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PETITIONER: THE DY. COLLECTOR & ANR.

       Vs.

RESPONDENT: S. VENKATA RAMANAIAH & ANR.

DATE OF JUDGMENT18/09/1995

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) BHARUCHA S.P. (J) FAIZAN UDDIN (J)

CITATION:  1996 AIR  224            1995 SCC  (6) 545  JT 1995 (7)     1        1995 SCALE  (5)521

ACT:

HEADNOTE:

JUDGMENT:                           W I T H [C.A. No.6/91;  C.A.  No.  8422  of  1995  (Arising  out  of S.L.P.(C) No.10746  of 1981); C.A. No. 8423 of 1995 (Arising out of S.L.P.(C) No.1041 of 1986); and C.A. No. 8424 of 1995 (Arising out of S.L.P.(C) No. 2407 of 1986)]                       J U D G M E N T S.B. Majmudar, J.      Leave granted in S.L.P. (C) Nos. 10746 of 1981, 1041 of 1986 and 2407 of 1986.      In this  group of  matters a common question arises for our consideration. It is as under :      "Whether the  provisions of  the  Andhra      Pradesh (Scheduled  Areas) Land Transfer      Regulation of 1959 (hereinafter referred      to as  ‘Regulation’) and  the subsequent      Regulation No.II  of 1963 and Regulation      No.I of  1970 have  retrospective effect      and can  affect transfers  made prior to      the  coming   into  force  of  the  said      Regulations."      We  have   heard  learned  counsel  appearing  for  the respective contesting  parties in  this  group  of  matters. Accordingly all  these appeals are being disposed of by this common judgment.      A few  facts leading  to these  appeals may be noted at the outset. Facts leading to Civil Appeal no. 2909 of 1977      The appellant  authorities,  namely,  Deputy  Collector (Tribal Welfare)  and the  District Collector functioning in Srikakulam District  in the  State of  Andhra Pradesh,  have brought in  challenge a  decision of the Andhra Pradesh High Court allowing  Writ Petition  No. 4434 of 1975 moved by the respondents, praying  for a  writ of  mandamus under Article 226 of  the Constitution  of India  for quashing and setting

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aside the  orders of  the appellant authorities passed under the provisions  of the  Regulation.  The  respondents,  writ petitioners before  the High Court had purchased the land in their occupation  on 19th  June 1919 from a non-tribal named Pappala Appanna. After the promulgation of the Regulation in 1959 as  amended by  Regulation  I  of  1970  the  competent authority  being   agent   of   the   Government   initiated proceedings against  the respondents  on the ground that the said sale  in their  favour was  hit by Section 3 (1) (a) of the Regulation  and, therefore,  the respondents were liable to be  evicted from  the land  in question  which had  to be restored  to   the  original  vendor  or  his  successor  in interest. After hearing the respondents the Deputy Collector (Tribal Welfare)  passed an  order of  eviction against  the respondents. The  respondents’ appeal  before  the  District Collector failed. And that is how the respondents filed writ petition before  the High  Court. A  Division Bench  of  the Andhra Pradesh  High Court  by  the  judgment  under  appeal allowed the  writ petition  by  taking  the  view  that  the provisions of  the  Regulation  were  not  retrospective  in nature and  could not  affect  past  transactions  like  the transaction in  question which  was reflected  by Registered Sale Deed  dated 19th  June 1919  even though  the land  was situated  in  Srikakulam  District  which  fell  within  the definition of  ‘Agency Tracts’ as laid down by Section 2 (a) of 1959  Regulation. It  was, therefore,  held that the said transaction could  not be  processed or  scrutinised by  the authorities functioning under the Regulation and they had no jurisdiction to  treat the  said transaction  to be null and void under  the Regulation.  Writ Petition  was  accordingly allowed. The  authorities as  appellants before  this  Court have filed  this appeal  having obtained  special  leave  to appeal from  this Court against the impugned judgment of the Division Bench of the High Court. Facts leading to Civil Appeal No.6 of 1991      In this  appeal the  authorities functioning  under the very same  Regulation have  brought in  challenge the  order passed by  the Division  Bench of  the Andhra  Pradesh  High Court in  Writ Appeal  No. 121  of 1985  which  came  to  be dismissed by  the Appellate  Court and  whereby the order of the learned  Single Judge  in Writ Petition No. 1882 of 1978 came to  be confirmed.  The first  respondent herein  was  a protected tenant  of Survey  No.97 admeasuring 9 acres and 4 guntas and  Survey No.  98 admeasuring  8 acres and 8 guntas situated  at  Chirrankunta  Village  of  Asifabad  Taluk  of Adilabad  District   of  Andhra  Pradesh.  One  Siddamshetti Narayana was  the Pattedar of the said land. Respondent No.1 was cultivating the said land as his tenant. The Pattedar of this land  was a  tribal. He  had transferred  this land for cultivation as  a tenant to respondent No.1 and it was noted in  Khasra   Pahani  of   year  1954-55   through  mutation. Respondent no.1  is a  non-tribal. On  the basis of the said protected tenancy  created in  favour of  respondent no.1 by the tribal,  respondent no.1  was declared owner of the said land on  1.1.1975 under Section 38 (E) of the Andhra Pradesh (Telengana Area)  Tenancy &  Agricultural Act,  1950  and  a certificate was issued under Section 38 (E) in his favour.      The  Special   Deputy   Collector   (Tribal   Welfare), Adilabad, issued  a notice  to the  first respondent stating that the  first respondent  was in  possession of  the  said land.  The   transfer  of   the  said  land  in  his  favour contravened  the   provisions  of   Section  3(1)   of   the Regulation. He was, therefore, asked to show cause as to why he should  not be  ejected from  the said  land.  Ultimately order of  ejectment was  passed against  him by  the Special

