourable  device”  or  as  “supplementary,  not  

complementary’.”  

[See also Dharam Dutt and others v. Union of India, [(2004) 1  

SCC 712].”

The principles of determining the constitutionality of statute has  

been stated in  Gujarat  Ambuja Cements Ltd.  v.  Union of  India,  

[(2005) 4 SCC 214 ] thus:-

“28. Having determined the parameters of the two legislative  entries the principles for determining the constitutionality of a  

statute  come  into  play.  These  principles  may  briefly  be  

summarised thus:

(a) The substance of the impugned Act must be looked at to  

determine whether it is in pith and substance within a particular  

entry  whatever  its  ancillary  effect  may  be  [Prafulla  Kumar  

Mukherjee  v.  Bank  of  Commerce  Ltd., AIR  at  p.  65,  A.S.  

Krishna v. State of Madras, State of Rajasthan v. G. Chawla,   

Katra Educational Society v. State of U.P., D.C. Johar & Sons   

(P) Ltd. v. STO and Kannan Devan Hills Produce v. State of   

Kerala].

(b) Where the encroachment is ostensibly ancillary but in  

truth  beyond  the  competence  of  the  enacting  authority,  the  

statute  will  be  a  colourable  piece  of  legislation  and  

constitutionally invalid (A.S. Krishna v. State of Madras, A.B.  

Abdul Kadir v. State 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 Act, that should have been held to  

be the end of the matter. The High Court could not have, in our  

respectful opinion, entered into the said question through a side-

door  so  as  to  hold  that  the  transgression  of  the  limitations  of  

constitutional power may be disguised, covert or indirect.  

The High Court, in our opinion, again with utmost respect, has  

committed a fundamental  error  in failing to keep a distinction in  

mind in regard to the power of a law making authority which is of a  

qualified character and the power granted to a legislative authority  

which  is  absolutely  without  any  limitation  and  restriction,  being  

plenary in character.  

A  statute  in  view  of  the  decision  of  this  Court  in  Gujarat   

Ambuja Cements Ltd.  (supra), in the event of it being held within  

the  ambit  of  the  legislative  competence  of  the  State,  could  be  

declared ultra vires only on the premise that it is violative of the  

provisions  of  Part  III  of  the  Constitution  of  India  or  any  other

provisions but not on the ground of colourable exercise of power or  

mala fide on the part  of  the legislature.  The object,  purpose or  

design  referred  to  by  the  High  Court  should  be  taken  into  

consideration for the purpose of examining its constitutionality on  

the touchstone of the provisions of Part III of the Constitution of  

India and not otherwise. In that view of the matter, the High Court  

committed a serious error in relying upon Dwarkadas Shrinivas of  

Bombay v.  Sholapur  Spinning and Weaving Company Ltd.  and  

Others [AIR 1954 SC 119] and Jagannath Baksh Singh v. State of   

U.P. [AIR 1962 SC 1563], which did not deal with the question of  

legislative competence of  the legislature of  a State,  as was the  

question before the High Court.

No material was placed before the High Court to establish that  

the 1999 Act was confiscatory in nature.  

It  is  one  thing  to  say  that  a  citizen  of  India  having  been  

conferred with a right on lands by reason of a statutory provision,  

has  been  deprived  therefrom  without  payment  of  any  

compensation and,  thus,  the same would be violative  of  Article  

300A of the Constitution of India, but, it is another thing to say that  

on  that  ground  alone  the  legislation  should  be  held  to  be  a  

colourable one.

We have adverted to the statement of Objects and Reasons of  

the 1999 Act. The legislature had a broad object in mind. Whether  

the Act stands the scrutiny of limitations of the State’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.  

The question, in our opinion, should have been whether the  

statute is valid having been enacted to achieve the constitutional  

goal set out not only in Part III of the Constitution of India but also  

Part IV and IVA thereof.  

The rights conferred upon the class of persons including the  

protected class,  in  terms of  1975 Act,  were statutory in  nature.  

They cannot  be categorized as plainly constitutional  rights.  It  is  

one thing to say that some rights are constitutional in nature/origin  

being part of the expansive regime of Article 21, but, it would not  

be correct to raise the same to the exalted status of constitutional  

rights. A right which primarily flows from a statute, cannot claim its  

constitutional  pedigree  to  become  a  constitutional  threshold,

against which constitutionality of a statute can be tested. It is trite  

that a right which may be conferred by a statute can also be taken  

away by another.  

It  is  also  a  trite  law that  the  State  is  entitled  to  change its  

legislative  policy  having  regard  to  the  ground  realities  and  

changing societal condition. In fact, the legislature is expected to  

take steps for enacting a new statute or amending the same so as  

to keep pace with the changing societal condition as well as taking  

into  consideration  the  development  of  law,  both  domestic  and  

international.

The  High  Court,  in  our  opinion,  furthermore  committed  a  

serious  error  in  opining  that  although  the  legislature  had  the  

legislative competence to enact Act 12 of 1999, but nevertheless,  

proviso  to  Sections  5(1)  and  5(2)  thereof  would  be  held  to  be  

colourable. The High Court should have examined the question of  

their constitutionality on the touchstone of Articles 14 and 21 of the  

Constitution  of  India  and  not  on  the  premise  that  the  said  

provisions are colourable in nature.

PRESIDENTIAL ASSENT

13. It was held by the High Court that Presidential Assent was  

necessary  and  the  1999  Act  was  enacted  to  by-pass  the  

mandatory requirement of the President’s Assent. In determining  

the said issue, it  again ought to have posed unto itself the right  

question, viz., whether the Presidential Assent was necessary for  

enacting a statute which came within the purview of List II of the  

Seventh Schedule of the Constitution of India. The answer thereto  

must be rendered in negative.

The 1975 Act dealt with both agricultural and non-agricultural  

lands. Transfer of land 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 adverting to the said question, we may notice the  

background facts leading to the issuance of a writ of mandamus.  

Admittedly the State was not implementing the provisions of  

the 1975 Act.  Dr.  P. Nalla Thampy Thera filed O.P. No.8879 of  

1988 for direction upon the State and its officers to implement the  

provisions  of  the  1975  Act.  The  learned  Additional  Advocate  

General appearing for the State gave an undertaking to the effect

that  “utmost  steps  would  be  taken  for  the  disposal  of  the  

applications and that the Act would be enforced in all its rigour”, on  

the  basis  whereof  the  Original  Petition  was  allowed  on  15th  

October,  1993  directing  the  State  to  give  directions  to  the  

Authorities under the Act to dispose of the applications pending  

before them within six months of that date.  

