TaxTMI 
TaxTMI 
2009 (7) TMI 1302
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....uch members and for matters connected therewith. The said Act received the assent of the President of India. It was included in the Ninth Schedule of the Constitution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. RULES UNDER THE SAID ACT 3. Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986. PROCEEDINGS 4. Members of the Scheduled Tribes filed applications for restoration of their lands in the year 1988 in terms of the provisions of the 1975 Act and the 1986 Rules. As the said Act was not implemented in letter and spirit, one Dr. Nallathampy Thera filed a writ petition which was marked as O.P. No.8879 of 1988 praying inter alia for issuance of a Writ of Mandamus compelling the State to implement the provisions of the Act and directing....
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....icular to dispose of all the applications within the extended time." Applications for restoration of lands which were pending were disposed of pursuant to the said directions. Appeals were filed in a few cases but in most of them the orders directing restoration of lands became final. Strangely however, no actual restoration of land was effected. Another application was filed by the writ petitioner on 1st March, 1996 complaining about non-implementation of the said order. The learned Additional Advocate General once again gave an assurance that the order of the authorities under the 1975 Act would be implemented. On or about 28th March, 1996 the High Court directed :- "The learned Additional Advocate General assures the court that all out efforts will be made to dispose of all the pending applications within the time stipulated by this court and further that wherever there has been final orders passed, actual restoration will also be formal orders are necessary today. Post on 31.5.1996." (emphasis supplied)" Further affidavits were filed by the Revenue Divisional Officers reporting progress in the disposal of the applications made under the Act. On or about 13th August, 1996....
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....r is vacated. 2. The learned Single Judge, while disposing of C.M.P. No. 28950 of 1995 in O.P. 8879 of 1988, was pleased to grant time till 30.9.1996 for reporting compliance with direction No.1 in the order. The time was extended from time to time for compliance with the directions till the order of stay was granted. Now that the order of stay having been vacated, we grant six months time to the State for carrying out the direction contained in the order of the learned single judge dated 13th August 1996, passed in C.M.P. No. 28950 of 1995, without prejudice to the right of the Government in considering the various aspects of the matter to bring forward suitable legislation with suitable changes, if they so desire." (emphasis added) On or about 23rd November, 1998 an application for initiating proceedings under the Contempt of Courts Act, 1971 was filed against the State and its officers on the premise that orders of the High Court had not been complied with. A notice was issued therein. A petition was filed by the State for extension of the period by six months from 21st November, 1998. However, a statement was made before the Full Bench that a new Bill would be introduced bef....
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....tion of agricultural lands. Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged by filing two writ petitions; one marked as O.P. No.25332 of 1999 filed by Niyamvedi, respondent No.1 in Civil Appeal No.105 of 2001 and another O.P. No.26499 of 1999 by Peoples Union for Civil Liberties, Kerala State Unit, respondent No.1 in Civil Appeal No.104 of 2001. In the aforesaid writ petitions counter-affidavits were filed on behalf of the Union of India supporting the stand of the tribes. Malayora Karshaka Federation (appellant before us in C.A. No.899 of 2001) was impleaded as a party therein. By reason of the impugned judgment and order dated 24th August, 2000, the High Court declared the aforesaid provisions as ultra vires. FINDINGS OF THE HIGH COURT 6. The High Court, while acknowledging, the legislative intent of the State of Kerala, opined that it was colourable in nature as by reason of the provisions of the 1975 Act and the orders passed in favour of the members of the Scheduled Tribes, a vested right accrued to the members of Scheduled Tribes was destroyed by reason of the provisions of 1....