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Deputy Collector  and the  lands were ordered to be restored to respondent  nos.2 to  4. Respondent  no.1  unsuccessfully went in appeal where stay was refused. He thereafter filed a writ petition  in the  Andhra Pradesh  High Court. A learned Single Judge  of the High Court allowed the writ petition on 8.2.1984 holding  that the  provisions of  the Regulation as extended to  Adilabad District  in  ex-Telengana  region  by Regulation II  of 1963  could not  affect  the  transfer  in favour of respondent no.1 which was made years back and when that transfer  was valid and was supported by certificate of ownership granted to respondent no.1 under Section 38 (E) of the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act, 1950. The present appellant authority carried the matter in appeal before the Division Bench of the High Court as noted  earlier. That  Writ Appeal came to be dismissed by the Division Bench by its order dated 11th February 1985. It is this  order of  the Division  Bench which  is brought  in challenge in  the present  appeal  after  obtaining  special leave to appeal from this Court. Facts leading  to Civil  Appeal No.  8422/95 arising  out of S.L.P.(C) No. 10746 of 1981      This appeal  is taken  out by the Collector and Special Deputy Collector  of Adilabad  District in  Andhra  Pradesh. They have brought in challenge by special leave the judgment of the  Full Bench of the Andhra Pradesh High Court rendered in Writ  Petition No. 4204 of 1977 and group decided on 21st August  1981.  Respondent  No.3  herein  had  purchased  the disputed lands  being Survey No. 33 measuring 0 acres and 17 cents and  Survey No.34  measuring 13  acres  and  02  cents situated at  Nandagaon Village in Adilabad Taluk of Adilabad District of  Andhra Pradesh.  Said area was declared to be a scheduled area as per the provisions of Regulation I of 1959 as amended  by Regulation II of 1963, being the ex-Telengana area. These lands were purchased by respondent no.3 under an Agreement to  Sell dated  10th May  1955 from  one Jaithu, a member of the scheduled tribe. Respondent nos.1 and 2 herein are said  to be  cultivating the said land as tenants of the third respondent.  The land, Survey No.8 was purchased under an Agreement  of Sale dated 8th March 1963 by the brother of the first  respondent from  the 4th  respondent,  who  is  a daughter of  the tribal  Jaithu. Respondent  nos.3 and 4 are sons and  daughters of  Jaithu. They  filed a petition under Section 3(2)  of the Regulation I of 1959 before the Special Deputy Collector  alleging that  the transfer  of the  lands under the  Agreements of  Sale contravened the provisions of Section 3(1)  of the  Regulation and that they were entitled to be  put back in the possession of the said lands. Special Deputy  Collector  accepted  their  request  and  held  that respondent nos.1  to 3  were in  illegal possession  of  the lands and  they were liable to restore the possession to the heirs of  the original tribal, that is, respondent nos.4 and 5.  This   order  was   confirmed  in  appeal  preferred  by respondent nos.  1 to  3 to the District Collector, an agent to the  State Government.  It was thereafter that respondent nos.1 to  3 filed  writ petition  No. 4204 of 1977 seeking a writ of  mandamus for  quashing the  orders of  the  Special Deputy  Collector   (Tribal  Welfare)   and  the   Appellate Collector. This  writ petition  and other  companion matters were ultimately  placed  for  disposal  on  reference  by  a Division Bench  of the  High Court  before a Full Bench. The Full Bench  of the  High Court  speaking through Ramachandra Rao, J., took the view that the provisions of the Regulation were not  retrospective in  nature and  could not invalidate completed past  transactions entered  into in  the scheduled area prior  to the coming into force of Regulation I of 1959

