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PETITIONER: P.RAMI REDDY & ORS. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ANR. ETC.

DATE OF JUDGMENT14/07/1988

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) RAY, B.C. (J)

CITATION:  1988 AIR 1626            1988 SCR  Supl. (1) 443  1988 SCC  (3) 433        JT 1988 (3)    47  1988 SCALE  (2)8

ACT:      Andhra   Pradesh    Scheduled   Areas   Land   Transfer Regulation, 1959 (Regulation I of 1959) made by the Governor under para  5(2) of  Fifth Schedule  to the  Constitution of India-Sec.3(1)-As substituted  by Andhra  Pradesh  Scheduled Areas Land Transfer (Amendment) Regulation, 1970 (Regulation I of  1970)-Interpretation of-Sec.  3(1) in  so  far  as  it prohibits  transfer   of  immovable   property  situated  in scheduled areas  by a  ’non-tribal’ to another ’non-tribal’- Whether constitutionally  invalid being violative of Article 19(1)(f) as it obtained at the relevant time till its repeal by the  Constitution (Forty-fourth  Amendment) in  1979-Held Constitutionally valid.      Constitution of India-Fifth Schedule-Paragraph 5(2)(a)- Expression "Land"-Scope  of-Whether used  in  narrow  sense- Held-Expression land is comprehensive-Wide enough to include structures raised thereon.

HEADNOTE:      Section 3(1) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation  1959 (Regulation  I of 1959) prohibited transfer of  immovable properties  situated in the scheduled areas from  a  member  of  scheduled  tribe  to  non-tribals without previous  sanction of the State Government. In order to  facilitate   effective  enforcement  of  the  said  1959 regulations,  the   Andhra  Pradesh   Scheduled  Areas  Land Transfer  (Amendment)   Regulation,  1970   was  introduced. Regulation 1970  inter alia  brought the  following  changes namely (i) transfers of land in scheduled areas in favour of ’non-tribals’ were wholly prohibited in future and (ii) non- tribals holding lands in the scheduled areas were prohibited from transferring  their lands  in favour  of persons  other than  tribals.   The  appellants  who  owned  lands  in  the scheduled areas  having acquired them from tribals and ’non- tribals’ were  affected by this amending Regulation of 1970. They filed writ petitions in the High Court challenging this regulation being  unconstitutional. The High Court dismissed the writ petitions. Hence these appeals by Certificate under Article 133(1)(a)  of the  Constitution. The main contention of the  appellants was  that the  impugned  provisions  were unconstitutional as  being violative  of Article 19(1)(f) of

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the Constitution as it obtained at the 444 material time  till it  was  repealed  by  the  Constitution (Forty-fourth)  Amendment   in  1979  because  they  imposed unreasonable  restrictions  on  the  non-tribal  holders  of properties in  the scheduled  areas. Dismissing  the appeals and while  tracing a  short history of the legislation, this Court, ^      HELD: originally  all the  lands in  these tracts  were owned by the ’tribals’. With the advent of the ’non-tribals’ in the  late 19th  Century and early 20th Century, the lands changed hands  from ’tribals’  to ’non-tribals’. This change of ownership  was a  result of  exploitation raising: (1) In the context  of money  lending operations  and  (2)  in  the context of dubious and unconscionable dealings in the course of trade.  The ’non-tribals’  had so  often circumvented the legislation enacted  in order  to protect  the ’tribals’  by recourse to  benami transactions  and by recourse to dubious devices. The  poor ignorant, illiterate, and unsophisticated tribals had  succumbed to  the  wiles  of  the  economically stronger and unscrupulous ’non-tribals’. A legislation which in  essence   and  substance  aims  at  restoration  to  the ’tribals’ of  the lands  which originally  belonged  to  the ’tribals’ but  which passed  into the hands of ’non-tribals’ in   the    aforesaid   background   certainly   cannot   be characterised as unreasonable. [455G-H; 456A-C]      No  unreasonableness   is  involved   in   making   the prohibition against  transfer to ’non-tribals’ applicable to both the  ’tribal’ as  also to the ’non-tribal’ owner in the scheduled area.  As a  matter of  fact it  would  have  been unreasonable to  do otherwise. In the absence of protection, the economically  stronger ’non-tribals’  would in course of time devour  all the  available Lands  and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have. [457C-D]      The   submission    that   the    prohibition   against transferring  the   properties  to  ’non-tribals’  being  in absolute terms,  a non-tribal’  cannot even  raise a loan on his properties  even in  the event of the ’non-tribal’ being under economic  compulsion to  do so cannot be acceded to as it overlooks the amendment introduced by Sec. 3A(1) inserted by Regulation 1 of 1971. [458A-B]      Tribes of  India The  Struggle  for  Survival  (1982-83 edition) by Christoph von Furer-Haimendorf; The Continent of Circe, [1965] by Nirad C. Chaudhari; Manchegowda and Ors. v. State of  Karnataka,  [1984]  3  SCC  p.  301  and  Lingappa Rochanna Appelwar v. State of Maharashtra. [1985] 1 SCC 479, referred to. 445      The argument  that the  expression ’Iand’ has been used in its  restricted sense  in paragraph 5(2)(a) of Schedule V to the  Constitution of  India and  therefore  the  impugned provisions prohibiting  the transfer  of  lands  along  with structures thereon  by employing  the expression  ’immovable property’ is  not in  accordance with law is devoid of merit for two reasons: firstly, there is no reason to believe that ‘land’ has  not  been  employed  in  its  legal  sense.  The expression ’land’  in its  legal sense  is  a  comprehensive expression which  is wide  enough to  include structures, if any, raised thereon and secondly to interpret the expression ’land’ in  its narrow  sense is  to  render  the  benevolent provisions impotent  and  ineffective.  In  that  event  the prohibition can  be easily  circumvented by  just raising  a farm  house  or  a  structure  on  the  land.  The  impugned