As the State had taken extension of time by an order dated  

13th August, 1996, a learned Single Judge, inter alia, directed the  

Revenue  Divisional  Officers  to  cause  delivery  of  the  properties  

covered by orders for restoration against which no appeals were  

pending and in which no compensation was payable, forthwith and  

in any event within six weeks from that date.  

A writ appeal was preferred thereagainst and an interim order  

of  stay  was  passed  on  11th  October,  1996.  The  matter  was  

referred to a Full Bench. We have noticed heretobefore the order  

dated 25th November, 1998.

We have also noticed the order of the Full Bench dated 6th  

January, 1999.

The High Court was, thus, aware of the impending legislation.  

The extension of time was subject to a new legislation.  

The 1975 Act was a conditional legislation. It came into force  

with effect from 24th January, 1986. Directions were issued only in  

regard to implementation of the statutory provisions It was not a  

case where by reason of issuance of writ of mandamus, certain  

benefits were conferred on a person or a group of persons.  

In Madan Mohan Pathak (supra), the Calcutta High Court had  

issued  a  writ  of  mandamus  directing  the  Life  Insurance

Corporation to pay annual cash bonus to Class III  and Class IV  

employees for years April 1, 1975 to March 31, 1976 along with  

their  salary  for  the  month  of  April,  1976  as  provided  by  the  

Settlement.  The said decision attained finality  as Letters  Patent  

Appeal  preferred  thereagainst  had  been  withdrawn  by  the  Life  

Insurance  Corporation.  In  the  meantime  a  Parliamentary  Act,  

known as Life Insurance 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  did  not  have  the  effect  of  

absolving the Life Insurance Corporation from its obligation to

carry out the writ of mandamus. There was, according to the  

petitioners, nothing in the impugned Act which set at naught  

the effect of  the judgment of the Calcutta High Court  or the  

binding character of the writ of mandamus issued against the  

Life Insurance Corporation. This contention of the petitioners  

requires serious consideration and we are inclined to accept it.

1. It is significant to note that there was no reference to the  

judgment of the Calcutta High Court in the Statement of  

Objects  and  Reasons,  nor  any  non  obstante  clause  

referring to  a judgment  of  a  Court  in  Section 3 of  the  

impugned  Act.  The  attention  of  Parliament  does  not  

appear to have been drawn to the fact that the Calcutta  

High  Court  has  already  issued  a  writ  of  mandamus  

commanding the Life Insurance Corporation to pay the  

amount of bonus for the year April 1, 1975 to March 31,  

1976. It appears that unfortunately the judgment of the  

Calcutta High Court remained almost unnoticed and the  

impugned Act was passed in ignorance of that judgment.  

Section  3  of  the  impugned  Act  provided  that  the  

provisions  of  the  Settlement  insofar  as  they  relate  to  

payment of annual cash bonus to Class III and Class IV  

employees shall  not have any force or effect and shall  

not be deemed to have had any force or effect from April  

1, 1975. But the writ of mandamus issued by the Calcutta  

High  Court  directing  the  Life  Insurance  Corporation  to  

pay the amount of bonus for the year April  1,  1975 to  

March 31, 1976 remained untouched by the impugned  

Act.  So  far  as  the  right  of  Class  III  and  Class  IV  

employees  to  annual  cash bonus for  the year  April  1,

1975  to  March  31,  1976  was  concerned,  it  became  

crystallised in the judgment and thereafter they became  

entitled to enforce the writ of mandamus granted by the  

judgment and not any right to annual cash bonus under  

the Settlement.  This right  under the judgment was not  

sought  to  be  taken  away  by  the  impugned  Act.  The  

judgment  continued  to  subsist  and  the  Life  Insurance  

Corporation  was  bound  to  pay  annual  cash  bonus  to  

Class III  and Class IV employees for the year  April  1,  

1975  to  March  31,  1976  in  obedience  to  the  writ  of  

mandamus. The error committed by the Life Insurance  

Corporation  was  that  it  withdrew  the  Letters  Patent  

Appeal and allowed the judgment of the learned Single  

Judge 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  Life  Insurance  Corporation  could  

claim to be absolved from the obligation imposed by the  

judgment to carry out the writ of mandamus by relying on  

the impugned Act.”.

Madan  Mohan  Pathak  (supra)  has  been  followed  in  P.  

Venugopal v. Union of India, [ (2008) 5 SCC 1 ], wherein it was  

opined :-

“As in Mohan Pathak case (para 8), as quoted hereinabove, in  

the instant case also Parliament does not seem to have been  

apprised about  the pendency of  the proceedings before  the  

Delhi  High  Court  and  this  Court  and  declaration  made  and  

directions issued by the Delhi High Court at different stages. In  

the impugned amendment,  there is no non obstante clause.  

The impugned amendment introducing the proviso, therefore,  

cannot be treated to be a validating Act.”

A  distinction  must  be  made  between  issuance  of  writ  of  

mandamus conferring right upon a person or class of persons and  

the one directing implementation of the Act. However, in this case  

while the learned Single Judge of the High Court issued a direction  

that the applications filed by the members of the Scheduled Tribes  

should be determined by the Revenue Authorities in terms of the  

provisions of the 1975 Act; the same, in our opinion, did not mean

that the High Court itself had issued a writ of mandamus directing  

restoration of the lands in question.  

As  in  most  of  the  cases members  of  the  Scheduled  Tribes  

have not been paid compensation through their vendees in terms  

of the provisions of 1975 Act. They did not attain finality. If that be  

so,  in  our  opinion  question  of  invoking  the  decision  of  Madan  

Mohan Pathak  (supra) in the factual matrix involved herein does  

not arise.  

Further, it is one thing to say that a writ of mandamus shall be  

obeyed despite  passing of  a subsequent  Act  as it  had attained  

finality  or  that  it  had  not  been  brought  to  the  notice  of  the  

Legislature, but it is another thing to say that no writ of mandamus  

was  issued  conferring  rights  upon  the  parties.  Directions  to  

implement  the provisions of  the Act  by itself  did not  confer  any  

right upon the parties. The lis has to be adjudicated upon. It did not  

attain finality in that sense of the term.

