TaxTMI 
TaxTMI 
2009 (7) TMI 1302
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....toration of possession of lands alienated by such members and for matters connected therewith. The said Act received the assent of the President of India. It was included in the Ninth Schedule of the Constitution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. RULES UNDER THE SAID ACT 3. Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986. PROCEEDINGS 4. Members of the Scheduled Tribes filed applications for restoration of their lands in the year 1988 in terms of the provisions of the 1975 Act and the 1986 Rules. As the said Act was not implemented in letter and spirit, one Dr. Nallathampy Thera filed a writ petition which was marked as O.P. No.8879 of 1988 praying inter alia for issuance of a Writ of Mandamus compelling the St....
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....yanad, Idukki and Kottayam is unusually large. The Revenue Divisional Officers of these Districts are directed in particular to dispose of all the applications within the extended time." Applications for restoration of lands which were pending were disposed of pursuant to the said directions. Appeals were filed in a few cases but in most of them the orders directing restoration of lands became final. Strangely however, no actual restoration of land was effected. Another application was filed by the writ petitioner on 1st March, 1996 complaining about non-implementation of the said order. The learned Additional Advocate General once again gave an assurance that the order of the authorities under the 1975 Act would be implemented. On or about 28th March, 1996 the High Court directed :- "The learned Additional Advocate General assures the court that all out efforts will be made to dispose of all the pending applications within the time stipulated by this court and further that wherever there has been final orders passed, actual restoration will also be formal orders are necessary today. Post on 31.5.1996." (emphasis supplied)" Further affidavits were filed by the ....
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....f Lands and Restoration of Alienated Lands)Amendment Act, 1996, there is no justification for this court extending the order to stay granted earlier. The interim stay granted earlier is vacated. 2. The learned Single Judge, while disposing of C.M.P. No. 28950 of 1995 in O.P. 8879 of 1988, was pleased to grant time till 30.9.1996 for reporting compliance with direction No.1 in the order. The time was extended from time to time for compliance with the directions till the order of stay was granted. Now that the order of stay having been vacated, we grant six months time to the State for carrying out the direction contained in the order of the learned single judge dated 13th August 1996, passed in C.M.P. No. 28950 of 1995, without prejudice to the right of the Government in considering the various aspects of the matter to bring forward suitable legislation with suitable changes, if they so desire." (emphasis added) On or about 23rd November, 1998 an application for initiating proceedings under the Contempt of Courts Act, 1971 was filed against the State and its officers on the premise that orders of the High Court had not been complied with. A notice was issued therein. A peti....
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....he State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 (for short `the 1999 Act'), which inter alia deals with transfer and alienation of agricultural lands. Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged by filing two writ petitions; one marked as O.P. No.25332 of 1999 filed by Niyamvedi, respondent No.1 in Civil Appeal No.105 of 2001 and another O.P. No.26499 of 1999 by Peoples Union for Civil Liberties, Kerala State Unit, respondent No.1 in Civil Appeal No.104 of 2001. In the aforesaid writ petitions counter-affidavits were filed on behalf of the Union of India supporting the stand of the tribes. Malayora Karshaka Federation (appellant before us in C.A. No.899 of 2001) was impleaded as a party therein. By reason of the impugned judgment and order dated 24th August, 2000, the High Court declared the aforesaid provisions as ultra vires. FINDINGS OF THE HIGH COURT 6. The High Court, while acknowledging, the legislative intent of the State of Kerala, opined that it was colourable in nature as by reas....