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provisions  were   inserted  by   the  Amending   Regulation precisely to  plug such  loopholes and  make the  law really effective. [.158C-D; 459D-E]      The Dictionary of English Law, [19591 Edition Vol. 2 p. 1053 by  Earl Jowitt;  Words and Phrases Judicially Defined, By Roland  Burrows-Vol.IlI 1944  Edition p.  206 and The Law Lexicon, By  p. Ramanatha Aiyar-Reprint Edition 1987-p. 700, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 2299- 2300 of 1972.      From the  Judgment and order dated the 24.9.1971 of the Andhra Pradesh  High Court  in Writ Petition Nos. 806 & 3161 of 1970.      L.N. Sinha and S. Madhusudan Rao for the Appellants.      T.S. Krishnamurthi  Iyer, K. Ram Kumar and K. Ram Mohan for the Respondents.      Subodh  Markandaya  and  Mrs.  C.  Markandaya  for  the interveners.      The Judgment of the Court was delivered by      THAKKAR, J. A challenge to the validity of a provision’ in so  far as  it prohibits  the transfer  of any  immovable property situated  in the  scheduled areas of Andhra Pradesh by a  ’non-tribal’ in  favour of another ’non-tribal’ having been repelled by the High Court upon 1. Section  3(1) of the Andhra Pradesh Scheduled. Areas Land Transfer Regulation,  1959 as  inserted by  Regulation I  of 1970. (Reproduced at page 6-Footnote 3). 446 testing on  the touchstone of constitutionality, the present appeals have  been preferred  by some  of  the  unsuccessful original Writ  Petitioners. Some others have intervened upon their application for leave to intervene having been granted by this Court.      The appellants  and the  interveners have  by and large reiterated 13  the same  contentions before  this  Court  in support  of  their  plea  that  the  impugned  provision  is unconstitutional as  being violative of Art. 19(1)(f) of the Constitution of  India as  it obtained  at the material time till its repeal by the 44th Amendment in 19793.      A short  history of  the  legislation  may  be  briefly traced to  the extent  considered necessary.  In the  Andhra Area  there   existed  before   the  inauguration   of   the Constitution,  certain  laws  including  the  Agency  Tracts Interest and  Land  Transfer  Act,  1917  which  inter  alia prohibited transfer of land in the Agency Tract areas except in favour  of members  of hill  tribes conferring  upon  the persons belonging  to the Scheduled Tribes certain benefits. After the Constitution of India came into force, Art. 244 of the Constitution and the Fifth Schedule were made applicable to the  administration of the scheduled areas. Para 6 of the Fifth  Schedule   empowered  the  President  to  notify  the Scheduled areas  in consultation  with the  Governor of  the State. The  scheduled areas  in Andhra  region of this State were notified  by the  President through  the Scheduled Area (Part ’A’  States) order,  1950.  Para  5(2)  of  the  Fifth Schedule  empowered  the  Governor  of  the  State  to  make Regulations  for  the  peace  and  good  Government  of  the Schedule Areas.  Accordingly, the  Governor  made  the  A.P. Scheduled Areas  Land Transfer Regulation, 1959, (Regulation I of 1959). This Regulation came into force with effect from 4.3.1959.  Section   3(1)  of   this  Regulation  prohibited