We may notice that  scope of  Madan Mohan Pathak  (supra)  

has been explained in Indian Aluminium Co. (supra), stating :-  

“49. In Madan Mohan Pathak v. Union of India, on the basis of  

a settlement, bonus became payable by the LIC to its Class III  

and  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 Beg who in a separate  

judgment  had  pointed  out  that  the  basis  of  the  mandamus  

issued by the court could not be taken away by indirect fashion  

as observed at p. 743,  C  to  F.  From  the  observations  

made by Bhagwati, J. per majority, it is clear that this Court did  

not intend to lay down that Parliament, under no circumstance,  

has power to amend the law removing the vice pointed out by  

the court. Equally, the observation of Chief Justice Beg is to be  

understood  in  the  context  that  as  long  as  the  effect  of  

mandamus  issued  by  the  court  is  not  legally  and  

constitutionally made ineffective,  the State is bound to obey  

the directions.  Thus understood, it  is unexceptionable. But it  

does not mean that the learned Chief Justice intended to lay  

down the law that mandamus issued by court cannot at all be  

made  ineffective  by  a  valid  law  made  by  the  legislature,  

removing the defect pointed out by the court.”

Madan Mohan Pathak (supra), thus, stood explained in Indian  

Aluminium Co. v. State of Kerala  (supra) to be understood in the  

context that as long as the effect of mandamus issued by the court  

is  not  legally  and  constitutionally  made ineffective,  the  State  is  

bound to obey the directions.  

Yet again, in National Agricultural Coop. Marketing Federation  

of  India  Ltd.  v.  Union  of  India, [(2003)  5  SCC  23],  explaining  

Madan Mohan Pathak, it has been held :-  

“26. The decision is an authority for the principle that a judicial  decision which has become final inter partes, cannot be set at  

naught by legislative action, a principle that is well entrenched.  

Therefore,  if,  as  has  been  contended  by  the  appellant,  the  

High Court in 1981 had in proceedings between the appellant  

and the Revenue held that the appellant was entitled to the  

benefit of the deduction under Section 80-P(2)(a)(iii) of the Act,  

and the Revenue has not impugned the High Court’s decision,  

that  decision  binds  the  parties  for  the  assessment  years  in  

question  and  cannot  be  reopened  because  of  the  1998  

Amendment.  This  principle,  however,  does  not  in  any  way  

detract  from the principle that  the legislature may “cure”  the  

statute so that it more correctly represents its intention. Such  

curative  legislation  does  not  in  fact  touch  the  validity  of  a  

judicial decision which may have attained finality albeit under  

the pre-amended law.”

In Mylapore Club v. State of T.N. [ (2005) 12 SCC 752 ], P.K.  

Balasubramanyan, 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 court of law would not be  

binding,  as  the  legislature  does  not  possess  that  power.  A  

decision of a court of law has a binding effect unless the very  

basis upon which it is given is so altered that the said decision  

would not have been given in the changed circumstances.”

The reason is not far to seek. The Legislature can not over-rule  

a judgment but it can remove the basis on which the judgment has  

been rendered.  

The Act was implemented both in respect of those who had  

two acres of land and those who had more.

The 1999 Act removes the basis for passing of the judgments  

so far as the applications for restoration filed by Members of the  

Scheduled Tribes in regard to their lands which was less than 2  

hectares is concerned.  

It  provides that the term ‘land’ would mean ‘only agricultural  

land’ and the application for restoration shall lie only in case where  

the extent of the land exceed two hectares. (See Section 2(b) and  

Section 5 of 1999 Act).

Admittedly,  the  1999 Act  was made effective  retrospectively  

from 24th day of January, 1986. It contains a Repeal and Savings  

clause.  In  that  view  of  the  matter,  in  our  opinion,  it  was  not  

necessary to term the statute as a validating statute containing a  

non-obstante clause.  

It is difficult to conceive, having regard to the orders issued by  

the Full Bench, that the Legislature were not aware of the orders  

passed by the High Court. In any event the Full Bench of the High  

Court has stated that the directions issued by it would be subject to  

the new enactment.  

We, therefore, are of the opinion that  Madan Mohan Pathak  

(supra) has no application to the present cases.  

VESTED RIGHT VIS-À-VIS ARTICLE 14

15. A vested right has been defined in P. Ramanatha Aiyar’s  

Advanced Law Lexicon, 3rd edition, page 4888, in the following  

terms:

“Vested rights. Property rights.

The  expression  ‘vested  right’  means  an  absolute  or  

indefeasible right. It is an immediate fixed right in present or

future enjoyment in respect of property.  The claim based on  

the  vested  right  or  settled  expectation  to  obtain  sanction  

cannot  be  set  up  against  statutory  provisions.  It  cannot  be  

countenanced against public interest and conveniences which  

are sought to be served.”

In  Southern  Petrochemical  Industries  Co.  Ltd.  v.  Electricity   

Inspector & ETIO [(2007) 5 SCC 447], this Court held:

“106. Furthermore, exemption 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 Tribes long back. Such transactions, when entered into,  

were valid being not  barred by any statute.  The vendees,  thus,  

acquired  indefeasible  right.  They,  however,  were  invalidated  by  

Section 5 of the 1975 Act. The consequence of rendition of such  

transactions as invalid was to restore the lands back to possession  

of the tribals wherefor certain procedural requirements were to be  

complied with. The 1975 Act, however, was only brought into force  

in  1986,  that  too  with  retrospective  effect  from  1982.  In  the  

meanwhile, many purchasers again acquired prescriptive rights. It  

was furthermore made effective only when the Rules were framed  

in 1986.  

The right of restoration was of two kinds, one, in respect of  

agricultural land and the other in regard to non-agricultural land.  

We intend to deal with them separately. Indisputably, despite the  

1975 Act having been brought in force and the Rules having been  

framed for the effective implementation thereof, the State and the  

Revenue Officers took no steps for implementation therefor for a  

long time. The process started only when a writ of mandamus was  

issued by the High Court. For its implementation, the substance of  

the proceedings has been noticed by us heretobefore. The 1975  

Act  and  the  1986  Rules  provided  for  several  stages.  The  

procedure  laid  down  in  the  1986  Rules  consists  of  filing  of  

application for restoration, calling for objections, determination of  

the issues, filing of appeals. Once that stage reached finality, the  

applicants are required to pay compensation to the land holder in  

terms  of  Section  9  of  the  1975  Act  which  was  a  condition  

precedent therefor.

The  1975  Act  contemplated  raising  of  loan  from  the  

government by the members of the Scheduled Tribe, subject to the  

conditions laid down in the Rules. The procedure for grant of loan  

and consequent payment of compensation to the owners of land  

was a pre-condition for actual restoration thereof.  

When, thus, loans are raised and amount of compensation is  

paid to the transferees, in our opinion, only then the vested right  

for getting back possession of the lands gets accrued and not prior  

thereto.  We say  so  because  the  1975  Act  itself  provides  for  a  

statute depriving the land holders from a right of property, which is  

otherwise protected by reason of Article 300-A of the Constitution  

of India. It is also a human right. [See  Vimlaben Ajitbhai Patel v.   