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as amended  by  Regulation  II  of  1963  which  applied  to Adilabad area  from 1.12.1963. Writ Petition was accordingly allowed and  the impugned  orders  were  quashed.  As  noted earlier the  said decision  of the  Full Bench is brought on the anvil  of scrutiny  by the appellant authorities in this appeal. Facts leading  to Civil  Appeal No.8423/95  arising  out  of S.L.P.(C) No. 1041 of 1986      This appeal is moved by Special Deputy Collector Tribal Welfare,  and   the  District   Collector,  Adilabad,  being aggrieved by  the judgment  and order  of the Andhra Pradesh High Court.  In Writ  Appeal No.52  of 1980  decided on 14th October 1985  by the impugned judgment the Division Bench of the High  Court confirmed the order passed by learned Single Judge of  the High  Court in  Writ Petition  No.4882 of 1977 decided on  13th June 1979. The learned Single Judge allowed the writ  petition moved  by respondent herein and set aside the  orders  passed  by  the  authorities  below  under  the Regulation. Respondent had purchased in 1942 10 acres and 34 guntas of Survey No.92 of Sungapur Village in Asifabad Taluk of Adilabad  District from the father of one Madavi Nanu who was original  respondent no.1  in the  writ petition but who was not  subsequently joined  in the  further proceedings in writ appeal  as respondent.  Madavi’s father  was a  tribal. Pursuant to  the said  sale in favour of respondent his name was recorded  as occupant  in the  land records  and in  the Khasra Pahani  of the  year 1954-55  and in  the  subsequent Pahani  Partraks.   The  Special  Deputy  Collector  (Tribal Welfare) Adilabad  issued a  notice to respondent no.3 under Section 3(1)  of the Regulation which came into force in the Telengana area  on 1.12.1963.  Respondent was called upon to show cause  why he  should not be evicted from the said land on the  ground that  possession of  the  respondent  was  in contravention  of   provisions  of   Section  3(1)   of  the Regulation.  Ultimately   the  said  proceedings  terminated against the  respondent. He  was ordered  to be evicted from the land in question and the land was ordered to be restored to aforesaid Madavi. He unsuccessfully carried the matter in appeal and thereafter filed Writ Petition No.4882 of 1977 in Andhra Pradesh High Court. Said writ petition was allowed by the learned  Single Judge  on 13th  June 1979.  The  learned Judge took  the view  that the  provisions of the Regulation did not  affect the  past transaction  of 1942  in favour of respondent. Appellants  carried the  matter in  Writ  Appeal which came  to be  dismissed on 14th October 1985. As stated above the said decision of the Division Bench in Writ Appeal No.52 of 1980 is the subject matter of the present appeal. Facts leading  to Civil  Appeal  No.  8424/95  arising  from S.L.P.(C) No.2407 of 1986      In this  appeal appellant  is one  T. Rajaiah  who  has brought in  challenge the order passed by the Division Bench of the Andhra Pradesh High Court dismissing appellant’s Writ Appeal No.406 of 1977 on 16.11.1985 and confirming the order of the learned Single Judge in Writ Petition No.2449 of 1977 dated 14th  July 1977.  The appellant  purchased 17 acres of Survey No.28  situated at  Dhanora Village in Asifabad Taluk of Adilabad District of Telengana area of Andhra Pradesh. He had purchased  said land  on 3.6.1951  from one Mesram Gangu who was a tribal. The third respondent herein being daughter of said Mesram Gangu filed an application under Section 3(1) of the  Regulation for restoration of possession of the land on the ground that the appellant had purchased the land from a tribal  and, therefore, transaction in his favour was null and void  under  the  said  provision.  The  Special  Deputy Collector, Adilabad, after hearing the parties, by his order

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dated 4th  December 1975 directed ejectment of appellant and restoration of  land in favour of respondent no.3 herein and one Naithan  Bai  another  daughter  of  Mesram  Gangu.  The appellant unsuccessfully  carried the  matter in  appeal and then filed  Writ Petition  No.2449 of 1977 in the High Court against respondent  nos.1 and  2 being the authorities whose orders were  challenged and  respondent no.3,  the  original applicant before the respondent no.2. The said writ petition was dismissed by the learned Single Judge on the ground that the appellant  had an  alternative remedy by way of revision before State  authorities under  the Regulation.  It is this decision of  the learned  Single  Judge  which  came  to  be confirmed  by   the  Division   Bench  which  dismissed  the appellant’s writ  appeal as  aforesaid. That  is  how  after obtaining special  leave  to  appeal  from  this  Court  the appellant has filed the present appeal. Rival Contentions      Mrs. Amareshwari,  learned senior counsel appearing for the  appellants-Deputy   Collector  and  Collector  in  C.A. No.2909/77,  C.A.   No.6/91,  Civil   Appeal  arising   from S.L.P.(C)  No.10746/81   and  Civil   Appeal  arising   from S.L.P.(C) No.1041/86,  contended that  the provisions of the Regulation I  of 1959  as well as the amending Regulation II of 1963  and Regulation  I of  1970 had retrospective effect and consequently  whether the transactions pertaining to the lands in  question  situated  within  the  scheduled  tracts covered by  the Regulations were entered into between tribal transferors and  non-tribal transferees  or  even  for  that matter  between   non-tribal  transferors   and   non-tribal transferees  at   any  time  in  past  got  covered  by  the prohibitory and  invalidating sweep  of Section  3(1) of the Regulation, that the Full Bench had committed a patent error of law  in treating  these provisions as purely prospective. She alternatively  contended that  even  assuming  that  the provisions of  these Regulations  were prospective in nature the concerned  transferees after  the coming  into force  of these Regulations  in the  scheduled areas were not entitled to continue in possession as their possession became invalid at least  from the  dates on which these Regulations applied to the  areas where these lands were situated. Hence on that ground also  the transactions  were  liable  to  be  hit  by Section 3(1)  of the  Regulation. Consequently the orders of eviction as  passed by  the authorities  below were  rightly passed and  could not  have been interfered with by the High Court.      Learned  advocates   for   the   concerned   contesting respondents on  the other hand submitted that the provisions of the  Regulations in  question are  purely prospective  in nature as  there is  no  express  provision  made  in  these Regulations to  make them  retrospective from any back date, nor  do   the  wording  of  these  Regulations  exhibit  any necessary intendment about retrospectivity. Consequently the High Court  was right  in holding  these Regulations  purely prospective in  nature and  therefore concluding  that  they could not  affect the vested and accrued rights in favour of the transferees pursuant to old transactions in their favour which had  taken effect  years  prior  to  the  coming  into operation of these Regulations.      Learned advocate  appearing for  the appellant in Civil Appeal arising  out of  S.L.P.(C) No.2407  of 1986 submitted that the  High Court  had patently  erred in  dismissing his writ petition  only on  the ground of alternative remedy and when  the   Regulation  itself   was  not  retrospective  in character it  could not affect the transaction in his favour entered into years back on 3.6.1951 even though the land was