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.... Kerala against the common judgment and order dated 24th August, 2000 passed by a Division Bench of the Kerala High Court in O.P. Nos. 25332 and 26499 of 1999 filed by Niyamavedi and Peoples Union for Civil Liberties, Kerala State Unit striking down the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the 1999 Act. Civil Appeal No.899 of 2001 has been filed by Malayora Karshaka Federation Kerala Meenangadi (respondent No.7 before the High Court in O.P. No.25332 of 1999) against the aforesaid order dated 24th August, 2000. Civil Appeal No.7079 of 2001 has been filed by M. Mohan Kumar, Chief Secretary, Government of Kerala against the order dated 4th December, 2000 passed by a Division Bench of the High Court in C.C.C. No. 542 of 1986 whereby the Court directed the appellant to appear before it for framing charges against him in not complying with the final direction issued by the Court on 18th December, 1999. CONTENTIONS 8. Mr. T.L. Viswanath Iyer, learned senior counsel and Mr.Dayan Kishnan, Advocate, appearing on behalf of the appellants would submit :- (i) The High Court committed a manifest error in holding that the 1999 Act suffers from th....
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....hu [(2000) 6 SCC 1]. (x) In any event, a declaration by a Superior Court that a subsequent statute is ultra vires would not wipe off the earlier statute automatically. (xi) The purchasers of land having acquired the properties in 1950s must be held to have acquired an indefeasible right over the same and thus the 1975 Act even to that extent was not applicable. Mr. Rajinder Sachar, learned senior counsel appearing on behalf of respondents in C.A. Nos. 104-105 of 2001, on the other hand, would contend:- (i) The 1999 Act being in the teeth of the mandamus issued by the High Court has rightly been held to be unconstitutional in view of the fact that nothing has been brought on record to show that the 1999 Act was enacted by the legislature despite knowledge that the directions issued by the High Court had attained finality. (ii) The 1975 Act having conferred a right of restoration on the Members of the Scheduled Tribes, both in respect of agricultural and non-agricultural lands, the provisions of 1999 Act and in particular Section 6 thereof having confined its operation only to agricultural land and that too with retrospective effect from 2....
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....n of their land by reason of the provisions of the 1975 Act, there was no reason as to why the original land would not be restored to them. The 1975 ACT 9. The 1975 Act was enacted by the State in terms of Entry 6 of List III of Seventh Schedule of the Constitution of India. Section 2 contains interpretation clauses defining the terms specified therein. Section 2(b) defines `immovable property' to include standing crops and trees but does not include growing grass. `Scheduled tribe' has been defined in Section 2(e) to mean any of the Scheduled Tribes relating to the State as specified in the Constitution (Scheduled Tribes) Order, 1950. Section 2(g) defines `transfer' as under :- " `transfer' , in relation to immovable property, means an act by which immovable property, is conveyed to any documentary or oral transaction, whether by way of mortgage with or without possession, lease, sale, gift or exchange, or in any other manner, not being a testamentary disposition; and includes a charge, `vilapanayam', `unduruthi', contract relating to immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment....
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....f such property. (2) Any person entitled to be restored to the possession or enjoyment of any immovable property under sub-section (1) or any other person on his behalf may make an application, either orally or in writing to the Revenue Divisional Officer within a period of one year from the date of commencement of this Act or such further period as may be specified by Government by notification in the Gazette - (a) for restoration of possession, or enjoyment, as the case may be, of such property, if such transfer had been made; before the date of commencement of this Act. (b) for restoration of possession or enjoyment, as the case may be, of such property and for the prosecution of the person who has procured such transfer, if such transfer was made on or after the date of commencement of this Act." Section 11 provides for liability to pay amount. Section 12 provides for advancement of loan by the Government for payment of the amount on such terms and conditions as has been laid down under sub-sections (2) and (3) thereof. The Act also prescribed offences and provided for penalties etc. Section 22 contains the ru....
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....) of Section 5 or the transferee thereof has been made eligible for the retention of said land under sub-section (2) of Section 5, shall be entitled to restoration of equal extent of land by way of allotment from the Government: Provided that where the extent of the land so allotted in respect of which there is eligibility for restoration of rights, is less than forty ares, Government shall allot the rest of the land required to make the total extent equal to forty ares (One acre)." Section 8 providing for liability to pay amount reads :- "8. Liability to pay amount.- (1) Notwithstanding anything contained in any other law for the time being in force, where the possession or enjoyment of any land is restored to a member of a Scheduled Tribe under this Act, an amount equal to the aggregate of the actual amount of consideration received by such member at the time of the transfer and an amount determined by the competent authority for improvements, if any, made after the transfer and before such restoration shall be paid by him to the person from whom possession or enjoyment, as the case may be, was restored, in accordance with the rules made under this Act: ....