Vatslaben  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 Act,  by  

reason whereof if he has been in possession thereof for a period of  

more than 12 years, he would have acquired an indefeasible right  

thereto despite the fact that the transaction has been invalidated  

by a later Act. It was so held in Manchegowda (supra). Therein, a  

distinction  was  made  between  a  defeasible  right  and  an  

indefeasible right and this Court was concerned with a transaction  

which was voidable in nature.  

It is, however, not a case where a transfer has been made in  

contravention of the terms of the grant or any law, regulation or  

rule  governing  such  grant  which  could  be  legally  avoided  or  

possession  thereof  could  be recovered  through process of  law.  

Therein, this Court clearly held:

“24. Though we have come to the conclusion that the Act  is valid, yet, in our opinion, we have to make certain aspects  

clear.  Granted  lands  which  had  been  transferred  after  the  

expiry  of  the  period  of  prohibition  do  not  come  within  the  

purview of the Act, and cannot be proceeded against under the  

provisions  of  this  Act.  The  provisions  of  the  Act  make  this  

position clear,  as Sections 4  and 5 become applicable  only  

when granted lands are transferred in breach of the condition  

relating  to  prohibition  on  transfer  of  such  granted  lands.  

Granted  lands transferred before  the commencement  of  the  

Act  and  not  in  contravention  of  prohibition  on  transfer  are

clearly beyond the scope and purview of the present Act. Also  

in case where granted lands had been transferred before the  

commencement  of  the  Act  in  violation  of  the  condition  

regarding prohibition on such transfer and the transferee who  

had initially acquired only a voidable title 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,  such  granted  lands  

would also not come within the purview of the present Act, as  

the  title  of  such transferees  to  the  granted lands has been  

perfected before the commencement of the Act. Since at the   

date  of  the  commencement  of  the  Act  the  title  of  such  

transferees had ceased to be voidable by reason of acquisition   

of prescriptive rights on account of long and continued user for   

the requisite period, the title of such transferees could not be   

rendered void by virtue of  the provisions of  the Act  without  

violating the constitutional guarantee. We must, therefore, 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 agricultural land; registration  

of deeds and documents.

7.  Contracts,  including  partnership,  agency,  contracts  of  

carriage, and other special forms of contracts, but not including  

contracts relating to agricultural lands.”

The words  “other  than agricultural  land”  in  Entry  6  and the  

words “but not including contracts relating to agricultural land”  

in Entry 7 in List III have the effect of delimiting the legislative  

power of the Union to make a law with respect to transfers and  

alienations of agricultural lands or with respect to contracts in  

relation thereto. The power to legislate cannot be denied to the  

State on the ground that the provisions of Sections 3(1) and 4  

which provide for annulment of transfers by tribals incidentally  

trench upon the existing law, namely, the Transfer of Property  

Act, 1882 or a law made by Parliament viz. the Specific Relief  

Act, 1963. The power of the State Legislature to make a law  

with respect to transfer and alienation of agricultural land under  

Entry 18 in List II carries with it not only a power to make a law  

placing restrictions on transfers and alienations of such lands  

including a prohibition thereof, but also the power to make a  

law to reopen such transfers and alienations. Such a law was

clearly  within  the  legislative  competence  of  the  State  

Legislature being relatable to Entry 18 in List II of the Seventh  

Schedule.”

It was observed:

“…That apart,  members of Scheduled Tribes i.e.  tribals who  

are mostly aboriginals constitute a distinct class who need a  

special protection of the State. Further, the question as to how  

far  and  by  what  stages  such  laws  are  to  be  implemented  

involves a matter of policy and therefore beyond the domain of  

the  courts.  Secondly,  the  Act  no  doubt  makes  a  distinction  

between a  non-tribal  transferee  who had diverted  the  lands  

obtained by him under a transfer from a tribal during the period  

from April 1, 1957 to July 6, 1974 and had put such lands to  

non-agricultural purpose, and other non-tribal transferees who  

got into possession under transfers effected by tribals during  

the same period but continued to use the lands for agricultural  

purposes.  There is  no question  of  any differential  treatment  

between two classes of persons equally situate. When a part  

of  the land is diverted to a non-agricultural  purpose viz.  the  

construction  of  a  dwelling  house  or  the  setting  up  of  an  

industry, the State Legislature obviously could not have made  

a law for annulment of transfer of such lands by tribals under  

Entry 18 in List II as the lands having been diverted to 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 Interest and Land Transfer Act,  1917. Those areas were  

notified  as  Scheduled  Areas  after  coming  into  force  of  the  

Constitution  by  reason  of  the  Scheduled  Area  (Part  ‘A’  States)  

Order, 1950. By reason of the power conferred on the Governor of  

the  State  by  Para  5(2)  of  the  Fifth  Schedule,  the  regulations  

named as A.P. Scheduled Areas Land Transfer Regulation, 1959  

were made. In the aforementioned backdrop, it was opined:

“19…The community cannot shut its eyes to the fact that the  

competition between the “tribals” and the “non-tribals” partakes  

of the character of a race between a handicapped one-legged  

person and an able-bodied two-legged person. True, transfer  

by “non-tribals” to “non-tribals” would not diminish the pool. It  

would maintain status quo. But is it sufficient or fair enough to  

freeze the exploitative deprivation of the “tribals” and thereby  

legalize and perpetuate the past wrong instead of effacing the

same? As a matter of fact it would be unjust, unfair and highly  

unreasonable  merely  to  freeze  the  situation  instead  of  

reversing the injustice and restoring the status quo ante. The  

provisions  merely  command that  if  a  land  holder  voluntarily  

and on his own volition is desirous of alienating the land, he  

may do so only in favour of a “tribal”. It would be adding insult  

to  injury to  impose such a disability  only  on the tribals  (the  

victims  of  oppression  and  exploitation  themselves)  and  

discriminate against them in this regard whilst leaving the “non-

tribals” to thrive on the fruits of their exploitation at the cost of  

“tribals”.  The  “non-tribal”  economic  exploiters  cannot  be  

installed on the pedestal of immunity and accorded a privileged  

treatment  by  permitting  them  to  transfer  the  lands  and  

structures,  if  any,  raised on such lands,  to  “non-tribals”  and  

make  profits  at  the  cost  of  the  tribals.  It  would  not  only  

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  

counterproductive to do so.”