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transfer of  immovable properties  situated in the scheduled areas from  a member  of scheduled  tribes  to  non  tribals without previous sanction of the State Government or subject to rules  made in  this behalf, with the previous consent in writing of  the Agent  or of any prescribed officer. Similar laws designed  to protect the tribals from exploitation were in operation  in the  Telengana area  of the  then State  of Hyderabad. In  exercise of powers under paragraph 5(2)(a) of Fifth Schedule  of the Constitution the Governor enacted the Andhra Pradesh Scheduled Area Laws (Extension and Amendment) Regulations, 1963  whereby  certain  rules  and  regulations which already  existed, and  were in operation in the Andhra area of the State were 2.  By   a  Certificate   under  Art.   133(  l)(a)  of  the Constitution of India. 3. With effect from June 20. 1979. 447 extended to  all parts of the State. The result was that the Andhra Pradesh  Scheduled Areas  Land  Transfer  Regulations came to  be extended  to the  Telengana area of the State as well.      Under the  1959 Regulation,  any transfer  of immovable property situated  in the  Agency Tracts,  by a  member of a Scheduled Tribe  was declared  null and void unless, made in favour of  any other  member  of  a  Scheduled  Tribe  or  a registered cooperative society composed solely of members of the Scheduled Tribes or with the.previous consent in writing of the  Agent. The  said Regulation  further  empowered  the Agent  to   decree  an   ejectment  against  any  person  in possession of  any immovable property, the transfer of which was made  in contravention  of its provisions and to restore it back to the transferor or his heirs. If the transferor or his heirs  were not  willing to  take the  property or where their whereabouts  are not  known?  the  Agent  was  further empowered to order assignment or sale of the property to any other  member   of  a   Scheduled  Tribe   or  a  registered cooperative  society  composed  solely  of  members  of  the Scheduled Tribes  or otherwise dispose of it, as if it was a property at the disposal of the State Government      However,  as   difficulties  were  experienced  by  the Government in  implementing the  ejectment procedures  under the said  Regulation, inasmuch as it was not always easy for the concerned authority to ascertain the origin of the right under  which  the  non-tribal  is  claiming  possession  and whether the  land now  under the  possession of a non tribal was previously  acquired from a tribal or not, the said 1959 Regulation was amended by the Andhra Pradesh Scheduled Areas Land Transfer  (Amendment) Regulation,  1970 with  a view to remedy the said mischief. The amending Regulation of 1970 in order to  facilitate effective  enforcement of the said 1959 Regulations introduced  interalia,  the  following  changes, namely:       (i) A rule of presumption was introduced to the effect           that unless  the contrary  is proved, where a non-           tribal is  in possession  of land in the Scheduled           areas, he  or his  predecessors-in-interest, shall           be deemed  to have  acquired it  through  transfer           from a tribal;      (ii) Transfers  of land in Scheduled Areas in favour of           non-tribals shall be wholly prohibited in future;       (iii) Non-tribals holding lands in the Scheduled Areas           shall be  prohibited from transferring their lands           in favour of persons 448           other than tribals. Only partitions and devolution

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         by succession  of lands  held  by  them  shall  be           permitted; and                (iv) Where  a tribal  or non-tribal is unable           to sell  his land to a tribal on reasonable terms,           it shall  be open  to him to surrender the land to           Government  who  shall  thereupon  be  obliged  to           acquire it on payment of appropriate compensation.      Clause (a)  of substituted  section 3(1)3  rendered all the transfers made except those in favour of a tribal, to be null and  void. Clause  (b) of  sub-section (1) of Section 3 raises  a   presumption  that   any  immovable  property  in possession with  a non-tribal would be presumed to have been acquired by such person through a tribal. Clause (c) of sub- section  (1)   of  Section   3  provides   for  payment   of compensation to  the non-tribal  at the  rate  specified  in Section  10   of  Andhra  Pradesh  Ceiling  on  Agricultural Holdings Act, 1961. The Andhra Pradesh Sec. 3   (1)(a)  Notwithstanding anything  in any  enactment                rule or law in force in the Agency tracts any                transfer of  immovable property  situated  in                the Agency tracts by a person, whether or not                such person is a member of a Scheduled Tribe,                shall be  absolutely null  and  void,  unless                such transfer  is made  in favour  of person,                who is  a member  of a  Scheduled Tribe  or a                society registered or deemed to be registered                under  the   Andhra  Pradesh   Co   operative                Societies Act,  1964 (Act 7 of 1964) which is                composed solely  of members  of the Scheduled                Tribes.            (b)  Until the  contrary is proved, any immovable                property situated in the Agency tracts and in                the possession  of a  person  who  is  not  a                member of  Scheduled Tribe. shall be presumed                to  have  been  acquired  by  person  or  his                predecessor in  possession through a transfer                made to him by a member of a Scheduled Tribe.            (c) Where a person intending to sell his land is                not able  to effect  such sale,  by reason of                the fact  that no member of a Scheduled Tribe                is willing to purchase the land or is willing                to purchase  the land on the terms offered by                such person,  then such  person may  apply to                the Agent,  the Agency  Divisional officer or                any  other   prescribed   officer   for   the                acquisition  of   such  land   by  the  State                Government, and  the Agent. Agency Divisional                officer or  the prescribed  officer,  as  the                case may  be by order, take over such land on                payment of  compensation in  accordance  with                the principles specified in Section 10 of the                Andhra  Pradesh   Ceiling   on   Agricultural                Holdings Act,  1961, (Act,  X of  1961),  and                such land  shall thereupon  vest in the State                Government free  from  all  encumbrances  and                shall be  disposed of in favour of members of                the Scheduled  Tribes or a society registered                or deemed  to be  registered under the Andhra                Pradesh Co-operative Societies Act, 1964 (Act                7 of  1964 composed  solely of members of the                Scheduled Tribes  or in such other manner and                subject  to   such  conditions   as  may   be                prescribed.] 449 Regulation No.  1 of 1970 inserts sub-section (4) in Section