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....It, having regard to its inclusion in the Ninth Schedule of the Constitution of India by Constitution 40th Amendment Ac, 1976 read with Article 31B which precludes an attack to the provisions of such an enactment on the ground that it violates any provisions of Part III of the Constitution of India, the validity thereof was upheld by a leaned Single Judge of the Kerala High Court in Bhavani v. State of Kerala, [1989 (1) KLT (Short Note Case No.58) at 37]. We may also notice that Jagannadha Rao, C.J. (as His Lordship then was) in Fr. Thomas Kubukkat v. Union of India, [ 1994 (2) KLT 25 ] also upheld the provisions of Section 1(3) of 1975 Act stating the said provision to be conditional legislation and not a delegated legislation. The Constitutional validity of statutes enacted for the benefit of the members of Scheduled Tribe by some other State although not identical has been upheld by this Court in Manchegowda and others v. State of Karnataka and others, [(1984) 3 SCC 301], Lingappa v. State of Maharashtra, [(1985) 1 SCC 479]; P. Rama Reddy v. State of A.P. [ (1988) 3 SCC 433 ] and Samtha v. State of Andhra Pradesh, [ (1997) 8 SCC 191 ]. These decisions have been rendered on....
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.... by the learned Judge of the High Court. The doctrine of `Colourable Legislation" is directly connected with the legislative competence of the State. Whereas the 1975 Act was enacted in terms of Entry 6 List III of the Seventh Schedule of the Constitution of India providing for transfer of lands; the 1999 Act was enacted in terms of Entry 18 List II thereof. It reads as under :- "18. Land, that is to say, right in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land ; land improvement and agricultural loans; colonization." The 1999 Act, thus, having confined itself to `agricultural land', indisputably the State Legislature only has the requisite legislative competence therefor. It is one thing to say that an enactment suffers from vice of colourable legislation on the premise that it does not have legislative competence but it is another thing to say that only because the Act was amended purporting to nullify an earlier Act (in the words of the High Court), the same by itself would attract the said doctrine. For invoking the doctrine of `Colourable Legislation' the le....
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....e of the legislature is irrelevant to castigate an Act as a colourable device. The interdict on public mischief and the insurance of consumer interests against likely, albeit, unwitting or "ex abundanti cautela" excesses in the working of a statute are not merely an ancillary power but surely a necessary obligation of a social welfare state. One potent prohibitory process for this consummation is to penalize the trader by casting a no-fault or absolute liability to "cough up" to the State the total "unjust" takings snapped up and retained by him "by way of tax" where tax is not so due from him, apart from other punitive impositions to deter and to sober the merchants whose arts of dealing with customers may include "many a little makes a mickle'. If these steps in reasoning have the necessary nexus with the power to tax under Entry 54 List II, it passes one's comprehension how the impugned legislation can be denounced as exceeding legislative competence or as a "colourable device" or as "supplementary, not complementary'." [See also Dharam Dutt and others v. Union of India, [(2004) 1 SCC 712]." The principles of determining the constitutionality of statute h....
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....the transgression of the limitations of constitutional power may be disguised, covert or indirect. The High Court, in our opinion, again with utmost respect, has committed a fundamental error in failing to keep a distinction in mind in regard to the power of a law making authority which is of a qualified character and the power granted to a legislative authority which is absolutely without any limitation and restriction, being plenary in character. A statute in view of the decision of this Court in Gujarat Ambuja Cements Ltd. (supra), in the event of it being held within the ambit of the legislative competence of the State, could be declared ultra vires only on the premise that it is violative of the provisions of Part III of the Constitution of India or any other provisions but not on the ground of colourable exercise of power or mala fide on the part of the legislature. The object, purpose or design referred to by the High Court should be taken into consideration for the purpose of examining its constitutionality on the touchstone of the provisions of Part III of the Constitution of India and not otherwise. In that view of the matter, the High Court committed a serious erro....