However, in K.T. Huchegowda v. Dy. Commissioner [(1994) 3  

SCC 536], this Court held:

“8.  On  a  plain  reading,  granted  land  will  mean,  any  land  

granted by the Government to a person, who is a member 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 being dispossessed  

from the lands which belong to them and of which they are  

absolute owners, for purpose of extinguishment of their title by  

adverse  possession,  have  prescribed  special  period  of  

limitation,  saying  that  it  shall  be  30  years.  In  Bihar,  vide  

Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it  

has been prescribed that it  would be 30 years in respect of  

immovable property belonging to a member of the Scheduled  

Tribes  as  specified  in  Part  III  to  the  Schedule  to  the  

Constitution (Scheduled Tribes) Order, 1950.

9. There is no dispute that so far as the Act with which we are  

concerned, no special period of limitation has been prescribed,  

in respect of lands which have been granted to the members of

the  Scheduled  Castes  and  Scheduled  Tribes  with  absolute  

ownership by the State Government. In this background, when  

this Court  in the case of  Sunkara Rajayalakshmi v. State of  

Karnataka  said that the period of limitation, which has to be  

taken into account for the purpose of determining, whether the  

title  has been perfected by prescription,  shall  be that  which  

runs against the State Government and therefore it would be  

30 years and not 12 years, has to be read in context with the  

lands,  the  ownership  whereof,  has  not  been  transferred  

absolutely,  to  the  members  of  the  Scheduled  Castes  and  

Scheduled Tribes; the lands having been only allotted to them,  

the  title  remaining  with  the  State  Government.  The  cases  

where the transfer by the State Government by way of grant  

has been absolute, then unless there is an amendment so far  

the period of limitation is concerned, it is not possible to apply  

the  special  limitation  of  30  years,  so  far  such grantees  are  

concerned,  when  the  question  to  be  determined,  is  as  to  

whether a transferee in contravention of the terms of the grant,  

has perfected his title by remaining in continuous and adverse  

possession. The transferee, who has acquired the land from  

the grantee,  in contravention of  the terms of  the grant  shall  

perfect  his  title  by  adverse  possession  by  completing  the  

period of 12 years. When this Court said in its main judgment,  

in  the  case  of Manchegowda  v.  State  of  Karnataka  that  in  

cases where granted lands had been transferred before the  

commencement  of  the  Act  in  violation  of  the  condition,  

regarding prohibition on such transfer and the transferee who  

had initially acquired only a voidable title, 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 compensation has not actually been  

tendered, the vendees of the land could not be deprived of their  

right to be dispossessed. In that view of the matter, a distinction  

must be made between a case where an amount of compensation  

has been paid and in a case where it has not been. If a vested  

right  has  not  been  taken  away,  the  question  of  applicability  of  

Article 14 of the Constitution of India would not arise.  

The High Court, however, proceeded to apply Article 14 of the  

Constitution of India on the premise that the provisions of the 1999  

Act clearly seek to destroy the right conferred on Scheduled Area

by Act  31  of  1975.  The approach  of  the  High  Court  being  not  

correct, the same cannot be sustained.

REASON FOR AMENDMENT

16. This brings us to the question as to whether the 1999 Act is  

invalid  inter  alia  because  the  State  was  apprehensive  that  the  

assignees may offer  organized resistance for  implementation  of  

the 1975 Act and the State wanted to avert a conflict between the  

tribals and the non-tribals. The short answer to the said question is  

that  the State cannot  shut  its  eyes to the ground realities.  The  

Statement  of  Objects and Reasons would clearly show that  the  

State did not take an action in a half-hearted manner. It consulted  

the tribal organizations. It is stated in its Counter Affidavit by the  

State before the High Court as under:

“… Under the above circumstances, urgent steps were taken  

to have discussion with the various tribal organisations did not  

insist upon getting the very same land that had been alienated  

but  would prefer  to  obtain an equal  extent  of  land from the  

Government. Many organisations did not insist that the Act 31  

of  1975  should  be  implemented  in  its  original  form.  The  

Government also had serious discussions with various political  

parties  and other  concerned with  tribal  welfare.  Discussions  

were  also  held  with  the  present  occupants  of  the  alienated  

tribal lands.

On  the  basis  of  the  discussions  and  deliberations  the  

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.”

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 enable the  

court to arrive at a conclusion that the State’s action was arbitrary.  

It is furthermore a well-settled principle of law that the superior  

court  in  exercise  of  their  power  of  judicial  review of  legislation  

would  not  ordinarily  determine  the  merit  of  the  legislation  by  

entering  into  a  broad  question  as  to  whether  materials  placed

before  the  Legislature  were  sufficient  for  bringing  out  the  

legislation in question or not.  

Such  inquisitorial  inquiry  on  the  part  of  the  court,  in  our  

opinion, is beyond the province of the court.

BENEFICIENT  NATURE  OF  THE  1999  ACT  VIS-A-V-S  1975  ACT

17. 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 were framed  

only on 18.10.1986. Act 12 of 1999, however, came into force on  

20.04.1999 but  was  given a retrospective  effect  and retroactive  

operation from 24.01.1986.  

We heretobelow may notice a comparative chart of the salient  

provisions of the two Acts:

Act  31/75  –  Came  into  force  on  

01.01.1982 Pages 135 – 142

2(b)  “Immovable  property”  defined  as  

including  standing  crops  and  trees.  

Act applies to such property

4.Transfer  of  any  immovable  property  

by  a  tribal  to  a  non  tribal  without  

previous  consent  of  competent  

authority after commencement of the  

Act shall be void.

5.Transfer  of  immovable  property  by  

Tribal  to  non  tribal  after  01.01.1960  

shall be deemed to be invalid

6(1) The  Tribal  whose  transfer  is  

invalidated  under  Sections  4  and  5  

shall  be  entitled  to  restoration  of  

possession of the property.

Sub Section (5) provide for a remedy  

of appeal to the aggrieved persons to  

the competent authority.

7. Govt. may take Suo-moto action for  

restoration

11.  Where  possession  is  restored  to  

tribal  under Section 6 he shall  pay to  

the  quantum  transferee  the  

consideration  received  as  also  the  

value  of  the  improvement  effected  by  

the  transferee  as  determined  by  the  

competent authority.

12. Government may advance loans to  

tribal for; payment of the amount u/s.11  

to  be  repaid  in  half  yearly  or  annual  

instalment and to be recovered as an  

arrear of land revenue if kept in arrears.

8.1 Similar to section 11 of Act 31 of 75

9. Government shall provide grant to eligible tribal/liable to pay the  

amount under Section 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 their own lands constituted in forest areas.