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....Unit striking down the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the 1999 Act. Civil Appeal No.899 of 2001 has been filed by Malayora Karshaka Federation Kerala Meenangadi (respondent No.7 before the High Court in O.P. No.25332 of 1999) against the aforesaid order dated 24th August, 2000. Civil Appeal No.7079 of 2001 has been filed by M. Mohan Kumar, Chief Secretary, Government of Kerala against the order dated 4th December, 2000 passed by a Division Bench of the High Court in C.C.C. No. 542 of 1986 whereby the Court directed the appellant to appear before it for framing charges against him in not complying with the final direction issued by the Court on 18th December, 1999. CONTENTIONS 8. Mr. T.L. Viswanath Iyer, learned senior counsel and Mr.Dayan Kishnan, Advocate, appearing on behalf of the appellants would submit :- (i) The High Court committed a manifest error in holding that the 1999 Act suffers from the vice of colourable exercise of power or is otherwise mala fide despite holding that the Legislature of the State of Kerala had the requisite legislative competence therefor. (ii) The members of the Scheduled Tribes had no fundamental or comm....
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....er the same and thus the 1975 Act even to that extent was not applicable. Mr. Rajinder Sachar, learned senior counsel appearing on behalf of respondents in C.A. Nos. 104-105 of 2001, on the other hand, would contend:- (i) The 1999 Act being in the teeth of the mandamus issued by the High Court has rightly been held to be unconstitutional in view of the fact that nothing has been brought on record to show that the 1999 Act was enacted by the legislature despite knowledge that the directions issued by the High Court had attained finality. (ii) The 1975 Act having conferred a right of restoration on the Members of the Scheduled Tribes, both in respect of agricultural and non-agricultural lands, the provisions of 1999 Act and in particular Section 6 thereof having confined its operation only to agricultural land and that too with retrospective effect from 24th January, 1986, must be held to be ultra vires Article 14 of the Constitution of India. (iii) The Members of the Scheduled Tribes being mostly residents of forests and the lands restored in their favour being forest lands, no legal infirmity was committed by the High Court in holding that the tribals; the community being w....
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....ty' to include standing crops and trees but does not include growing grass. `Scheduled tribe' has been defined in Section 2(e) to mean any of the Scheduled Tribes relating to the State as specified in the Constitution (Scheduled Tribes) Order, 1950. Section 2(g) defines `transfer' as under :- " `transfer' , in relation to immovable property, means an act by which immovable property, is conveyed to any documentary or oral transaction, whether by way of mortgage with or without possession, lease, sale, gift or exchange, or in any other manner, not being a testamentary disposition; and includes a charge, `vilapanayam', `unduruthi', contract relating to immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or otherwise, voluntary surrender and abandonment. Explanation. - For the purposes of this clause. - (i) "vilapanyam" means hypothecation of crops on payment of consideration or otherwise; (ii) "unduruthi" means an assignment of the right to collect the usufructs available or anticipated to be available to any land during specified term for a specified price." Section 4 imposes restrictions on tra....
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....ion, or enjoyment, as the case may be, of such property, if such transfer had been made; before the date of commencement of this Act. (b) for restoration of possession or enjoyment, as the case may be, of such property and for the prosecution of the person who has procured such transfer, if such transfer was made on or after the date of commencement of this Act." Section 11 provides for liability to pay amount. Section 12 provides for advancement of loan by the Government for payment of the amount on such terms and conditions as has been laid down under sub-sections (2) and (3) thereof. The Act also prescribed offences and provided for penalties etc. Section 22 contains the rule making power. 1999 ACT The 1999 Act was published in the Kerala Gazette Extraordinary on 20th April, 1999. It was given a retrospective effect and retroactive operation from 24th January, 1986. `Land' has been defined in 2(b) to mean any agricultural land. Section 5 of the Act reads as under:- "5. Certain transfer to be invalid - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, custom or usage, or in any ju....
