2009 (7) TMI 1302 - SC - Indian Laws

Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis- -vis a subsequent legislation altering or modifying the right of the beneficiaries under the former Act, inter alia - Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged - The State of Kerala enacted the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 ( the 1975 Act') with the object of providing restriction on transfer of land by Members of Scheduled Tribes in the State of Kerala and for restoration of possession of lands alienated by such members and for matters connected therewith. The said Act received the assent of the President of India. It was included in the Ninth Schedule of the Constitution of India, being item No.150, by the Constitutional 40th Amendment Act. It was published in the Kerala Gazette Extraordinary on 14th November, 1975. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. 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. Indisputably the Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 ( the 1999 Act'), which inter alia deals with transfer and alienation of agricultural lands. HELD THAT - We have noticed hereinbefore that the Division Bench of the High Court has upheld the legislative competence of the Legislature of the State of Kerala. We, therefore, really at pains to understand as to how the doctrine of Colourable Legislation' could be invoked by the learned Judge of the High Court. The Doctrine of Colourable Legislation is directly connected with the legislative competence of the State. Whereas the 1975 Act was enacted 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. We have pointed out here to before that the Doctrine of Colourable legislation is strictly confined to the question of legislative competence of the State Legislature to enact a statute. Once it was opined by the High Court that having regard to Entry 51, List II of the Seventh Schedule of the Constitution of India, the Legislature of the State of Kerala had the requisite legislative competence to enact the 1999 Act, that should have been held to be the end of the matter. The High Court could not have, in our respectful opinion, entered into the said question through a side- door so as to hold that the transgression of the limitations of constitutional power may be disguised, covert or indirect. The High Court, in our opinion, again with utmost respect, has committed a fundamental error in failing to keep a distinction in mind in regard to the power of a law making authority which is of a qualified character and the power granted to a legislative authority which is absolutely without any limitation and restriction, being plenary in character. 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 - The 1975 Act dealt with both agricultural and non-agricultural lands. Transfer of land comes within the purview of Entry 6, List III of the Seventh Schedule of the Constitution of India. There exists a Parliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the purpose of amendment of the Act and not for enacting a separate statute which came within the purview of a different entry and a different List. It is furthermore well-known that Article 254 of the Constitution of India would be attracted only in a case where two statutes are enacted under the Concurrent List, viz., one by the State Legislature and the other by the Parliament of India, and not in any other case. VESTED RIGHT VIS-@-VIS ARTICLE 14 - No territory in the State of Kerala has been declared as Scheduled Area within the meaning of Article 244 read with the Fifth Schedule of the Constitution of India. A distinction, thus, must be borne in mind in regard to the enactments which deal with tribal areas and which do not. If a law (e.g. Scheduled Area Regulation Act) deals with the tribal areas, the same amends provisions of the other Acts including the Limitation Act, 1963. If a person is in possession of a land, which he had obtained by reason of a valid transaction as it then was, which was subsequently sought to be invalidated, he would ordinarily receive protection by reason of doctrine of prescription provided for under the Limitation Act, by reason whereof if he has been in possession thereof for a period of more than 12 years, he would have acquired an indefeasible right thereto despite the fact that the transaction has been invalidated by a later Act. It was so held in Manchegowda 1984 (4) TMI 313 - SUPREME COURT . 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. In a case involving members of the Scheduled Tribe living in Scheduled Area the period of limitation can be extended, but it is not permissible in respect of an area which has not been declared to be a Scheduled Area. When a person acquires an indefeasible right, he can be deprived therefrom only by taking recourse to the doctrine of Eminent Domain. If a person is sought to be deprived of an indefeasible right acquired by him, he should be paid an amount of compensation. In a case of this nature, therefore, where an amount of compensation has not actually been tendered, the vendees of the land could not be deprived of their right to be dispossessed. In that view of the matter, a distinction must be made between a case where an amount of compensation has been paid and in a case where it has not been. If a vested right has not been taken away, the question of applicability of Article 14 of the Constitution of India would not arise. The High Court, however, proceeded to apply Article 14 of the Constitution of India on the premise that the provisions of the 1999 Act clearly seek to destroy the right conferred on Scheduled Area by Act 31 of 1975. The approach of the High Court being not correct, the same cannot be sustained. REASON FOR AMENDMENT - On the basis of the discussions and deliberations the Government thought it proper to introduce a suitable legislation which would adequately take care of the interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restriction on transfer by and Restoration of Land to the Scheduled Tribes Act, 1999 was introduced in the State Assembly and the same was unanimously passed by the Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999. While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was for the elected representatives of the people to determine as to whether by reason of the provisions of the 1999 Act the members of the Scheduled Tribe would face dislocation or that it would impinge on their culture connected with their lands. BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-S 1975 ACT - The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are concerned. The 1975 Act came into force with retrospective effect from 1.01.1982. But, as noticed hereinbefore, the Rules were framed only on 18.10.1986. Act 12 of 1999, however, came into force on 20.04.1999 but was given a retrospective effect and retroactive operation from 24.01.1986. Broadly, speaking, the provisions of the 1999 Act are more beneficial to the members of the Scheduled Tribe. For determining the said question, we must take a holistic view of the matter. However, we are not oblivious of the fact that restoration in respect of non-agricultural land and to the extent of 2 acres are not contemplated by the 1999 Act. We are also not oblivious of the fact that, it would appear, on the basis of the statistics furnished by the learned Additional Advocate General before the High Court, to which we have referred to heretobefore itself that a large number of members of the Scheduled Tribe would be deprived of the benefit of restoration of their own lands constituted in forest areas. 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 whereof he was to take loan from the State. The amount of loan taken was, thus, required to be repaid. The 1999 Act, however, provides for a grant which need not be repaid. The members of the Scheduled Tribe were further to get one acre of land from the State although they might have transferred even 5 or 10 cents of land. In the case of a transfer made upto two acres, he is to be allotted two acres of land by the State. Whether such land is available with the State Government or not is a different question, which we intend to deal with separately. The statute also contemplates building of houses for the members of the Scheduled Tribes. It provides that the land to the extent of one acre also be provided to the landless tribals. It contemplates constitution of a rehabilitation fund. The 1999 Act, therefore, if given a holistic view, is more beneficial to the members of the Scheduled Tribe than the 1975 Act. If the State contemplated a legislative policy for grant of more benefits to a vast section of people, taking care of not only restoration of land but those who have not transferred any land at all or otherwise landless, the statute by no stretch of imagination can be treated to be an arbitrary and an unreasonable one. ARTICLE 21 ISSUE - right of tribals to be rehabilitated in their own habitat - We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intra vires. NON-AVAILABILITY OF THE LAND - Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law. 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 - We may in this connection notice certain decisions relied upon by Mr. Krishnan. A.T.B. Mehtab Majid Co. v. State of Madras 1962 (11) TMI 24 - SUPREME COURT , 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, 1964 (12) TMI 40 - SUPREME COURT , 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. Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. In Southern Petrochemical Industries 2007 (5) TMI 591 - SUPREME COURT , the subsequent Act did not contain the words unless a different intention appears . It was held that the later Act was not different from the earlier Act. This Court is required to assume that the Legislature did so deliberately. In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan. AGRICULTURAL AND NON-AGRICULTURAL LAND - Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act.