In the counter-affidavit filed by the State, it is stated:

“It is submitted that the Government found that Act 31 of 1975  

would  not  really  serve  the  purpose  of  ameliorating  the  

problems of the scheduled tribes and might instead lead to law  

and  order  situation  in  various  parts  of  the  State.  After  a  

comprehensive  study  of  the  matter  the  Government  passed  

Act 12 of 1999. The allegation that the intention of Act 12 of  

1999 is other than protection of the rights of schedule tribes is  

incorrect and denied. A reading of all the provisions of the Act  

12 of 1999 would make it clear that the legislature has kept the  

over all interests of the tribals and all the people of the State is  

general while enacting Act 12 of 1999. It is submitted that no  

right conferred by Act 31 of 1975 has been taken away by Act  

12 of  1999.  The allegation that  Act  12 of  1999 is  meant  to

protect  the  right  of  tribals  is  incorrect  and  is  denied.  It  is  

submitted that the various provisions of Act  12 of  1999 had  

already been delineated elsewhere in the counter affidavit and  

the reasons for  the enactment  of  Act  12 of  1999 have also  

been explained.”

Out of 4724 applications for restoration filed, 1475 applications  

involved transfer of less than 50 cents, 898 applications involved  

transfer of “extent between 50 cents and 1 acre”, 904 applications  

covered cases of “transfer of extent between 1 and 2 acres and  

1074 applications related to “transfer of extent between 2 acres  

and  5  acres  and  that  only  373  applications  involved  cases  of  

transfer of more than 5 acres or 2 hectares.  

The State has clearly brought on record the fact  that it  had  

conducted further studies wherefrom it came to learn that about  

12,000 tribal families in the State did not possess any land of their  

own and 30,000 families did not have any house of their own.

It is necessary, according to us, to bear in mind that the law  

postulates grant of compensation in a case where the right on a  

land is sought to be taken away. The 1975 Act postulates grant of  

compensation to the alienees, the amount wherefor was required  

to  be  determined  by  a  competent  authority.  The  amount  of  

compensation so determined was to be paid by the members of  

the Scheduled Tribe to their vendees in respect whereof he was to  

take loan from the State.  The amount  of  loan taken was,  thus,  

required to be repaid. 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 right to life and liberty. Would it bring  

within its umbrage a right of tribals to be rehabilitated in their own  

habitat  is  the  question?  If  the  answer  is  to  be  rendered in  the  

affirmative, then, for no reason whatsoever even an inch of land  

belonging to a member of Scheduled Tribe can ever be acquired.  

Furthermore,  a  distinction  must  be  borne  between  a  right  of  

rehabilitation  required  to  be  provided  when  the  land  of  the  

members  of  the  Scheduled  Tribe  are  acquired  vis-à-vis  a  

prohibition  imposed  upon  the  State  from  doing  so  at  all.  The  

question must be considered from another angle. The Scheduled  

Tribes are not in an agency area or Scheduled Area. The literacy  

rate of the tribals of Kerala is 57% which is much more than the

national  average.  Most  of  the  tribal  children  have  elementary  

education. In the schools and colleges of Kerala, Malayalam, Tamil  

or English is taught. It has been noticed by various writers that the  

tribal teachers have not been interacting with the students in the  

tribal  terms  and,  thus,  gradually  the  tribal  students  have  lost  

respect for their language and begun to disregard their language,  

their culture and, thus, their own primitive way of life. [See Tribes  

of Kerala – Identity Crisis by Rayson K. Alex]

The learned author states:

“What is the criterion for the government to label a tribe as a  

“scheduled”  tribe  in  the  constitution?  Has  the  government  

conducted  a  detailed  study  on  the  culture,  traditions,  their  

interrelationship  with  the  place  they  live  in,  their  socio-

economic  structures  and  judiciary  before  labeling  them  as  

“scheduled” tribes? The reason for this categorization can be  

attributed  to  their  “supposed”  backwardness  and  not  their  

distinct  identity  from  the  dominant  society  of  the  country.  

Without  taking  into  consideration  aforementioned aspects  of  

the culture of the tribes, to create “awareness” and to finally  

“develop” (in the narrow sense of the word) them, the tribes  

were forced to merge and condition themselves along the lines  

of the so-called “main-stream” Indian society. “When that was  

challenged,  the  ideologues  of  the  aggressing  society  

presented  the  theory  of  “integration”  which  in  reality  is  the  

other side of the same coin. And now has come the final blow  

from the armory of the India state for the indigenous people of  

the country in the form of total denial of their existence in India.  

“India  does not  have  indigenous  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  Indigenous  and  Tribal  Populations  

Convention, 1957 which has been ratified by 27 countries including  

India contained following clauses:

“Article 11  

The right of ownership, collective or individual, of the members  

of  the  populations  concerned  over  the  lands  which  these  

populations traditionally occupy shall be recognised.  

Article 12

1.  The populations concerned shall  not  be removed without  

their  free  consent  from  their  habitual  territories  except  in  

accordance  with  national  laws  and  regulations  for  reasons  

relating  to  national  security,  or  in  the  interest  of  national  

economic development or of the health of the said populations.  

2.  When  in  such  cases  removal  of  these  populations  is  

necessary as an exceptional measure, they shall be provided  

with  lands  of  quality  at  least  equal  to  that  of  the  lands  

previously  occupied  by  them,  suitable  to  provide  for  their  

present  needs  and  future  development.  In  cases  where  

chances  of  alternative  employment  exist  and  where  the  

populations concerned prefer to have compensation in money  

or  in  kind,  they shall  be so compensated under  appropriate  

guarantees.  

3. Persons thus removed shall be fully compensated for any  

resulting loss or injury.  

Article 13  

1. Procedures for the transmission of rights of ownership and  

use  of  land  which  are  established  by  the  customs  of  the  

populations  concerned  shall  be  respected,  within  the  

framework of national laws and regulations, in so far as they  

satisfy the needs of these populations and do not hinder their  

economic and social development.  

2.  Arrangements shall  be made to prevent persons who are  

not  members  of  the  populations  concerned  from  taking  

advantage of these customs or of lack of understanding of the  

laws on the part of the members of these populations to secure  

the ownership or use of the lands belonging to such members.”

Thus,  removal  of  the  population,  by  way  of  an  exceptional  

measure, is not ruled out. It  is only subject to the condition that  

lands  of  quality  at  least  equal  to  that  of  the  lands  previously  

occupied by them, suitable to provide for their present needs and  

future development. We may, however, notice that this Convention  

has not been ratified by many countries in the Convention held in  

1989. Those who have ratified the 1989 Convention are not bound  

by it.