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....lity to pay amount.- (1) Notwithstanding anything contained in any other law for the time being in force, where the possession or enjoyment of any land is restored to a member of a Scheduled Tribe under this Act, an amount equal to the aggregate of the actual amount of consideration received by such member at the time of the transfer and an amount determined by the competent authority for improvements, if any, made after the transfer and before such restoration shall be paid by him to the person from whom possession or enjoyment, as the case may be, was restored, in accordance with the rules made under this Act: Provided that no amount shall be payable if the transfer was effected on or after the commencement of this Act. (2) The amount determined by the competent authority under sub-section (1) shall be final and shall not be called in question in any court. (3) The amount payable under sub-section (1) shall be recoverable in such manner as may be prescribed. Section 10 provides for assignment of land, which reads:- "10. Assignment of land.- (1) Notwithstanding anything contained in Section 6 or in the Kerala Government Land Assignment Act, 1960 (30 of 1960) and the rules ....
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....d the provisions of Section 1(3) of 1975 Act stating the said provision to be conditional legislation and not a delegated legislation. The Constitutional validity of statutes enacted for the benefit of the members of Scheduled Tribe by some other State although not identical has been upheld by this Court in Manchegowda and others v. State of Karnataka and others, [(1984) 3 SCC 301], Lingappa v. State of Maharashtra, [(1985) 1 SCC 479]; P. Rama Reddy v. State of A.P. [ (1988) 3 SCC 433 ] and Samtha v. State of Andhra Pradesh, [ (1997) 8 SCC 191 ]. These decisions have been rendered on statutes which are not absolutely identical. All of which are not in pari materia with the other. However, we may notice that in Manchegowda (supra) this Court held:- "19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a trans....
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....n." The 1999 Act, thus, having confined itself to `agricultural land', indisputably the State Legislature only has the requisite legislative competence therefor. It is one thing to say that an enactment suffers from vice of colourable legislation on the premise that it does not have legislative competence but it is another thing to say that only because the Act was amended purporting to nullify an earlier Act (in the words of the High Court), the same by itself would attract the said doctrine. For invoking the doctrine of `Colourable Legislation' the legislature must have transgressed the limits of its constitutional power patently, manifestly and directly. The doctrine of `Colourable Legislation', in our opinion, has no application in the instant case. The said doctrine is founded on legislative competence of the State. An act of mala fide on the part of the legislature also is beyond the province of judicial review. In fact no motive can be attributed to the Legislature for enacting a particular statute. The question in regard to the constitutionality of the statute must be considered keeping in view only the provisions of the Constitution. In K.C. Gajapathi Nara....
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....d to sober the merchants whose arts of dealing with customers may include "many a little makes a mickle'. If these steps in reasoning have the necessary nexus with the power to tax under Entry 54 List II, it passes one's comprehension how the impugned legislation can be denounced as exceeding legislative competence or as a "colourable device" or as "supplementary, not complementary'." [See also Dharam Dutt and others v. Union of India, [(2004) 1 SCC 712]." The principles of determining the constitutionality of statute has been stated in Gujarat Ambuja Cements Ltd. v. Union of India, [(2005) 4 SCC 214 ] thus:- "28. Having determined the parameters of the two legislative entries the principles for determining the constitutionality of a statute come into play. These principles may briefly be summarised thus: (a) The substance of the impugned Act must be looked at to determine whether it is in pith and substance within a particular entry whatever its ancillary effect may be [Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR at p. 65, A.S. Krishna v. State of Madras, State of Rajasthan v. G. Chawla, Katra Educational Society v. State of U.P., D.C. Johar & So....
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....t it is violative of the provisions of Part III of the Constitution of India or any other provisions but not on the ground of colourable exercise of power or mala fide on the part of the legislature. The object, purpose or design referred to by the High Court should be taken into consideration for the purpose of examining its constitutionality on the touchstone of the provisions of Part III of the Constitution of India and not otherwise. In that view of the matter, the High Court committed a serious error in relying upon Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Company Ltd. and Others [AIR 1954 SC 119] and Jagannath Baksh Singh v. State of U.P. [AIR 1962 SC 1563], which did not deal with the question of legislative competence of the legislature of a State, as was the question before the High Court. No material was placed before the High Court to establish that the 1999 Act was confiscatory in nature. It is one thing to say that a citizen of India having been conferred with a right on lands by reason of a statutory provision, has been deprived therefrom without payment of any compensation and, thus, the same would be violative of Article 300A of the Constitut....