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situated in  Adilabad District  which ultimately got covered by the  Regulation. And  that if  this Court  takes the view that the  Regulation was  prospective in  nature and did not affect past  transactions then  instead  of  relegating  the appellant to  the remedy  of revision  before the State, his writ petition  which was  dismissed by the High Court may be allowed on  merits. Mrs. Amareshwari, learned senior counsel for the respondent-authorities reiterated her contentions in the other  appeals that  the  transaction  was  hit  by  the Regulation which was retrospective in effect and, therefore, appellant’s writ  petition be  treated as  dismissed also on merits and accordingly his appeal may be dismissed.      Before  we   deal   with   the   question   about   the retrospectivity  of   the  Regulation   in  question  it  is necessary to  note a  few background  facts leading  to  the enactment of the Regulation. Background facts leading to enactment of the Regulation      In the Andhra area, prior to the formation of the State of Andhra  Pradesh 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  tracts  areas except in  favour of  members of hill tribes conferring upon the  persons  belonging  to  the  Scheduled  Tribes  certain benefits. After  the Constitution  of India came into force, Article 244  of the Constitution and the Fifth Schedule were made applicable  to  the  administration  of  the  scheduled areas. Para  6 of the Fifth Schedule empowered the President to notify  the Scheduled  areas  in  consultation  with  the Governor of  the State. The scheduled areas in Andhra region of this  State were  notified by  the President  through the Scheduled Area  (Part ‘A’  States) Order, 1950. Para 5(2) of the Fifth  Schedule empowered  the Governor  of the State to make Regulations  for the  peace and  good Government of the Scheduled 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 transfer of  immovable properties  situated in the scheduled areas from  a member  of  scheduled  tribal  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 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 on with the previous consent in writing of the  Agent. The  said Regulation  further  empowered  the Agent to  decree 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

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were not  willing  to  take  the  property  or  where  their whereabouts were  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 member 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  was  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  inter-alia, the  following  changes, namely:      (i)  A   rule    of   presumption    was           introduced  to   the  effect   that           unless  the   contrary  is  proved,           where a non-tribal is in possession           of land  in the Scheduled areas, he           or  his   predecessors-in-interest,           shall be deemed to have acquired it           through transfer from a tribal;      (ii) Transfers  of   land  in  Scheduled           Areas  in   favour  of  non-tribals           shall  be   wholly  prohibited   in           future;      (iii) Non-tribals  holding lands  in the           Scheduled Areas shall be prohibited           from transferring  their  lands  in           favour  of   persons   other   than           tribals.   Only    partitions   and           devolution by  succession of  lands           held by  them shall  be  permitted;           and      (iv) Where a  tribal  or  non-tribal  is           unable to sell his land to a tribal           on reasonable  terms, it  shall  be           open to  him to  surrender the land           to Government  who shall  thereupon           be obliged to acquire it on payment           of appropriate compensation.      Clause (a) of substituted section 3(1) 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 of  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  Regulation No.1 of 1970 inserts sub-section (4) in Section 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 partition 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.

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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.I  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 3-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.      It may  be stated  that a  Division Bench of this Court consisting of  M.P. Thakkar  and B.C.  Ray,  JJ.,  by  their decision dated  14th July  1988 in Civil Appeal No.2299-2300 of 1972  upheld  the  validity  of  the  provisions  of  the Regulation in  so far  as they sought to declare as void any transfer of  immovable property in the agency tracts entered into even by a non-tribal in favour of another non-tribal.      Even though the aforesaid provisions of the Regulations represent a  species of  welfare legislation  for protecting the illiterate  tribals from  exploitation at  the hands  of non-tribals  the   short  question   which  arises  for  our consideration is  as to  whether these beneficial provisions have any retrospective effect. Our conclusion and the reasons for the same      Having given  our anxious  consideration to  the  rival contentions canvassed  for our  consideration by the learned counsel appearing for the respective parties we have reached the conclusion  that the  Full Bench  of the  High Court was perfectly justified  in taking  the view that on the express language of the Regulation, it was prospective in nature and even by  necessary intendment  it could  not be posited that the  framer   of  the  Regulation  wanted  to  give  it  any retrospective effect.  Reasons for  our aforesaid conclusion are obvious.  The Regulation  I of  1959 originally  applied only to  scheduled areas  of East  Godavari, West  Godavari, Viskahapatham  and   Srikakulam   districts.   By   amending Regulation II  of 1963,  it was extended to Telengana region comprising of  Adilabad, Warangal,  Khammam and  Mahbubnagar districts of  Andhra Pradesh. That extension to districts in Telengana area  became effective  from 1.12.1963. Clause (2) (a) of  the Regulation defines ‘Agency Tracts’ to mean, ‘the areas in  the districts  of East  Godavari,  West  Godavari, Viskhapatham, Srikakulam,  (I) Adilabad,  Warangal,  Khammam and Mahbubnagar  declared, from  time to  time, as Scheduled Areas by the President under sub-paragraphs (I) of paragraph 6 of  the Fifth  Schedule to  the  constitution’.  The  term ‘transfer’ is  defined by Clause (2)(g) of the Regulation to mean, ‘mortgage  with or  without possession,  lease,  sale, gift, exchange or any other dealing with immovable property, not being  a testamentary  disposition and includes a charge on such  property or a contract relating to such property in respect of  such mortgage,  lease sale,  gift,  exchange  or other  dealing’.  Then  follows  Section  3(1)(a)  which  is material for our present purpose. It is as under:      "3.(1)(a) -  Notwithstanding  any  thing      contained 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