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.... but also Part IV and IVA thereof. The rights conferred upon the class of persons including the protected class, in terms of 1975 Act, were statutory in nature. They cannot be categorized as plainly constitutional rights. It is one thing to say that some rights are constitutional in nature/origin being part of the expansive regime of Article 21, but, it would not be correct to raise the same to the exalted status of constitutional rights. A right which primarily flows from a statute, cannot claim its constitutional pedigree to become a constitutional threshold, against which constitutionality of a statute can be tested. It is trite that a right which may be conferred by a statute can also be taken away by another. It is also a trite law that the State is entitled to change its legislative policy having regard to the ground realities and changing societal condition. In fact, the legislature is expected to take steps for enacting a new statute or amending the same so as to keep pace with the changing societal condition as well as taking into consideration the development of law, both domestic and international. The High Court, in our opinion, furthermore committed a serious ....
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....Nalla Thampy Thera filed O.P. No.8879 of 1988 for direction upon the State and its officers to implement the provisions of the 1975 Act. The learned Additional Advocate General appearing for the State gave an undertaking to the effect that "utmost steps would be taken for the disposal of the applications and that the Act would be enforced in all its rigour", on the basis whereof the Original Petition was allowed on 15th October, 1993 directing the State to give directions to the Authorities under the Act to dispose of the applications pending before them within six months of that date. As the State had taken extension of time by an order dated 13th August, 1996, a learned Single Judge, inter alia, directed the Revenue Divisional Officers to cause delivery of the properties covered by orders for restoration against which no appeals were pending and in which no compensation was payable, forthwith and in any event within six weeks from that date. A writ appeal was preferred thereagainst and an interim order of stay was passed on 11th October, 1996. The matter was referred to a Full Bench. We have noticed heretobefore the order dated 25th November, 1998. We have also noticed t....
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.... which set at naught the effect of the judgment of the Calcutta High Court or the binding character of the writ of mandamus issued against the Life Insurance Corporation. This contention of the petitioners requires serious consideration and we are inclined to accept it. 1. It is significant to note that there was no reference to the judgment of the Calcutta High Court in the Statement of Objects and Reasons, nor any non obstante clause referring to a judgment of a Court in Section 3 of the impugned Act. The attention of Parliament does not appear to have been drawn to the fact that the Calcutta High Court has already issued a writ of mandamus commanding the Life Insurance Corporation to pay the amount of bonus for the year April 1, 1975 to March 31, 1976. It appears that unfortunately the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement insofar as they relate to payment of annual cash bonus to Class III and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect from April 1,....
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....supra) has been followed in P. Venugopal v. Union of India, [ (2008) 5 SCC 1 ], wherein it was opined :- "As in Mohan Pathak case (para 8), as quoted hereinabove, in the instant case also Parliament does not seem to have been apprised about the pendency of the proceedings before the Delhi High Court and this Court and declaration made and directions issued by the Delhi High Court at different stages. In the impugned amendment, there is no non obstante clause. The impugned amendment introducing the proviso, therefore, cannot be treated to be a validating Act." A distinction must be made between issuance of writ of mandamus conferring right upon a person or class of persons and the one directing implementation of the Act. However, in this case while the learned Single Judge of the High Court issued a direction that the applications filed by the members of the Scheduled Tribes should be determined by the Revenue Authorities in terms of the provisions of the 1975 Act; the same, in our opinion, did not mean that the High Court itself had issued a writ of mandamus directing restoration of the lands in question. As in most of the cases members of the Scheduled Tribes have n....
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....m the observations made by Bhagwati, J. per majority, it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, the observation of Chief Justice Beg is to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But it does not mean that the learned Chief Justice intended to lay down the law that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court." Madan Mohan Pathak (supra), thus, stood explained in Indian Aluminium Co. v. State of Kerala (supra) to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Yet again, in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India, [(2003) 5 SCC 23], explaining Madan Mohan Pathak, it has been held :- "26.....