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....aken away by another. It is also a trite law that the State is entitled to change its legislative policy having regard to the ground realities and changing societal condition. In fact, the legislature is expected to take steps for enacting a new statute or amending the same so as to keep pace with the changing societal condition as well as taking into consideration the development of law, both domestic and international. The High Court, in our opinion, furthermore committed a serious error in opining that although the legislature had the legislative competence to enact Act 12 of 1999, but nevertheless, proviso to Sections 5(1) and 5(2) thereof would be held to be colourable. The High Court should have examined the question of their constitutionality on the touchstone of Articles 14 and 21 of the Constitution of India and not on the premise that the said provisions are colourable in nature. PRESIDENTIAL ASSENT 13. It was held by the High Court that Presidential Assent was necessary and the 1999 Act was enacted to by-pass the mandatory requirement of the President's Assent. In determining the said issue, it again ought to have posed unto itself the right question, viz., whet....
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....Revenue Divisional Officers to cause delivery of the properties covered by orders for restoration against which no appeals were pending and in which no compensation was payable, forthwith and in any event within six weeks from that date. A writ appeal was preferred thereagainst and an interim order of stay was passed on 11th October, 1996. The matter was referred to a Full Bench. We have noticed heretobefore the order dated 25th November, 1998. We have also noticed the order of the Full Bench dated 6th January, 1999. The High Court was, thus, aware of the impending legislation. The extension of time was subject to a new legislation. The 1975 Act was a conditional legislation. It came into force with effect from 24th January, 1986. Directions were issued only in regard to implementation of the statutory provisions It was not a case where by reason of issuance of writ of mandamus, certain benefits were conferred on a person or a group of persons. In Madan Mohan Pathak (supra), the Calcutta High Court had issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class III and Class IV employees for years April 1, 1975 to March 31, 1976 along w....
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.... 1975 to March 31, 1976. It appears that unfortunately the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement insofar as they relate to payment of annual cash bonus to Class III and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect from April 1, 1975. But the writ of mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year April 1, 1975 to March 31, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year April 1, 1975 to March 31, 1976 was concerned, it became crystallised in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and not any right to annual cash bonus under the Settlement. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class....
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....s case while the learned Single Judge of the High Court issued a direction that the applications filed by the members of the Scheduled Tribes should be determined by the Revenue Authorities in terms of the provisions of the 1975 Act; the same, in our opinion, did not mean that the High Court itself had issued a writ of mandamus directing restoration of the lands in question. As in most of the cases members of the Scheduled Tribes have not been paid compensation through their vendees in terms of the provisions of 1975 Act. They did not attain finality. If that be so, in our opinion question of invoking the decision of Madan Mohan Pathak (supra) in the factual matrix involved herein does not arise. Further, it is one thing to say that a writ of mandamus shall be obeyed despite passing of a subsequent Act as it had attained finality or that it had not been brought to the notice of the Legislature, but it is another thing to say that no writ of mandamus was issued conferring rights upon the parties. Directions to implement the provisions of the Act by itself did not confer any right upon the parties. The lis has to be adjudicated upon. It did not attain finality in that sense of the ....
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....lained in Indian Aluminium Co. v. State of Kerala (supra) to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Yet again, in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India, [(2003) 5 SCC 23], explaining Madan Mohan Pathak, it has been held :- "26. The decision is an authority for the principle that a judicial decision which has become final inter partes, cannot be set at naught by legislative action, a principle that is well entrenched. Therefore, if, as has been contended by the appellant, the High Court in 1981 had in proceedings between the appellant and the Revenue held that the appellant was entitled to the benefit of the deduction under Section 80-P(2)(a)(iii) of the Act, and the Revenue has not impugned the High Court's decision, that decision binds the parties for the assessment years in question and cannot be reopened because of the 1998 Amendment. This principle, however, does not in any way detract from the principle that the legislature may "cure" the statute so that it more correctly represents i....