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    of a Schedule Tribe, shall be absolutely      null and  void, unless  such transfer is      made in  favour of  a person,  who is  a      member of a Scheduled Tribe or a society      registered or  deemed to  be  registered      under  the  A.P.  Cooperative  Societies      Act, 1964,  which is  composed solely of      members of the Scheduled Tribes." It may  be noted  that the words ‘whether or not such person is a  member of  a Scheduled  Tribe’  as  found  in  Section 3(1)(a) were  inserted  by  Regulation  I  of  1970  meaning thereby prior  to the  amending Regulation coming into force Section 3(1)(a) hit transfers of immovable property situated in agency  tracts by  only a member of a scheduled tribe and if such  transfer was  made by a non-tribal such transaction was outside the sweep of Section 3(1)(a). A close reading of Section 3(1)(a)  indicates that  after coming  into force of the said  provision any transfer of immovable property which is in  the sweep of Section 3(1)(a) would be absolutely null and void  unless the  transfer  falls  within  the  excluded category as  mentioned in  the said  provision. This Section nowhere indicates either expressly or even impliedly that it is meant  to  adversely  affect  completed  transactions  of transfer which  might have  taken place  prior to the coming into force  of  Section  3(1)(a)  of  the  Regulation.  Mrs. Amareshwari, learned  senior counsel  could not  effectively urge  that   there  was   any  such  express  indication  of retrospectivity in  the said  provision or any other part of the Regulation. It is obvious that if Section 3(1)(a) was to apply retrospectively  to hit  even past  transfers it would have mentioned  with  reference  to  transfer  of  immovable property as under :      Whether effected  before or after coming      into operation of this Regulation." Such or  similar words  are conspicuously absent. Therefore, Section 3(1)(a)  as it  stands cannot  be said  to have  any express retrospective effect. In this connection we may also mention one  submission canvassed  by learned senior counsel for the  authorities. She  contended  that  Section  3  sub- section (1)(b)  indicates such  a retrospective  effect. The said provision which is noted earlier reads as under :      "3(1)(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  a      Scheduled Tribe,  shall be  presumed  to      have been acquired by such person or his      predecessor  in   possession  through  a      transfer made  to him  by a  member of a      Scheduled Tribe." It is  difficult to  appreciate how this provision can be of any assistance to the learned senior counsel, for urging any retrospective operation of Section 3. Section 3(1)(b) enacts a rule  of evidence  which may  be pressed  in service  in a properly  constituted   enquiry  in  cases  where  the  main provision of  Section 3(1)(a) gets attracted meaning thereby if in  connection with  any transfers  of immovable property situated in  Agency tracts  effected after  the coming  into operation of  Section 3(1)(a), a question arises whether the transfer was  made by  a transferor  who was  a member  of a Scheduled Tribe  and if  it is  shown that  such transferred land  was  in  possession  of  a  non-tribal,  a  rebuttable presumption would  arise under  Section  3(1)(b)  that  such transferor was  a member  of Scheduled Tribe. This provision has nothing  to do  with any retrospective effect of Section