Furthermore, the United Nations adopted a declaration on the  

rights of indigenous peoples 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  

autonomy for  tribal  people  and it  has voted in  favour  of  United  

Nations  declaration  on  the  rights  of  indigenous  people  which  

affirms various rights to autonomy that  are inherent in the tribal  

peoples of the world. This declaration, however, is not binding.

This Court furthermore in Narmada Bachao Andolan v. Union  

of  India and Others [(2000)  10 SCC 664]  while  considering the  

validity of acquisition of lands by the State of Madhya Pradesh for  

a project known as Sardar Sarovar Project (SSP) by constructing a  

dam on river Narmada as a result whereof the residence of tribals  

in various States, viz., Madhya Pradesh, Gujarat, Maharashtra and  

Rajasthan were affected, opined as under:

“62.  The displacement  of  the  tribals  and other  persons  

would not per se result in the violation of their fundamental or  

other rights. The effect is to see that on their rehabilitation at  

new locations they are better off than what they were. At the  

rehabilitation sites they will  have more and better  amenities  

than those they enjoyed  in  their  tribal  hamlets.  The gradual  

assimilation  in  the  mainstream  of  the  society  will  lead  to  

betterment and progress.”

For the purpose of going into the question with regard to the  

adjudication of  the water dispute regarding the inter-State River  

Narmada and the river valley thereof in terms of the provisions of

the inter-State Water Disputes Act, the award inter alia provided  

for relief and rehabilitation stating that no submergence of an area  

would take place unless the oustees are rehabilitated.

This Court referred to Article 12 of the ILO Convention No. 107  

holding:

“58.  The  said  article  clearly  suggested  that  when  the  

removal of the tribal population is necessary as an exceptional  

measure, they shall  be provided with land of quality at least  

equal to that of the land previously occupied by them and they  

shall be fully compensated for any resulting loss or injury. The  

rehabilitation package contained in the award of the Tribunal  

as  improved  further  by  the  State  of  Gujarat  and  the  other  

States prima facie shows that the land required to be allotted  

to the tribals is likely to be equal, if not better than what they  

had owned.”

Noticing that construction of a dam is of utmost importance for  

development  of  the  country  as  it  plays  an  important  role  in  

providing irrigation for food security, domestic and industrial water  

supply,  hydroelectric  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  persons,  the  requirement  of  relief  and  

rehabilitation of  PAFs in the case of  Sardar Sarovar Project  

was considered by the Narmada Water Disputes Tribunal and  

the  decision  and  final  order  of  the  Tribunal  given  in  1979  

contains detailed directions in regard to acquisition of land and  

properties, provision for land, house plots and civic amenities  

for the resettlement and rehabilitation of the affected families.  

The  resettlement  policy  has  thus  emerged  and  developed  

along with the Sardar Sarovar Project.”

This Court opined that where two views are permissible, the  

court  ordinarily  would  not  sit  in  appeal  over  a  policy  decision  

adopted by the government. Regarding displacement of people on  

proposed project, it was held:

“…It  is  not  fair  that  tribals  and  the  people  in  undeveloped  

villages  should  continue  in  the  same condition  without  ever  

enjoying the fruits of science and technology for better health  

and  have  a  higher  quality  of  lifestyle.  Should  they  not  be  

encouraged to seek greener pastures elsewhere, if  they can

have  access  to  it,  either  through  their  own  efforts  due  to  

information exchange or due to outside compulsions. It is with  

this object in view that the R&R plans which are developed are  

meant to ensure that those who move must be better off in the  

new locations  at  government  cost.  In  the  present  case,  the  

R&R packages of  the States,  specially  of  Gujarat,  are such  

that  the living conditions of  the oustees will  be much better  

than what they had in their tribal hamlets.”

As regards the question of  necessity  to  balance the loss of  

forest because of activities carried on therein and construction of a  

dam, it was held:

“242.  The  loss  of  forest  because  of  any  activity  is  

undoubtedly  harmful.  Without  going  into  the  question  as  to  

whether the loss of forest due to river valley project because of  

submergence is negligible, compared to deforestation due to  

other reasons like cutting of trees for fuel, it is true that large  

dams cause submergence leading to loss of forest areas. But it  

cannot be ignored and it is important to note that these large  

dams also cause conversion of wasteland into agricultural land  

and  make the  area  greener.  Large  dams can  also  become  

instruments  in  improving  the  environment,  as  has  been  the  

case  in  western  Rajasthan,  which  transformed into  a  green  

area because of Indira Gandhi Canal which draws water from  

Bhakra Nangal Dam. 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 decided by a Bench of five Judges. In Samatha case, it is a  

Bench  of  three  Hon’ble  Judges  who  by  majority  of  2:1,  

interpreted  the  Fifth  Schedule  of  the  Constitution.  However,  

what  is  important  to  note  here  is,  as  already  observed  

hereinabove, that the provisions of the Madhya Pradesh Land  

Revenue Code, 1959 and Section 165, in particular, are not in  

pari  materia  with  the  aforesaid  Section  3  of  the  Andhra  

Pradesh Regulation.”

Furthermore,  the  cut-off  date  in  terms of  the  1975 Act  was  

1.01.1960. Any transaction which had taken place between 1960  

and 1975 and thereafter  had been declared invalid.  Admittedly,  

even after the provisions thereof having been given full effect, the

members of the Scheduled Tribe had not been put in possession  

of their own land for decades.  

Furthermore, we have noticed hereinbefore that the members  

of the Scheduled Tribe are educated and we can safely presume  

that most of them are serving various institutions in the State of  

Kerala and/ or in other parts of India.  

Indisputably,  the  question  of  restoration  of  land  should  be  

considered having regard to their exploitation and rendering them  

homeless from the touchstone of Article 46 of the Constitution of  

India.  For  the  aforementioned  purpose,  however,  it  may  be  of  

some interest to consider that the insistence of autonomy and the  

view of a section of people that tribals should be allowed to remain  

within their own habitat and not be allowed to mix with the outside  

world would depend upon the type of Scheduled Tribe category in  

question. Some of them are still living in jungle and are dependant  

on the products thereof. Some of them, on the other hand, have  

become  a  part  of  the  mainstream.  The  difference  between  

Scheduled Tribes of North-East and in some cases the Islands of  

Andaman and Nicobar, on the one hand, and of those who are on  

the highlands and plains of the Southern regions must be borne in  

mind.

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.

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 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  would  be  entitled  to  take  

recourse to such remedies which are available to them in law.