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....Act). Admittedly, the 1999 Act was made effective retrospectively from 24th day of January, 1986. It contains a Repeal and Savings clause. In that view of the matter, in our opinion, it was not necessary to term the statute as a validating statute containing a non-obstante clause. It is difficult to conceive, having regard to the orders issued by the Full Bench, that the Legislature were not aware of the orders passed by the High Court. In any event the Full Bench of the High Court has stated that the directions issued by it would be subject to the new enactment. We, therefore, are of the opinion that Madan Mohan Pathak (supra) has no application to the present cases. VESTED RIGHT VIS-@-VIS ARTICLE 14 15. A vested right has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, page 4888, in the following terms: "Vested rights. Property rights. The expression `vested right' means an absolute or indefeasible right. It is an immediate fixed right in present or future enjoyment in respect of property. The claim based on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced ag....
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....took no steps for implementation therefor for a long time. The process started only when a writ of mandamus was issued by the High Court. For its implementation, the substance of the proceedings has been noticed by us heretobefore. The 1975 Act and the 1986 Rules provided for several stages. The procedure laid down in the 1986 Rules consists of filing of application for restoration, calling for objections, determination of the issues, filing of appeals. Once that stage reached finality, the applicants are required to pay compensation to the land holder in terms of Section 9 of the 1975 Act which was a condition precedent therefor. The 1975 Act contemplated raising of loan from the government by the members of the Scheduled Tribe, subject to the conditions laid down in the Rules. The procedure for grant of loan and consequent payment of compensation to the owners of land was a pre-condition for actual restoration thereof. When, thus, loans are raised and amount of compensation is paid to the transferees, in our opinion, only then the vested right for getting back possession of the lands gets accrued and not prior thereto. We say so because the 1975 Act itself provides for a statut....
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....t under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and c....
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.... carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable to Entry 18 in List II of the Seventh Schedule." It was observed: "...That apart, members of Scheduled Tribes i.e. tribals who are mostly aboriginals constitute a distinct class who need a special protection of the State. Further, the question as to how far and by what stages such laws are to be implemented involves a matter of policy and therefore beyond the domain of the courts. Secondly, the Act no doubt makes a distinction between a non-tribal transferee who had diverted the lands obtained by him under a transfer from a tribal during the period from April 1, 1957 to July 6, 1974 and had put such lands to non-agricultural purpose, and other non-tribal transferees who got into possession under transfers effected by tribals during the same period but continued to use the lands for agricultural purposes. There is no question of any differential treatment between two....
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....ze the situation instead of reversing the injustice and restoring the status quo ante. The provisions merely command that if a land holder voluntarily and on his own volition is desirous of alienating the land, he may do so only in favour of a "tribal". It would be adding insult to injury to impose such a disability only on the tribals (the victims of oppression and exploitation themselves) and discriminate against them in this regard whilst leaving the "non- tribals" to thrive on the fruits of their exploitation at the cost of "tribals". The "non-tribal" economic exploiters cannot be installed on the pedestal of immunity and accorded a privileged treatment by permitting them to transfer the lands and structures, if any, raised on such lands, to "non-tribals" and make profits at the cost of the tribals. It would not only tantamount to perpetuating the exploitation and injustice, it would tantamount to placing premium on the exploitation and injustice perpetrated by the non-tribals. Thus it would be the height of unreasonableness to impose the disability only on the tribals whilst leaving out the "non-tribals". It would also be counterproductive to do so." However, in K.T. Huchegow....
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....her the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, so far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title by adverse possession by completing the period of 12 years. When this Court said in its main judgment, in the case of Manchegowda v. State of Karnataka that in cases where granted lands had been transferred b....