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3(1)(a) itself  nor does  it  even  remotely  indicate  that because of  the rule of evidence enacted in Section 3(1)(b), even prior  completed transfers would also be covered by the sweep of Section 3(1)(a).      Next  Mrs.  Amareshwari  submitted  that  at  least  by necessary implication such retrospectivity can be culled out and for that purpose she invited our attention to Sections 9 and 10(1)  of the  Regulation. The  said provisions  read as under :      "9.  The Agency Tracts Interest and Land      Transfer Act,  1917  (Madras  Act  I  of      1917) is  hereby repealed  to the extent      to which any of the provisions contained      therein correspond, or are repugnant, to      any of  the provisions contained in this      Regulation.      10.  (1)  The  provisions  contained  in      this Regulation shall not affect ---      (a) Any  transfer made  or sale effected      in execution  of  a  decree  before  the      commencement  of   the   Agency   Tracts      Interest and  Land  Transfer  Act,  1917      (Madras Act I of 1917), or      (b) Any  transfer made  or sale effected      in  execution  of  a  decree  after  the      commencement of  the said Act and before      the commencment  of this  Regulation, if      such transfer  or sale  was valid  under      the provisions of the said Act." We fail  to appreciate  how the  said Sections can be of any avail to  the learned  senior counsel  for establishing  the case of  implied retrospective  effect  of  the  Regulation. Section 9  deals with  the repeal  of the  erstwhile  Agency Tracts Interest  and Land  Transfer Act,  1917. It is not in dispute between  the parties  that the  said Act of 1917 did not apply  to  Telengana  area.  Consequently  reference  to Section 9  in connection  with lands  situated in  Telengana area becomes  irrelevant. Similarly Section 10 which effects savings in  cases where  the earlier  Act of  1917 which had applied  stood   repealed  by   Section  9,   also   becomes irrelevant. However,  so far  as areas  which  were  earlier governed by the Act of 1917 are concerned, even for them, we fail to  appreciate, how Section 9 can be pressed in service by learned  senior counsel  for the appellant authorities to cull out  an implied retrospective effect of the Regulation. In order  to show  that Section  3 of the Regulation had any implied retrospective effect provisions pertaining to repeal and savings  contained in  Sections 9  and 10 would be of no assistance. No  other provisions  of the Regulation could be pressed in  service by learned senior counsel for supporting her contention  that Section  3(1) (a)  was retrospective by any necessary  implication. It  is obvious that transactions which have  taken place  years back prior to the very parent Regulation No.I  of 1959  seeing the  light of  the day, and which had created vested rights in favour of the transferees could not  be adversely  affected by  the sweep  of  Section 3(1). It  cannot be  said to  have any implied retrospective effect  which  would  nullify  and  confiscate  pre-existing vested  rights  in  favour  of  the  concerned  transferees. transfers in  whose favour  had become final and binding and were  not  hit  by  the  then  existing  provisions  of  any nullifying statutes.  In this  connection  we  may  usefully refer to  Francis Bennion’s Statutory Interpretation, Second Edition at  page 214  wherein the learned author, in Section 97, deals  with retrospective operation of Acts. The learned

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author has commented on this aspect as under :      "The essential idea of a legal system is      that current  law should  govern current      activities. Elsewhere  in  this  work  a      particular   Act   is   likened   to   a      floodlight switched  on or  off, and the      general body of law to the circumambient      air. Clumsy  though  these  images  are,      they  show   the  inappropriateness   of      retrospective laws.  If we  do something      today, we  feel that the law applying to      it should be the law in force today, not      tomorrow’s backward  adjustment  of  it.      Such, we  believe, is the nature of law.      Dislike  of   ex  post   facto  law   is      enshrined   in    the   United    States      Constitution and in the constitutions of      many American  states, which  forbid it.      The true principle is that lex prospicit      non  respicit  (law  looks  forward  not      back). As  Willes J  said, retrospective      legislation is  ‘contrary to the general      principle that  legislation by which the      conduct of  mankind is  to be  regulated      ought, when  introduced  for  the  first      time, to  deal  with  future  acts,  and      ought not  to change  the  character  of      past transactions  carried on  upon  the      faith of the then existing law.’           Retrospectivity   is    artificial,      deeming a  thing to  be what it was not.      Artificiality   and   make-believe   are      generally  repugnant   to  law   as  the      servant of  human welfare. So it follows      that  the   courts  apply   the  general      presumption that  an  enactment  is  not      intended to  have retrospective  effect.      As always,  the power  of Parliament  to      produce such  an effect  where it wishes      to do  so is nevertheless undoubted. The      general  presumption,   which  therefore      applies   only   unless   the   contrary      intention appears,  is stated in Maxwell      on the Interpretation of Statutes in the      following  emphatic   terms:  ‘It  is  a      fundamental rule  of English law that no      statute shall  be construed  to  have  a      retrospective operation  unless  such  a      construction appears very clearly in the      terms of the Act, or arises by necessary      and distinct implication.’           Maxwell’s  statement  has  received      frequent  judicial   approval.   It   is      however  too  dogmatically  framed,  and      describes as  a rule  what (for  reasons      stated in  Code s 180) is really no more      than a presumption which, in the instant      case,  may   be  outweighed   by   other      factors. Where,  on a  weighing  of  the      factors,    it     seems    that    some      retrospective effect  was intended,  the      general       presumption        against      retrospectivity  indicates   that   this      should be kept to as narrow a compass as      will   accord   with   the   legislative