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3 whereby  ’transfer’ has  been defined to include a sale in execution of  a decree  including a  benami transaction. The only species  of transfer  which has  been excluded from the operation of  the regulation  is petition  or devolution  by succession. Provision  has been  made for  the ejectment  of persons who  came into  possession of such lands as a result of such  transfers and  for the  restoration of  land to the original transferor  or his  heirs. By  Regulation 1 of 1971 Section  3-A  was  introduced  whereby  a  mortgage  without possession in  favour of  a Bank  or institution approved by the Government  was permitted subject to certain conditions. The Governor further framed a regulation to amend the Andhra Pradesh Scheduled  Areas  Land  Transfer  Regulation,  1959, being A.P.  Regulation No.  1 of  1978 which came into force with effect  from October 24, 1978. Regulation No. I of 1978 inserted  sections  3-B  and  6-A.  Section  6-B  prohibited registration of documents of transfer while sections 6-A and 6-B respectively  provided for  punishment for acquiring any immovable property  after a decree for ejectment was passed. The punishment  is to the extent of rigorous imprisonment of one year  or fine of Rs.2000 or both. Section 6-B makes such an offence cognizable.      The appellants own lands, and have immovable properties in the  Scheduled areas  of Andhra  Pradesh, and  have  been cultivating their  lands for  the past  many years.  Some of them have  acquired these lands in the remote past, and some in the  recent past  by purchase, some from the tribals, and some from  the non-tribals. By the amending Regulation which is now  impugned, all  acquisitions of immovable property by transfer from  tribals? and  non-tribals alike, are declared null and  void. The  appellants are all non-tribals, and are affected by this amending Regulation. Some of them belong to the Scheduled areas in the Telengana region, and some of the Scheduled areas  in the  Andhra region.  But,  they  have  a common grievance  that the  Regulation cuts  at the  root of their right  to the immovable properties, which have been in their possession for the past many years.      The principal  plea of the appellants before this Court is that in so far as the impugned provision seeks to control or restrict the right of transfer of immovable property by a ’non-tribal’ person  it is  void and that the High Court has erred in holding otherwise.      Be it  realized that  the question  whether or  not the impugned  regulation   brought  into   force  in   1970  has retrospective operation as contended by the State or whether it merely has a prospective operation as 450 held by  the High  Court does  not fall for consideration in the present  group of appeals. This question has been raised in another set of appeals which are awaiting decision before this Court.  We therefore do not deal with this dimension of the  issue   in  the   present  judgment  and  refrain  from expressing any opinion on this question.      It may  also be mentioned that the thoroughly untenable plea unsuccessfully  advanced before the High Court that the Government had  exceeded the power conferred by para 5(2) of Schedule V  of the  Constitution was  not exercised  for the peace and  good governance  of the  scheduled area,  has not been reiterated  before this  Court. This Court is therefore not required  to deal  with this  fact which has been fully, adequately, and  most satisfactorily  dealt with by the High Court which unhesitatingly turned down the plea.      The reasonableness  or otherwise  of  the  restrictions imposed by  the impugned provision cannot be tested in void. The socio-economic  landscape in  the backdrop  of which the

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compulsion to  legislate was  occasioned needs to be painted to enable  the Court  to approach in a meaningful manner the problem posed by the challenge rooted in the submission that these restrictions  are unreasonable from the perspective of Article 19(1) of the Constitution of India inasmuch as these are not essential for the protection of the interests of the Scheduled Tribes. To this end the following picture emerging from the  additional counter  filed by  the State drawn from sources which  have rightly  been considered as authentic by the High Court deserves to be highlighted:      1.    Within  the scheduled areas of both Telengana and           Andhra Pradesh  regions the  land was  entirely in           occupation of  different Tribal  communities.  The           area was  an inaccessible tract of land covered by           forests and  hills. These  tribal communities were           in occupation  of  lands  and  lived  by  shifting           cultivation and  gathering   whatever produce that           was available.      2.    The non-tribals who arrived in these areas landed           in the 19th Century in certain areas and the early           10th Century  in certain  other  areas  found  the           tribals who  were in  occupation of these lands an           easy prey  for the  schemes of  exploitation.  The           non-tribals  were  lending  money  to  the  tribal           communities and  taking the land belonging to them           as security  though nothing  was taken  in writing           from a  tribal.  The  rates  of  interest  charged           ranged between  25 to  50 per  cent and in certain           cases even  100 per  cent. The  tribals  who  were           tradi                            VINEET 451           tionally honest  and  who  were  simple  in  their           thought and  habits  fell  an  easy  prey  to  the           schemes of the non-tribals.      3.    None  of these  money lenders  ever credited  any           amount paid  by the tribals towards their debt and           whatever entries  were made  in the  books of  the           money lenders  were  implicitly  believed  by  the           tribals. The  tribals were  not  aware  that  when           produce was  sold to  the non-tribals,  they  were           using a  larger weight  and a  smaller weight  was           applied for  selling outside goods to the tribals.           The indebtedness  of the tribal had taken the form           of bonded  labour in  many cases.  The debt  could           never be discharged by the tribals.      4.   The money lenders continued to be in occupation of           most of  the lands  and the  tribals became  their           serfs. The non-tribals have also forcibly occupied           some of  the lands.  The tribals were ignorant and           they were  not aware that they could go and report           to   the    concerned   authorities    about   the           contravention of  the Regulations protecting their           rights. The  non-tribals  have  been  taking  full           advantage of  their ignorance  and exploited  them           and are continuing to exploit them.      5.    There  were several  rebellious movements  in the           Scheduled areas  against  the  oppression  by  the           money    lenders    and    rapacious    landlords.           Exploitation  of  Tribals  was  a  cause  of  many           disturbances  such   as  Ramparebellion   in  East           Godavari in  about 1899.  In comparatively  recent           times  also   in  Adilabad  district  the  tribals           rebelled in 1941 as a result of alienation of land           and forest  reservation rules and even in 1967-68,