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.... which it is given is so altered that the said decision would not have been given in the changed circumstances." The reason is not far to seek. The Legislature can not over-rule a judgment but it can remove the basis on which the judgment has been rendered. The Act was implemented both in respect of those who had two acres of land and those who had more. The 1999 Act removes the basis for passing of the judgments so far as the applications for restoration filed by Members of the Scheduled Tribes in regard to their lands which was less than 2 hectares is concerned. It provides that the term `land' would mean `only agricultural land' and the application for restoration shall lie only in case where the extent of the land exceed two hectares. (See Section 2(b) and Section 5 of 1999 Act). Admittedly, the 1999 Act was made effective retrospectively from 24th day of January, 1986. It contains a Repeal and Savings clause. In that view of the matter, in our opinion, it was not necessary to term the statute as a validating statute containing a non-obstante clause. It is difficult to conceive, having regard to the orders issued by the Full Bench, that the Legislature....
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....r, were invalidated by Section 5 of the 1975 Act. The consequence of rendition of such transactions as invalid was to restore the lands back to possession of the tribals wherefor certain procedural requirements were to be complied with. The 1975 Act, however, was only brought into force in 1986, that too with retrospective effect from 1982. In the meanwhile, many purchasers again acquired prescriptive rights. It was furthermore made effective only when the Rules were framed in 1986. The right of restoration was of two kinds, one, in respect of agricultural land and the other in regard to non-agricultural land. We intend to deal with them separately. Indisputably, despite the 1975 Act having been brought in force and the Rules having been framed for the effective implementation thereof, the State and the Revenue Officers took no steps for implementation therefor for a long time. The process started only when a writ of mandamus was issued by the High Court. For its implementation, the substance of the proceedings has been noticed by us heretobefore. The 1975 Act and the 1986 Rules provided for several stages. The procedure laid down in the 1986 Rules consists of filing of applicat....
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....e the fact that the transaction has been invalidated by a later Act. It was so held in Manchegowda (supra). Therein, a distinction was made between a defeasible right and an indefeasible right and this Court was concerned with a transaction which was voidable in nature. It is, however, not a case where a transfer has been made in contravention of the terms of the grant or any law, regulation or rule governing such grant which could be legally avoided or possession thereof could be recovered through process of law. Therein, this Court clearly held: "24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the provisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 become applicable only when granted lands are transferred in breach of the condition relating to prohibition on transfer of such granted lands. Granted lands transferred before the commencement of the Act and not in contravention of proh....
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....ecial forms of contracts, but not including contracts relating to agricultural lands." The words "other than agricultural land" in Entry 6 and the words "but not including contracts relating to agricultural land" in Entry 7 in List III have the effect of delimiting the legislative power of the Union to make a law with respect to transfers and alienations of agricultural lands or with respect to contracts in relation thereto. The power to legislate cannot be denied to the State on the ground that the provisions of Sections 3(1) and 4 which provide for annulment of transfers by tribals incidentally trench upon the existing law, namely, the Transfer of Property Act, 1882 or a law made by Parliament viz. the Specific Relief Act, 1963. The power of the State Legislature to make a law with respect to transfer and alienation of agricultural land under Entry 18 in List II carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable ....
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....eason of the Scheduled Area (Part `A' States) Order, 1950. By reason of the power conferred on the Governor of the State by Para 5(2) of the Fifth Schedule, the regulations named as A.P. Scheduled Areas Land Transfer Regulation, 1959 were made. In the aforementioned backdrop, it was opined: "19...The community cannot shut its eyes to the fact that the competition between the "tribals" and the "non-tribals" partakes of the character of a race between a handicapped one-legged person and an able-bodied two-legged person. True, transfer by "non-tribals" to "non-tribals" would not diminish the pool. It would maintain status quo. But is it sufficient or fair enough to freeze the exploitative deprivation of the "tribals" and thereby legalize and perpetuate the past wrong instead of effacing the same? As a matter of fact it would be unjust, unfair and highly unreasonable merely to freeze the situation instead of reversing the injustice and restoring the status quo ante. The provisions merely command that if a land holder voluntarily and on his own volition is desirous of alienating the land, he may do so only in favour of a "tribal". It would be adding insult to injury to impo....