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    intention."      Mr.  Bobde,   learned   counsel   appearing   for   the respondents as  amicus curiae  at our  request, invited  our attention to  a decision  of this  Court in  the case  of R. Rajagopal  Reddy  (Dead)  by  LRs.  and  Others  v.  Padmini Chandrasekharan (Dead)  by LRs.  (1995 (2)  SCC 630) wherein one of us (Majmudar, J.) speaking for a Three Judge Bench on the  question   of  retrospective   effect  of  a  statutory provision observed as under :      "... Even  otherwise,  it  is  now  well      settled that where a statutory provision      which    is     not    expressly    made      retrospective by  the legislature  seeks      to    affect     vested    rights    and      corresponding  obligations  of  parties,      such provision  cannot be  said to  have      any retrospective  effect  by  necessary      implication.   In    Maxwell   on    the      Interpretation of  Statutes,  12th  Edn.      (1969), the  learned author has made the      following observations  based on various      decisions of different courts, specially      in Re:  Athlumney, (1898)  2 Q.B. at pp.      551, 552 :           ‘Perhaps no rule of construction is      more firmly established than this - that      a retrospective  operation is  not to be      given to  a statute  so as  to impair an      existing right  or obligation, otherwise      than as  regards matters  of  procedure,      unless that  effect  cannot  be  avoided      without doing  violence to  the language      of the  enactment. If  the enactment  is      expressed in  language which  is  fairly      capable  of  either  interpretation,  it      ought to  be  construed  as  prospective      only.’  The   rule  has,  in  fact,  two      aspects, for  it, ‘involves  another and      subordinate rule,  to the  effect that a      statute is  not to be construed so as to      have a  greater retrospective  operation      than its language renders necessary.’ ’           In the  case of  Garikapati Veeraya      v. N.  Subbiah Choudhry (AIR 1937 SC 540      at p.553,  para 25)  Chief Justice  S.R.      Das speaking for this Court has made the      following pertinent observations in this      connection :      ‘The  golden  rule  of  construction  is      that, in  the absence of anything in the      enactment to  show that  it is  to  have      retrospective operation, it cannot be so      construed  as  to  have  the  effect  of      altering the  law applicable  to a claim      in litigation  at the  time when the Act      was passed.’ " Therefore, we agree with the submission of Mr Bobde, learned counsel for respondents, that the provisions of Section 3(1) of the  Regulation are  purely prospective  in nature and do not affect  past transactions  of transfers effected between tribals and  non-tribals or  between  non-tribals  and  non- tribals themselves  in the  Agency Tracts  at  a  time  when neither Regulation  I of  1959 nor  Regulation II of 1963 or Regulation I  of 1970  was in  force. Such past transactions remained  untouched   by  the   sweep   of   the   aforesaid

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subsequently enacted Regulations.      Mrs.  Amareshwari,   learned  senior   counsel  in  the alternative contended  that even  assuming  that  all  these Regulations do  not adversely  affect past transactions even then, after  the coming  into force  of these Regulations in the concerned  Agency Tracts,  the possession  of  erstwhile transferees would become illegal and get hit by Section 3(1) of the  Regulation. It  is not  possible to  agree with this contention for  the simple  reason that before the continued possession is  found fault  with, it  must be shown that the initial  entry  of  the  transferee  was  violative  of  any provision of  law or  that by  any subsequent  statute  such continuance  of   possession  under   an  originally   valid transaction, would  get  adversely  affected.  Section  3(1) nowhere whispers about such an eventuality. On the contrary, employment  of  terminology  to  the  effect,  "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 a person who is a member of a  Scheduled tribe"  clearly indicates  that Section 3(1) (a) seeks to hit only those transfers which take place after the coming  into force  of  that  provision  and  when  such transfers are found to be absolutely null and void then only the  question   of  continued  illegal  possession  of  such transferee and of evicting such transferee from the land and restoration of such land to the transferor would arise under Section 3(2)(a). The said provision reads as under :      "3.(2)(a). Where a transfer of immovable      property is  made  in  contravention  of      sub-section (I),  the Agent,  the Agency      Divisional   Officer    or   any   other      prescribed officer  may, on  application      by any one interested, or on information      given in writing by a public servant, or      suo-motu decree  ejectment  against  any      person in  possession  of  the  property      claiming under  the transfer  after  due      notice to  him in  the manner prescribed      and may  restore it to the transferor or      his heirs." On  a  conjoint  reading  of  Section  3(1)(a)  and  Section 3(2)(a), it  becomes clear that the Section seeks to hit the transfers effected  after the  Section came  into force  and possession only under such invalid transfers is sought to be dealt with  for the  purpose of  eviction of transferees and restoration of  possession to transfers, as the case may be, under Section  3(2)(a) of  the Regulation. Consequently, the alternative submission  of learned  senior counsel  for  the authorities that  even though transfer of immovable property in the Agency tracts may not be hit by Section 3(1)(a) still possession under  such transfers  could be  restored to  the original  transferor   under  Section   3(2)(a),  cannot  be countenanced. Section  3(2)(a) is  a  corollary  to  Section 3(1)(a) and  cannot have  any independent  role to play. Nor can it  cover any area which is not encompassed by the sweep of Section  3(1)(a). In  this connection  Mrs.  Amareshwari, learned senior  counsel also  invited our  attention to  two decisions of  this Court.  Mrs. Amareshwari,  learned senior counsel for  the appellant authorities invited our attention to a  Constitution Bench  judgment of this Court in Rao Shiv Bahadur Singh  and Another  v. The  State of Vindhya Pradesh (1953 SCR 1188). In that case the Constitution Bench of this Court speaking  through Jagannadhadas  J., had  to  consider whether  prohibition  of  Article  20  of  the  Constitution