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         most of  the tribals  fell an easy prey to some of           the political  leaders who promised that the lands           in Scheduled  areas would  be restored to them and           that the non-tribals would be driven out.      6.    It  is a known fact that these tribal communities           joined hands  with the  so called  revolutionaries           and again there was an uprising in the tribal area           against  the   non-tribals   which   had   started           spreading to the plains areas also.      7.   The tribal communities which went into the grip of           revolutionaries  were   not  able   to   extricate           themselves out of their grip. It is only after the           tribals were  promised by  the Government that the           land would be restored to them and the exploi- 452           tation by  non-tribals would  be checked and after           arresting the  several revolutionaries  peace  has           prevailed in several parts of the scheduled areas.           If the  Scheduled Tribes  were  not  put  back  in           possession of the land and measures were not taken           to prevent exploitation by non-tribals peace would           not have prevailed in the Scheduled Areas.      8.   It was  observed by  several committees  that  the           non-tribals were  able to  find ways  and means to           circumvent the  provisions of Regulation I of 1959           by entering  into benami  trans actions  and other           clandestine  transactions   with   unsophisticated           tribals. It  is  absolutely  necessary  to  create           conditions  for   peace  and  maintain  peace  and           prevent the  new non-tribals from settling down in           the  Scheduled   area.  If   the  alienations  are           permitted to  the non-tribals there is a danger of           large scale  exploitation by  the  new  non-tribal           again with  the result  peace will be disturbed in           that area.      9.    It  is only  with a view to maintain peace and to           govern the  area effectively  Regulation I of 1970           was passed  by  the  Governor.  A  non-tribal  who           validly acquired  the title will not be disturbed,           but he  is not  allowed to sell his land to a non-           tribal which  will inevitably  mean  new  entrants           into this area.      10.   In a  sample survey  conducted in Chintapalli and           Bhadra chalam  it was  found that the average size           of holding  per family  is only  3 to 4 acres. But           even this  extent of  land was either mortgaged or           otherwise transferred in favour of non tribals and           they are in possession of the lands.      11.  Unless new  entrants into  the Scheduled areas are           prevented from  settling  down  in  the  Scheduled           areas by purchasing properties either from tribals           or non-tribals,  it is not possible to prevent the           exploitation of the unsophisticated tribals. It is           only with  a view  to enforce the valid provisions           of Regulation  I of  1959,  the  Regulation  viz.,           Regulation I  of 1970  was  made.  It  is  in  the           interests of  the tribals and for their protection           Regulation I  of 1970  was passed, because without           restricting or prohibiting the alienation of lands           in the  pos session  of non-tribals to non-tribals           the objectives cannot be achieved. 453      What has  emerged from  the additional counter filed by the State in the High Court is buttressed by the contents of a treatise  authored by  a well-known  research scholar. The