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....er to the said question is that the State cannot shut its eyes to the ground realities. The Statement of Objects and Reasons would clearly show that the State did not take an action in a half-hearted manner. It consulted the tribal organizations. It is stated in its Counter Affidavit by the State before the High Court as under: "... Under the above circumstances, urgent steps were taken to have discussion with the various tribal organisations did not insist upon getting the very same land that had been alienated but would prefer to obtain an equal extent of land from the Government. Many organisations did not insist that the Act 31 of 1975 should be implemented in its original form. The Government also had serious discussions with various political parties and other concerned with tribal welfare. Discussions were also held with the present occupants of the alienated tribal lands. On the basis of the discussions and deliberations the Government thought it proper to introduce a suitable legislation which would adequately take care of the interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restri....
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....f the salient provisions of the two Acts: Act 31/75 - Came into force on 01.01.1982 Pages 135 - 142 2(b) "Immovable property" defined as including standing crops and trees. Act applies to such property 4.Transfer of any immovable property by a tribal to a non tribal without previous consent of competent authority after commencement of the Act shall be void. 5.Transfer of immovable property by Tribal to non tribal after 01.01.1960 shall be deemed to be invalid 6(1) The Tribal whose transfer is invalidated under Sections 4 and 5 shall be entitled to restoration of possession of the property. Sub Section (5) provide for a remedy of appeal to the aggrieved persons to the competent authority. 7. Govt. may take Suo-moto action for restoration 11. Where possession is restored to tribal under Section 6 he shall pay to the quantum transferee the consideration received as also the value of the improvement effected by the transferee as determined by the competent authority. 12. Government may advance loans to tribal for; payment of the amount u/s.11 to be repaid in half yearly or annual instalment and to be recovered as an arrear of land revenue if kept in arrears. 8.1 Similar to sec....
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....vit and the reasons for the enactment of Act 12 of 1999 have also been explained." Out of 4724 applications for restoration filed, 1475 applications involved transfer of less than 50 cents, 898 applications involved transfer of "extent between 50 cents and 1 acre", 904 applications covered cases of "transfer of extent between 1 and 2 acres and 1074 applications related to "transfer of extent between 2 acres and 5 acres and that only 373 applications involved cases of transfer of more than 5 acres or 2 hectares. The State has clearly brought on record the fact that it had conducted further studies wherefrom it came to learn that about 12,000 tribal families in the State did not possess any land of their own and 30,000 families did not have any house of their own. It is necessary, according to us, to bear in mind that the law postulates grant of compensation in a case where the right on a land is sought to be taken away. The 1975 Act postulates grant of compensation to the alienees, the amount wherefor was required to be determined by a competent authority. The amount of compensation so determined was to be paid by the members of the Scheduled Tribe to their vendees in respect whe....
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....their language, their culture and, thus, their own primitive way of life. [See Tribes of Kerala - Identity Crisis by Rayson K. Alex] The learned author states: "What is the criterion for the government to label a tribe as a "scheduled" tribe in the constitution? Has the government conducted a detailed study on the culture, traditions, their interrelationship with the place they live in, their socio- economic structures and judiciary before labeling them as "scheduled" tribes? The reason for this categorization can be attributed to their "supposed" backwardness and not their distinct identity from the dominant society of the country. Without taking into consideration aforementioned aspects of the culture of the tribes, to create "awareness" and to finally "develop" (in the narrow sense of the word) them, the tribes were forced to merge and condition themselves along the lines of the so-called "main-stream" Indian society. "When that was challenged, the ideologues of the aggressing society presented the theory of "integration" which in reality is the other side of the same coin. And now has come the final blow from the armory of the India state for the indigenous people of the count....