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....nguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950. 9. There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara Rajayalakshmi v. State of Karnataka said that the period of limitation, which has to be taken into account for the purpose of determining, whether the title has been perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Sched....
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....possessed. In that view of the matter, a distinction must be made between a case where an amount of compensation has been paid and in a case where it has not been. If a vested right has not been taken away, the question of applicability of Article 14 of the Constitution of India would not arise. The High Court, however, proceeded to apply Article 14 of the Constitution of India on the premise that the provisions of the 1999 Act clearly seek to destroy the right conferred on Scheduled Area by Act 31 of 1975. The approach of the High Court being not correct, the same cannot be sustained. REASON FOR AMENDMENT 16. This brings us to the question as to whether the 1999 Act is invalid inter alia because the State was apprehensive that the assignees may offer organized resistance for implementation of the 1975 Act and the State wanted to avert a conflict between the tribals and the non-tribals. The short answer to the said question is that the State cannot shut its eyes to the ground realities. The Statement of Objects and Reasons would clearly show that the State did not take an action in a half-hearted manner. It consulted the tribal organizations. It is stated in its Counter Af....
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....settled principle of law that the superior court in exercise of their power of judicial review of legislation would not ordinarily determine the merit of the legislation by entering into a broad question as to whether materials placed before the Legislature were sufficient for bringing out the legislation in question or not. Such inquisitorial inquiry on the part of the court, in our opinion, is beyond the province of the court. BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT 17. The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are concerned. The 1975 Act came into force with retrospective effect from 1.01.1982. But, as noticed hereinbefore, the Rules were framed only on 18.10.1986. Act 12 of 1999, however, came into force on 20.04.1999 but was given a retrospective effect and retroactive operation from 24.01.1986. We heretobelow may notice a comparative chart of the salient provisions of the two Acts: Act 31/75 - Came into force on 01.01.1982 Pages 135 - 142 2(b) "Immovable property" defined as including standing crops and trees. Act applies to such property 4.Transfer of any immovable property by ....
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.... "It is submitted that the Government found that Act 31 of 1975 would not really serve the purpose of ameliorating the problems of the scheduled tribes and might instead lead to law and order situation in various parts of the State. After a comprehensive study of the matter the Government passed Act 12 of 1999. The allegation that the intention of Act 12 of 1999 is other than protection of the rights of schedule tribes is incorrect and denied. A reading of all the provisions of the Act 12 of 1999 would make it clear that the legislature has kept the over all interests of the tribals and all the people of the State is general while enacting Act 12 of 1999. It is submitted that no right conferred by Act 31 of 1975 has been taken away by Act 12 of 1999. The allegation that Act 12 of 1999 is meant to protect the right of tribals is incorrect and is denied. It is submitted that the various provisions of Act 12 of 1999 had already been delineated elsewhere in the counter affidavit and the reasons for the enactment of Act 12 of 1999 have also been explained." Out of 4724 applications for restoration filed, 1475 applications involved transfer of less than 50 cents, 898 applications in....
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.... habitat is the question? If the answer is to be rendered in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore, a distinction must be borne between a right of rehabilitation required to be provided when the land of the members of the Scheduled Tribe are acquired vis-`-vis a prohibition imposed upon the State from doing so at all. The question must be considered from another angle. The Scheduled Tribes are not in an agency area or Scheduled Area. The literacy rate of the tribals of Kerala is 57% which is much more than the national average. Most of the tribal children have elementary education. In the schools and colleges of Kerala, Malayalam, Tamil or English is taught. It has been noticed by various writers that the tribal teachers have not been interacting with the students in the tribal terms and, thus, gradually the tribal students have lost respect for their language and begun to disregard their language, their culture and, thus, their own primitive way of life. [See Tribes of Kerala - Identity Crisis by Rayson K. Alex] The learned author states: "What is the criterion for the gove....