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treatise is  the culmination  of laborious  research carried out in  respect of  the very  areas which form a part of the scheduled area  of Andhra  Pradesh in  respect of  which the impugned legislation  has been  enacted. It  has been stated therein that  more than  40 million Indians belong to tribal communities distinct  from the  great mass  of the  society. They are  the aboriginal races from the Dravidian architects of ancient  South Indian  civilizations. The dramatic change in the  peaceful co-existence between the tribals on the one hand and  the more  dynamic section  of the society occurred when   improved    communications   opened   up   previously inaccessible tribal  areas and  rapid growth  of the  Indian population led  to pressure  on the land’s resources. In the past forty  years most  of the  tribal societies  have  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. These population  movements triggered a struggle for land in which aboriginal  tribesmen were  usually  the  losers  and, deprived of their ancestral land, turned into impoverished, Ianndless labourers.      In this  treatise the  learned author  has  quoted  the distressing forecast  made by Nirad C. Chaudhari in his book 3 wherein he has lamented:           "In an  industralized India the destruction of the           aboriginal’s  life   is  as   inevitable  as   the           submergence of  the Egyptian temples caused by the           dams of  the Nile .. As things are going there can           be no grandeur in the primitive’s end. It will not           be even  simple extinction, which is not the worst           of human  destinies. It  is to  be feard  that the           aboriginal’s last  act will be squalid, instead of           being tragic.  What will  be seen with most regret           will be  not his disappearance but his enslavement           and degradation.      It cannot  therefore be  gain-said that the tribals not only require  to be  preserved and  protected in  respect of their  economic  and  educational  interest  but  they  also require  to   be  immunized   from  social   injustice   and exploitation. The Founding Fathers of the Constitution of 1.   Tribes of  India The  Struggle  for  Survival  (1982-83      edition) by Christoph von FurerHaimendorf. 2. Inside of      front flap. 2.   Inside of front flap. 3.   The Continent of Circe. 1965. 454 India have in their wisdom and foresight taken cognizance of this vital aspect as is evidenced by the provisions embodied in Article  15(4)1 and  Article 462  of the  Constitution of India.      The constitutional  mandate reflected  in the aforesaid Articles has  influenced this  Court in  no small measure in upholding the  constitutionality of the impugned legislative provisions enacted  with an eye on preserving and protecting the interest  of the  tribals in  the lands  in  the  tribal areas. Reference  in this  behalf may be made to Manchegowda and Ors.  v. State  of Karnataka   wherein  the focus was on provisions prohibiting  transfers to  ’non-tribals’ of lands granted to  the tribals  and on remedial measures for speedy restoration of such lands to the members of Scheduled Castes and Scheduled  Tribes in  cases where  the lands  had passed into the  hands of  the ’non-tribals’. Reference may also be made to  Lingappa Pochanna  Appelwar v. State of Maharashtra whereby this  Court has  upheld the constitutionality of the provisions  enacted   essentially   in   order   to   secure

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restoration to  the original  tribal owners  the lands which had gone out of their hands and passed into the hands of the ’non-tribals’.      The  problem   presented  in  the  present  appeals  is somewhat different  from the problems which have surfaced so far. It  brings into  focus the challenge to the validity of the provisions  enacted with a view to prevent ’non-tribals’ along  with  ’tribals’  from  transferring  lands  including structures raised  thereon in favour of ’non-tribals’ in the Scheduled areas.  It is  in this context that appellants who are  ’non-tribals’   have  mounted   an   assault   on   the constitutionality of  the impugned provisions by recourse to the plea that these are violative of Article 19(1)(f) of the Constitution of  India. It  is  alleged  that  the  impugned provisions impose  unreasonable restrictions  on  the  ’non- tribal’ holders of properties in the Scheduled areas. 1.   Art. 15(4)"Nothing  in this article or in clause (2) of      article 29  shall prevent  the State  from  making  any      special provision  for the  advancement of any socially      and educationally  backward classes  of citizens or for      the Scheduled Castes and the Scheduled Tribes." 2.   Article  46  "Promotion  of  educational  and  economic      interests of  Scheduled Castes,  Scheduled  Tribes  and      other weaker  Sections-The  State  shall  promote  with      special care  the educational and economic interests of      the weaker  sections of  the people, and in particular,      of the  Scheduled Castes  and the Scheduled Tribes, and      shall protect  them from social injustice and all forms      of exploitation." 3.   1984(3) SCC P. 301 4.   1985(l)SCC 479. 455      The challenge rooted in Article 19(1)(f) cannot survive after the  repeal of  the said Article with effect from June 20, 1979  by virtue of the 44th Amendment. It cannot survive inasmuch as  the doctrine  of eclipse  would come into play. All the  same, it  needs to  be examined as it is understood that numerous  transactions  have  taken  place  during  the interregnum. More  so as  the matter  is of vital importance from the  platform of  the welfare  of the  ’tribals’  whose welfare had  exercised the  minds of the Founding Fathers in shaping the  Constitution as  evidenced by Article 15(4) and Article 46  thereof.  The  question  of  questions  then  is whether the impugned provisions prohibiting not only tribals hut also  ’non-tribals’ from  transferring their  lands  and properties in the Scheduled areas to ’non-tribals’ are ultra vires Article  19(1)(f). The  impugned provisions  have been assailed on  the ground  of their alleged ’unreasonableness. In order  to succeed  in their challenge the appellants will have to  identify the obnoxious components or factors of the impugned provisions.      Two submissions  have been urged in order to answer the question as to ’why’ ’how’ and in ’what manner’ the impugned provisions are branded as unreasonable:      1.       The  prohibition  imposed  on  the-  ’tribals’           restraining  them   from  transferring  lands  and           properties  to   ’non-tribals’  is  understandable           inasmuch as  the objective  is to  ensure that the           total extent  of properties held by the tribals is           not diminished.  However,  there  is  no  rational           basis for  restraining transfer of properties from           ’non-tribals’ to  ’non-tribals’ as  such  transfer           does no  more than  substitute one ’non-tribal’ by           another ’non-tribal’  and does  not in  any manner           diminish the  extent of  properties  held  by  the