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.... 3. Persons thus removed shall be fully compensated for any resulting loss or injury. Article 13 1. Procedures for the transmission of rights of ownership and use of land which are established by the customs of the populations concerned shall be respected, within the framework of national laws and regulations, in so far as they satisfy the needs of these populations and do not hinder their economic and social development. 2. Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members." Thus, removal of the population, by way of an exceptional measure, is not ruled out. It is only subject to the condition that lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. We may, however, notice that this Convention has not been ratified by many countries in the Convention held in 1989. Those who have ratified the 1989 Convention are not bound by it. Furthermo....
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....and progress." For the purpose of going into the question with regard to the adjudication of the water dispute regarding the inter-State River Narmada and the river valley thereof in terms of the provisions of the inter-State Water Disputes Act, the award inter alia provided for relief and rehabilitation stating that no submergence of an area would take place unless the oustees are rehabilitated. This Court referred to Article 12 of the ILO Convention No. 107 holding: "58. The said article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury. The rehabilitation package contained in the award of the Tribunal as improved further by the State of Gujarat and the other States prima facie shows that the land required to be allotted to the tribals is likely to be equal, if not better than what they had owned." Noticing that construction of a dam is of utmost importance for development of the country as it plays an important role in providing irrigation for fo....
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....lsions. It is with this object in view that the R&R plans which are developed are meant to ensure that those who move must be better off in the new locations at government cost. In the present case, the R&R packages of the States, specially of Gujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets." As regards the question of necessity to balance the loss of forest because of activities carried on therein and construction of a dam, it was held: "242. The loss of forest because of any activity is undoubtedly harmful. Without going into the question as to whether the loss of forest due to river valley project because of submergence is negligible, compared to deforestation due to other reasons like cutting of trees for fuel, it is true that large dams cause submergence leading to loss of forest areas. But it cannot be ignored and it is important to note that these large dams also cause conversion of wasteland into agricultural land and make the area greener. Large dams can also become instruments in improving the environment, as has been the case in western Rajasthan, which transformed into a green area because of ....
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.... from the touchstone of Article 46 of the Constitution of India. For the aforementioned purpose, however, it may be of some interest to consider that the insistence of autonomy and the view of a section of people that tribals should be allowed to remain within their own habitat and not be allowed to mix with the outside world would depend upon the type of Scheduled Tribe category in question. Some of them are still living in jungle and are dependant on the products thereof. Some of them, on the other hand, have become a part of the mainstream. The difference between Scheduled Tribes of North-East and in some cases the Islands of Andaman and Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in mind. We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals an....
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....unconstitutional would result in automatic revival of an earlier Act which has been repealed? The High Court wherefor, as noticed hereinbefore, has struck down Section 22 of 1999 Act providing for repeal of 1975 Act. On the aforesaid premise it was held that the effect must be given to the right accrued under the 1975 Act. Sections 6(1) and 7 of the General Clauses Act, 1897, which are relevant for this purpose, read as under :- "6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or re....
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....evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed. We may in this connection notice certain decisions relied upon by Mr. Krishnan. A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an old rule by a new rule. It, therefore, ceased to exist and did not automatically get revived when new rule was held to be invalid. We are, however, dealing with a Legislative Act, validity whereof was determined in the light of constitutional provisions. In B.N. Tiwari v. Union of India and others, [ [1965] 2 SCR 421 ], this Court was again dealing with a statutory rule. It was held that the old rule did not revive opining :- "When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive." However, the legal position was made clear by a Three Judge bench of this Court in West U.P. Sugar Mills v. State of U.P., [ (2002) 2 SCC 645 ] whereupon ....
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.... to amend the existing law, in such a case the old law would revive and continue. But it is not the case here." Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC 376] is a case where the statute was modified and a different view was taken. But the principle laid down therein has been held to be inapplicable in Indian Express Newspapers v. Union of India, [ (1985) 1 SCC 641 ] "106. The rule in Mohd. Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State Legislature. In such a case the earlier law could be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively." Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the ....