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against convictions  and subjections  to penalty would cover ex post  facto  laws  passed  before  the  Constitution  was promulgated. Answering  the question  in the  affirmative it was observed that the prohibition contained in Article 20 of the Constitution  against  convictions  and  subjections  to penalty under  ex post  facto laws  is not  confined in  its operation to  post-Constitution laws  but applies also to ex post facto  laws passed  before the  Constitution  in  their application to  pending proceedings.  We fail  to appreciate how this  decision can be of any avail to the learned senior counsel for  the appellant  authorities. On  the wording  of Article 20  the aforesaid view was taken by the Constitution Bench. The  wordings of  Section 3(1)(a)  read with  Section 3(2)(a) of  the Regulation  are entirely  different and they have to  be construed in their own light. The learned senior counsel Mrs.  Amareshwari  then  invited  our  attention  to another decision  of the Constitution Bench of this Court in Bishun Narain  Mishra v.  State of  Uttar Pradesh  &  Others (1965 (1)  SCR 693).  In that  case Wanchoo J., speaking for the Constitution  Bench had  to examine the effect of a rule promulgated by Government of Uttar Pradesh under Article 309 of the  Constitution reducing  the age  of superennuation of Government servants from 58 years to 55 years. The appellant before this  Court who  got hit  by  the  said  rule  raised various contentions  one of  which was  that  the  rule  was retrospective  in   character  and,  therefore,  bad  as  no notification  promulgating  the  rule  could  be  made  with retrospective effect.  Repelling this contention it was held by the  Constitution Bench that there was no retrospectivity in the  rule. All that it provided was that from the date it came into force the age of retirement would be 55 years. The rule would  operate only  for the  period after it came into force. Nor  did the  proviso make  it retrospective. It only provided as  to how  the period  of service  beyond 55 years should be  treated in view of the earlier rule of 1957 which was being  changed by  the rule  of 1961.  The second  order issued on  the same  day clearly  showed that  there was  no retrospective operation  of the  rule for  in actual fact no Government servant  below 58  years was  retired before  the date of  the new  rule i.e.  May 25, 1961. Thus the new rule reducing the  age of  retirement from  58 years  to 55 years could not  be held  to be  retrospective. It is difficult to appreciate how  this judgment can be of any avail to learned senior counsel  for the  appellant authorities,  because the appellant in  that case  continued in Government service and at that time the new rule reducing the age of superannuation came into  force his  superannuation was governed by the new rule reducing the age of superannuation from 58 to 55 years. There was  no question  of any  retrospective effect  of the said rule.  But  the  new  rule  clearly  covered  the  then existing service  conditions of Government servants who were still in  service. Section  3(1) of the Regulation cannot be supported on  the ratio  of that  judgment to nullify vested rights under past completed transactions. As we have already discussed earlier, Section 3(1)(a) read with Section 3(2)(a) of the Regulation seeks to hit only those transfers of lands in Agency  tracts which  take  place  after  the  advent  of Section  3(1)(a)   of  the   Regulation.  Possessions  under transfers which  are beyond  the sweep  of  Section  3(1)(a) cannot be said to have continued under any invalid transfers as envisaged  by Section  3(1)(a). Such possessions obtained under the  then existing  old and  valid transfers  would be outside the  ken of  the Regulation  itself. The alternative submission canvassed  by  learned  senior  counsel  for  the authorities, therefore, also has no substance and has got to

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be rejected.      These were the only contentions canvassed in support of the  appeals   preferred  by   the  authorities   under  the Regulation. There  is no  substance in these contentions. It must be  held that  as the  transfers in  these  cases  were effected years  back, prior  to the coming into force of the Regulations in  question, they could not be covered by these Regulations. The  authorities acting  under the  Regulations had no  jurisdiction to  deal with  them. In  the result the Civil Appeal  Nos.2909 of  1977; 6  of  1991;  Civil  Appeal No.8422/95 arising  out of  S.L.P.(C) No.10746  of 1981  and Civil Appeal  No.8423/95 arising out of S.L.P.(C) No.1041 of 1986 will have to be dismissed.      Before parting  with these  appeals we have to place on record our  appreciation for  the assistance rendered by Mr. Bobde, learned counsel who on our request was good enough to appear amicus curiae for the respondents in these cases.      So far  as  Civil  Appeal  No.8424/95  arising  out  of S.L.P.(C) No.2407  of 1986  is concerned,  though  the  High Court had  dismissed the  writ petition  on  the  ground  of alternative remedy,  in view  of our  decision on  the  main controversy and  our finding  that  the  provisions  of  the Regulation would  not hit  transaction of  transfers entered into prior  to coming  into force  of  the  Regulation  this appeal is  required to  be allowed on merits. In the present case even  though the  sale was  of  the  land  situated  in Adilabad District  of Telengana  region which  was forming a part and parcel of the Agency tracts, as the transaction was of 3.6.1951,  much prior  to the  coming into  force of  the Regulation I  of 1959  as amended  by Regulation  II of 1963 which became  effective in  Adilabad from  31.12.1963,  this transaction was  outside the  sweep of  Section 3(1)  of the Regulation. Consequently  no useful  purpose would be served by relegating the appellant to the remedy of revision before the State  authorties when this question is concluded by our present judgment.  The appeal  is accordingly  allowed.  The judgments of  the Division  Bench of the High Court and that of learned  Single Judge  are set aside. Writ Petition filed by the  appellant before  the High  Court  is  allowed.  The orders of the authorities below against the appellant passed under Section  3(1)(a) read  with  Section  3(2)(a)  of  the Regulation will  stand  quashed  and  set  aside.  As  these appeals are  being disposed  of on  a question  of  law  and keeping in  view the  facts and  circumstances of the cases, even though the appeals by the authorities are dismissed and the last appeal moved by T. Rajaiah arising out of S.L.P.(C) No.2407 of  1986 is  allowed, there  will be  no order as to costs in all these appeals.