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         ’tribal’.      2.       The   prohibition  against   transferring  the           properties to  ’non  tribals’  being  in  absolute           terms, a  ’non-tribal’ cannot even raise a loan on           his properties  even in  the event  of  the  ’non-           tribal’ being under economic compulsion to do so. It is  not possible  to  accede  to  any  of  the  aforesaid submissions. As  highlighted  earlier,  originally  all  the lands in  these tracks were owned by the ’tribals’. With the advent of  the ’non-tribals’  in the  late 19th  Century and early 20th  Century, the  lands changed hands from ’tribals’ to ’non-tribals’.  This change  of ownership was a result of exploitation arising:  (1) in  the context  of money lending operations  and   (2)  in   the  context   of  dubious   and unconscionable dealings in the 456 course of trade. The ’non-tribals’ had so often circumvented the legislation enacted in order to protect the ’tribals’ by recourse to  benami transactions, and by recourse to dubious devices. The  poor ignorant, illiterate, and unsophisticated tribals had  succumbed to  the  wiles  of  the  economically stronger and unscrupulous ’non-tribals’. A legislation which in  essence   and  substance  aims  at  restoration  to  the ’tribals’ of  the lands  which originally  belonged  to  the ’tribals’ but  which passed  into the hands of ’non-tribals’ in   the    aforesaid   background   certainly   cannot   be characterised as  unreasonable). The  scanning must  be done through the  objective lens  of the  Court representing  the collective conscience  of the  community and not through the tinged lens  of appellants  whose economic  interests may be prejudicially affected  by the impugned provisions. In other words, the  Court examining  the matter from the perspective of the  Constitutional mandate  armed with  the criterion of objectivity and  overall interest  of the community at large must be satisfied that the restrictions are unreasonable.      As a matter of fact it would be unreasonable and unfair to hold  that the  impugned provisions  are unreasonable  on this account.  Surely it is not unreasonable to restore upto the ’tribals’  what originally belonged to them out of which they were  deprived as  a result of exploitative invasion on the part of ’non-tribals’. In the first place should lessons not be drawn from past experience to plug the loop-holes and prevent future  recourse to  devices to  flout the  law? 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-tribal  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 alienting the land,  he may  do so  only in a 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

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by permitting, them to transfer the lands and structures, if any, raised on 457 such lands, to ’non-tribals’ and make profits at the cost of the tribals. It would not only be tantamount to perpetuating the exploitation  and  injustice,  it  would  tantamount  to placing  premium   on   the   exploitation   and   injustice perpetrated by  the non-tribals. Thus it would be the height of unreasonableness  to impose  the disability  only on  the tribals whilst  leaving out  the ’non-tribals. It would also be counter  productive to  do so. It must also be emphasized that to  freeze the pool of lands available to the ’tribals’ at the  present level  is virtually  to diminish  the  pool. There is  no escape  from this outcome because the realities of life  being what  they are  with the  population increase amongst the  tribals remaining  unfrozen, increase  in their population will  automatically diminish  the size  of  their pool if the same is frozen. No unreasonableness therefore is involved in making the prohibition against transfer to ’non- tribals’ applicable to both the ’tribal’ as also to the non- tribal’ owners in the scheduled area. As a matter of fact it would have been unreasonable to do otherwise. In the absence of protection, the economically stronger ’non-tribals’ would in course  of time  devour all  the available lands and wipe out the  very identity  of the tribals who cannot survive in the absence  of the only source of livelihood they presently have. It is precisely for this reason that the Architects of the Constitution  have with  farsight and foresight provided in paragraph  5(2) of  Fifth Schedule  that the Governor may make regulations  inter alia "prohibiting or restricting the transfer of  land in the scheduled areas notwithstanding any provision embodied  in the  Constitution elsewhere".  And as has  emerged   from  the   foregoing   discussion,   it   is unreasonable to restrict the prohibition against transfer to ’tribals’. It has to be made comprehensive enough to embrace the ’non-tribals’  as well.  With  the  improvement  in  the economic conditions  of the  ’tribals’, there  would not  be much difficulty  in finding  ’tribal’  purchasers.  Besides, Section  3(1)(c)   thoughtfully  provides   even   for   the contingency of  not being able to find a ’tribal’ willing or prepared to  purchase the  property. This  provision obliges the State  Government to  acquire the property on payment of compensation as provided therein. One can envisage that some hardship would  be occasioned to the owners to lands located in the  scheduled areas.  But such  hardship  would  operate equally on  the ’tribals’ as well as the ’non-tribals’. Such hardship  notwithstanding   keeping  in   mind  the   larger perspective of the interest of the community in its entirety in the  light of  the foregoing discussion, the restrictions cannot be  condemned as  unreasonable. More so if the factor that  the   original  acquisition   by  ‘non-tribals’   from ’tribals’ was polluted by the sins of exploitation committed by the non-tribals’ is not ignored. 458      The next  submission is  built on  the premise that the impugned A provision does not permit the owner even to raise a loan  on the  security of  the  land  owned  by  him.  The submission overlooks  the amendment  introduced  by  Section 3A(1)1  inserted   by  Regulation  1  of  1971.  True,  this provision was  introduced after  a few  months. But  then in none of  these appeals a grievance is voiced that any of the writ petitioners  in fact  wanted to raise a loan, but could not do  so, during this time-bracket of a few months. In any case  the   challenge  can   no  longer  survive,  with  the introduction of Section 3A.

