REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 104-105 of 2001

State of Kerala and another …. Appellants

Versus

Peoples Union for Civil Liberties, Kerala State Unit and others …. Respondents

WITH

CIVIL APPEAL NO. 899 OF 2001

Malayora Karshaka Federation …. Appellant

Versus

Niyamavedi and others …. Respondents

AND

CIVIL APPEAL NO. 7079 OF 2001

M. Mohan Kumar …. Appellant

Versus

P. Nalla Thampy Thera and another …. Respondents

J U D G M E N T  

S.B. SINHA, J.  

ISSUE

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  

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  

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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

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

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  

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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.   

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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  

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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)”   

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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”

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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  

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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  

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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.  

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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  

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.    

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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

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  

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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 :-

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“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

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.  

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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  

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.   

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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.

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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.  

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(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  

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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:

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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.

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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  

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.   

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‘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  

22

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  

23

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.   

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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  

25

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,  

26

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:

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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  

28

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.”   

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CONSTITUTIONAL VALIDITY OF 1999 ACT

LEGISLATIVE BACKDROP

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  

30

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  

31

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

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  

32

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.  

33

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.”

34

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  

35

“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.  

36

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  

37

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  

38

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.

39

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.  

40

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.  

41

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

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  

42

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  

43

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

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  

44

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.   

45

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  

46

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  

47

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  

48

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.”

49

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  

50

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  

51

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  

52

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.”

53

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.   

54

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.   

55

VESTED RIGHT VIS-À-VIS ARTICLE 14

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.”

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[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  

57

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  

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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  

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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  

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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  

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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  

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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-

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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)  

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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  

65

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  

66

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  

67

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  

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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

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  

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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  

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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.   

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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

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

Act 12/99 came into force  on 20.04.1999 Page Nos.161  – 169, but deemed to have  

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come into force on  24.01.1986

2(b) “Immovable  property”  defined  as including standing crops and  trees.  Act  applies  to  such  property

2(4) Section

“Land”  defined  means  agricultural  land  –  Act  applies to such land.

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.

4. Transfer  of  any  land  (i.e.  Agricultural  land)  by  tribal  to  non-tribal  after  commencement  of  Act  without  previous consent  of  competent authority shall be  void.

5. Transfer of immovable property  by  Tribal  to  non  tribal  after  01.01.1960  shall  be  deemed  to  be invalid

5. (1) Transfer of land by tribal  to  non  tribal  after  01.01.1960  and  before  Act  shall  be  deemed  to  be  invalid.

Proviso  :  But  this  will  not  invalidate  transfers  where  the extent of land transferred  does not exceed two hectares

(2)  Notwithstanding  (1)  above,  where  the  land  transferred  is  used  for  agriculture  purpose  the  transferor  may  retain  the  transferred land or 2 Hectres  to  be  demarcated  by  the  RDO.

6(1) The  Tribal  whose  transfer  is  invalidated under Sections 4 and  5 shall be entitled to restoration  of possession of the property.

6 Styled as allotment of land.

1)  Tribal  who  has  effected  transfer  of  land  between  

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Sub  Section  (5)  provide  for  a  remedy  of  appeal  to  the  aggrieved  persons  to  the  competent authority.

01.01.1960 and 2.4.1986 and

a) who  has  filed  an  application  for  restoration  u/s. 6 of Act 31 of 1975

b) but whose possession has  not been restored.

c) and  which  transfer  has  been  validated  by  the  provisions  of  Sec.5  above  shall be entitled to allotment  of  equal  extent  of  land  by  Government to the extent of  40 Ares.

7. Govt. may take Suo-moto action  for restoration

Proviso : Where the extent of land to  be so allotted is less than 40  Ares  (One  Acre)  Government  will  make  further allotment to make the  total extent 40 Ares.

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.

7. Where  a  transfer  of  land is  invalidated  U/s.4  and  5  of  the  Tribal  is  entitled  to  restoration of such land.

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  

Sub-section 2 to 4 prescribe  the procedure for restoration  with a right of appeal under  sub  section  6  (Akin  to  section 6 of Act 31 of 75)

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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.

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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  

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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  

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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  

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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

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  

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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).  

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     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  

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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.”

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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

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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  

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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:

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“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:

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“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  

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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  

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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  

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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  

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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  

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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

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.   

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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      

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.   

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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 -  

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(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.-

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(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.   

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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  

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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:-

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“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  

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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

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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  

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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     

        .……………………………..J.  [ S.B. Sinha ]

 …………………………….J.             [ Dr. Mukundakam Sharma ]

New Delhi; July 21, 2009

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