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....ntained following clauses: "Article 11 The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised. Article 12 1. The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations. 2. When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees. 3. Persons thus removed shall be fully compensated for any resulting loss or injury. Article 13 1. Procedures for the transmission of ri....
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....s voted in favour of United Nations declaration on the rights of indigenous people which affirms various rights to autonomy that are inherent in the tribal peoples of the world. This declaration, however, is not binding. This Court furthermore in Narmada Bachao Andolan v. Union of India and Others [(2000) 10 SCC 664] while considering the validity of acquisition of lands by the State of Madhya Pradesh for a project known as Sardar Sarovar Project (SSP) by constructing a dam on river Narmada as a result whereof the residence of tribals in various States, viz., Madhya Pradesh, Gujarat, Maharashtra and Rajasthan were affected, opined as under: "62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress." For the purpose of going into the question with regard to the adjudication of t....
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....e requirement of relief and rehabilitation of PAFs in the case of Sardar Sarovar Project was considered by the Narmada Water Disputes Tribunal and the decision and final order of the Tribunal given in 1979 contains detailed directions in regard to acquisition of land and properties, provision for land, house plots and civic amenities for the resettlement and rehabilitation of the affected families. The resettlement policy has thus emerged and developed along with the Sardar Sarovar Project." This Court opined that where two views are permissible, the court ordinarily would not sit in appeal over a policy decision adopted by the government. Regarding displacement of people on proposed project, it was held: "...It is not fair that tribals and the people in undeveloped villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of lifestyle. Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it, either through their own efforts due to information exchange or due to outside compulsions. It is with this object in view that the R&R plans which ar....
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....only be decided by a Bench of five Judges. In Samatha case, it is a Bench of three Hon'ble Judges who by majority of 2:1, interpreted the Fifth Schedule of the Constitution. However, what is important to note here is, as already observed hereinabove, that the provisions of the Madhya Pradesh Land Revenue Code, 1959 and Section 165, in particular, are not in pari materia with the aforesaid Section 3 of the Andhra Pradesh Regulation." Furthermore, the cut-off date in terms of the 1975 Act was 1.01.1960. Any transaction which had taken place between 1960 and 1975 and thereafter had been declared invalid. Admittedly, even after the provisions thereof having been given full effect, the members of the Scheduled Tribe had not been put in possession of their own land for decades. Furthermore, we have noticed hereinbefore that the members of the Scheduled Tribe are educated and we can safely presume that most of them are serving various institutions in the State of Kerala and/ or in other parts of India. Indisputably, the question of restoration of land should be considered having regard to their exploitation and rendering them homeless from the touchstone of Article 46 of the ....
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....ide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law. We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of Scheduled Tribe. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months from date. EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT 20. Whether striking down of an enactment as unconstitutional would re....
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....y the Revenue Officers, under both the Acts, are more or less the same. We may notice Sections 19 and 22 of 1999 Act, which are relevant. They read :- "19. Saving of other laws. - The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force regulating any of the matters dealt with in this Act, except to the extent provided in this Act." "22. Repeal and saving.- (1) The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) is hereby repealed. (2) Notwithstanding the repeal of the said Act, all orders issued by the competent authority or the Revenue Divisional Officer, so far as they are not inconsistent with the provisions of this Act shall be deemed to have been made under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. Every proceedings pending before a Court on a complaint under Section 14 of the said Act shall be deemed as a proceeding under the corresponding provisions of this Act and shall be continued ....
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....tar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substitution of any matter, the amending enactment is subsequently repealed, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. (2) Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re- enacted (with or without modifications) the amendment of text made thereby shall also cease to operate." However, the Bench opined:- "15. It would have been a different case where a subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subse....