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    Another argument  which did  not succeed  in  the  High Court has  been hopefully  persisted with  in the Court. The expression "Land"  has been  used in its restricted sense in paragraph 5(2)(a)  of Schedule  V and therefore the impugned provisions prohibiting  the transfer  of  lands  along  with structures thereon  by employing  the expression  "immovable property" is  not  in  accordance  with  law.  Such  is  the argument. This  argument is devoid of merit for two reasons: Firstly, there  is no  reason to believe that ’land’ has not been employed  in its  legal sense. The expression ’land’ in its legal  sense is a comprehensive expression which is wide enough to  include structures, if any, raised thereon. While this proposition  hardly needs to be buttressed, support can be sought from the following sources:           "The Dictionary of English Law.’           LAND, in  its restrained sense, means soil, but in           its  legal  acceptation  it  is  a  generic  term,           comprehending every  species of  ground,  soil  or           earth, whatsoever,  as meadows,  pastures,  woods,           moors,  waters,  marshes,  furze,  and  heath;  it           includes also  houses, mills,  castles, and  other           buildings; for  with the  conveyance of  the land,           the structures  upon it  pass also. And besides an           indefinite ex  tent upwards,  it extends downwards           to the globe’s centre, 1.   3A(1):  Special   provision  in  respect  of  mortgages      without possession:  Notwithstanding anything contained      in this  Regulation or  in any  enactment, rule  or law      inforce in the Agency tracts,      (1) any  person whether or not such person is member of      a Schedule  Tribe, may,  subject to  the provisions  of      Clause (2)  mortgage without  possession, any immovable      property situated  in the  Agency tracts,  to  any  co-      operative Society including a land mortgage bank, or to      any bank or other financial institution approved by the      State Government. 2. 1959 Edition-Vol. 2. p. 1053 by Earl Jowitt. 459           hence the maxim, Cujus est solum ejus est usque ad           caelum et  ad inferos;  or, more curtly expressed,           Cujus est solum A ejus est altum (Co . Litt. 4a)"           "Words And Phrases Judicially Defined:1           The word  ’land’ would  be variously understood by           different persons.  To a  farmer the  word  ’land’           would not mean his farm buildings; to a lawyer the           word would  include every  thing that was upon the           land fixed  immovably upon  it. Smith v. Richmond,           [1899] A.C.  448, per  Lord Halsbury,  L.C., at p.           448." "The Law Lexicon:2 The word  "land" is a comprehensive term, including standing trees, buildings, fences, stones, and waters, as well as the earth we  stand on.  Standing trees must be regarded as part and parcel  of the  land in  which they  are rooted and from which they draw their support." D      Secondly, to  interpret the  expression ’land’  in  its narrow sense is to render the benevolent provisions impotent and ineffective. In that event the prohibition can be easily circumvented by  just raising a farm house or a structure on the land.  The impugned  provisions  were  inserted  by  the Amending Regulation  precisely to  plug such  loopholes  and make the  law really effective. The High Court was perfectly justified in  repelling this meritless plea. It is therefore not possible to accede to this submission.      Equally  meritless   in   the   submission   that   the

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presumption embodied in section 3(1)(b) is unreasonable. The High Court  has unhesitatingly negatived this plea. The High Court has reasoned:           "With  regard   to  the   presumption,  which   is           impugned, it  is a  rebuttable presumption  and  a           rule  of   evidence.  The   non-tribals  who  have           acquired the  lands, and properties of the tribals           could be  reasonably expected  to  disclose  their           title to  the properties.  This also  accords with           the rule  of  evidence,  that  when  any  fact  is           specially within  the knowledge  of any person the           burden of proving that fact is upon him 1.   By Roland Burrows-Vol. III 1y944 Edition p. 206. 2 .  By P. Ramanatha Aiyar-Reprint Edition 1487-p. 700. 460           vide-Section 106  of the  Indian Evidence Act. The           tribals are mostly ignorant persons, and naturally           suffer from in evitable handicaps in the matter of           setting up  or proving  their rights to lands, and           property which they had lost." The reasoning  is impeccable  and faultless.  The plea  must accordingly fail.      The appeals  must therefore  fail and  be dismissed. No costs. H.S.K.                             Appeals dismissed. 461