We must  also  make  it  clear  that  while  allotting  land  to  the  

members of the Scheduled Tribe, the State cannot and must not  

allot them hilly or other types of lands which are not at all fit for  

agricultural purpose. The lands, which are to be allotted, must be  

similar  in  nature  to  the  land  possessed  by  the  members  of  

Scheduled Tribe. If in the past, such allotments have been made,  

as has been contended before us by the learned counsel for the  

respondent, the State must allot them other lands which are fit for  

agricultural purposes. Such a process should be undertaken and  

completed  as  expeditiously  as  possible  and  preferably  within  a  

period of six months from date.  

EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY  REVIVING OF THE OLD ACT  

20. Whether striking down of an enactment as unconstitutional  

would result in automatic revival of an earlier Act which has been  

repealed? The High Court wherefor, as noticed hereinbefore, has  

struck down Section 22 of 1999 Act providing for repeal of 1975  

Act. On the aforesaid premise it was held that the effect must be  

given to the right accrued under the 1975 Act.  

Sections 6(1) and 7 of the General Clauses Act, 1897, which  

are relevant for this purpose, read as under :-

“6. Effect of repeal.  

Where this Act, or any Central Act or Regulation made after  

the commencement of this Act, repeals any enactment hitherto  

made  or  hereafter  to  be  made,  then,  unless  a  different  

intention appears, the repeal shall not—

(a) revive anything not in force or existing at the time at  

which the repeal takes effect; or

(b) affect  the previous operation of any enactment so  

repealed or anything duly done or suffered thereunder; or

(c)  affect  any  right,  privilege,  obligation  or  liability  

acquired,  accrued or  incurred under any enactment so  

repealed; or

(d) affect any penalty, forfeiture or punishment incurred  

in  respect  of  any  offence  committed  against  any  

enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy  

in respect of any 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 Officers, under both the  

Acts, are more or less the same.  

We may notice Sections 19 and 22 of  1999 Act,  which are  

relevant. They read :-

“19. Saving of other laws. – The provisions of this Act shall be  

in addition to and not in derogation of any other law for the  

time being in force regulating any of the matters dealt with in  

this Act, except to the extent provided in this Act.”

“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  shall  be  

deemed  as  a  proceeding  under  the  corresponding  

provisions  of  this  Act  and  shall  be  continued  

accordingly.”

It  is,  therefore,  evident  that  only  those  laws  which  are  in  

derogation of the provisions of the 1999 Act would stand repealed.  

We may in this connection notice certain decisions relied upon  

by Mr. Krishnan.

A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC  

928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an  

old rule by a new rule. It, therefore, ceased to exist and did not  

automatically get revived when new rule was held to be invalid.  

We  are,  however,  dealing  with  a  Legislative  Act,  validity  

whereof was determined in the light of constitutional provisions.  

In  B.N. Tiwari  v.  Union of  India and others, [  [1965] 2 SCR  

421 ], this Court was again dealing with a statutory rule. It was held  

that the old rule did not revive opining :-

“When therefore this Court struck down the carry forward rule  

as modified in 1955 that did not mean that the carry forward  

rule of 1952 which had already ceased to exist, because the  

Government of India itself cancelled it and had substituted a  

modified rule in 1955 in its place, could revive.”

However, the legal position was made clear by a Three Judge  

bench  of  this  Court  in  West  U.P.  Sugar  Mills  v.  State  of  U.P.,  

[  (2002) 2 SCC 645 ]  whereupon 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 Act or Regulation by the express omission, insertion  

or  substitution  of  any  matter,  the  amending  enactment  is  

subsequently  repealed,  the  repeal  shall  not  affect  the  

continuance of any such amendment made by the enactment  

so repealed and in operation at the time of such repeal.

(2) Where any such amendment of text is made by any  

temporary Uttar Pradesh Act or by an Ordinance or by any law  

made in exercise of the power of the State Legislature by the  

President  or  other  authority  referred  to  in  sub-clause  (a)  of  

clause  (1)  of  Article  357  of  the  Constitution,  and  such  Act,  

Ordinance or  other  law ceases to operate  without  being re-

enacted (with or without modifications) the amendment of text  

made thereby shall also cease to operate.”

However, the Bench opined:-

“15. It would have been a different case where a subsequent  law which modified the earlier law was held to be void. In such  

a case, the earlier law shall be deemed to have never been  

modified or repealed and, therefore, continued to be in force.  

Where it  is  found that  the legislature  lacked competence to  

enact a law, still amends the existing law and subsequently it is  

found that the legislature or the authority was denuded of the  

power to amend the existing law, in such a case the old law  

would revive and continue. But it is not the case here.”

Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC  

376] is a case where the statute was modified and a different view  

was taken.  

But  the  principle  laid  down  therein  has  been  held  to  be  

inapplicable  in  Indian  Express  Newspapers  v.  Union  of  India,  

[ (1985) 1 SCC 641 ]  

“106. The rule in Mohd. Shaukat Hussain Khan v. State of  

A.P. is  inapplicable  to  these  cases.  In  that  case  the  

subsequent law which modified the earlier one and which was  

held to be void was one which according to the Court could not  

have been passed at all  by the State Legislature. In such a  

case  the  earlier  law could  be  deemed to  have  never  been  

modified or repealed and would, therefore, continue to be in  

force. It was strictly not a case of revival of an earlier law which  

had been repealed or modified on the striking down of a later  

law which purported to modify or repeal the earlier one. It was  

a case where the earlier law had not been either modified or  

repealed effectively.”

Repeal of a statute, it is well known, is not a matter of mere  

form but one of substance. It, however, 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  of  its  

power  of  Entry  No.  49,  List  II  of  the  Seventh  Schedule  of  the  

Constitution  of  India  in  relation  to  non-agricultural  land.  Such a  

power has been noticed hereinbefore.  It  exists  only in  terms of  

Entry  6,  List  III  of  the  Seventh  Schedule  of  the  Constitution  of  

India.  While  enacting  the  1999  Act,  the  State  could  not  have  

deprived  the  persons  who  hold  non-agricultural  land,  having

enacted the 1975 Act and, thus, could not have repealed a portion  

thereof by raising the following contention:

“…If in a given situation a tribal possess non-agricultural land  

that only indicates that though the person is a tribal by birth he  

has come a long way from the way of Scheduled Tribe and has  

acquired the trappings of non tribals and thereafter has come  

to  own immovable  property  other  than the  agricultural  land.  

The exploitation of the tribals has studied would indicate (sic)  

has always taken place by deprivation of the agricultural land  

of the tribals…”

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.

For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001  

and  899  of  2001  are  allowed  in  part  to  the  extent  mentioned  

above.  

In view of our judgment in Civil Appeal Nos. 104-105 of 2001 and 899  

of 2001, no orders are called for in Civil Appeal No.7079 of 2001. No  

costs