Summary

Issues Involved:
1. Effect of a writ of mandamus issued by a High Court directing the implementation of an enactment vis-`a-vis a subsequent legislation altering or modifying the right of the beneficiaries under the former Act.
2. Constitutional validity of the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999.
3. Legislative competence and the doctrine of colorable legislation.
4. Presidential assent and its necessity for the 1999 Act.
5. Vested rights and their protection under Article 14 of the Constitution.
6. Beneficial nature of the 1999 Act vis-`a-vis the 1975 Act.
7. Article 21 and the right to life and liberty of tribals.
8. Non-availability of land for allotment to tribals.
9. Effect of invalidating the 1999 Act and consequently reviving the 1975 Act.
10. Classification between agricultural and non-agricultural land.

Detailed Analysis:

1. Effect of a Writ of Mandamus:
The Supreme Court noted that the writ of mandamus issued by the High Court directed the State to implement the provisions of the 1975 Act. However, the Court clarified that this did not mean that the High Court had issued a writ of mandamus directly conferring rights upon the parties. The mandamus was for the implementation of the Act, and the subsequent 1999 Act did not nullify this directive. The Court distinguished between a mandamus conferring rights and one directing the implementation of an Act.

2. Constitutional Validity of the 1999 Act:
The Kerala High Court had declared certain provisions of the 1999 Act as ultra vires, holding them to be arbitrary and discriminatory, thus violating Article 14 of the Constitution. The Supreme Court, however, found that the 1999 Act was enacted within the legislative competence of the State under Entry 18, List II of the Seventh Schedule of the Constitution. The Court held that the 1999 Act was not a colorable legislation and was validly enacted to address the issues faced by the tribals.

3. Legislative Competence and Doctrine of Colorable Legislation:
The Supreme Court held that the doctrine of colorable legislation did not apply as the State Legislature had the requisite legislative competence under Entry 18, List II. The Court emphasized that legislative competence is the primary consideration, and the motives of the legislature are irrelevant.

4. Presidential Assent:
The Court held that Presidential assent was not necessary for the 1999 Act as it fell within the purview of Entry 18, List II, which deals with agricultural land. The Court clarified that Article 254 of the Constitution is attracted only when there is a conflict between a State law and a Central law under the Concurrent List, which was not the case here.

5. Vested Rights and Article 14:
The Supreme Court noted that the right of restoration under the 1975 Act was statutory and not a vested right. The Court held that the 1999 Act did not violate Article 14 as it provided a more beneficial scheme for the tribals, including grants and land allotments, which were not repayable.

6. Beneficial Nature of the 1999 Act:
The Court found that the 1999 Act was more beneficial compared to the 1975 Act. It provided for grants, land allotments, and the establishment of a rehabilitation fund for tribals. The Act aimed to address the ground realities and the changing societal conditions, ensuring a holistic approach to tribal welfare.

7. Article 21 and Right to Life and Liberty:
The Court held that Article 21, which deals with the right to life and liberty, does not encompass an absolute right for tribals to be rehabilitated in their original habitat. The Court emphasized that the State's legislative policy aimed at providing better living conditions and opportunities for the tribals, which aligned with the broader objectives of Article 21.

8. Non-Availability of Land:
The Supreme Court directed the State to fulfill its legislative promise of providing land to the tribals. The Court emphasized that the State must ensure that the land allotted is suitable for agricultural purposes and must take necessary steps, including acquisition proceedings, to make the land available.

9. Effect of Invalidating the 1999 Act:
The Court held that invalidating the 1999 Act would not automatically revive the 1975 Act. The Court emphasized that the repeal of a statute is a matter of substance and not mere form. The 1999 Act contained a repeal and saving clause that upheld certain actions taken under the 1975 Act, ensuring continuity.

10. Classification Between Agricultural and Non-Agricultural Land:
The Court upheld the classification between agricultural and non-agricultural land as valid. It noted that the State had no legislative competence to enact laws concerning non-agricultural land under Entry 18, List II. The Court held that the 1975 Act would continue to apply to non-agricultural land, ensuring that the rights of the holders of such land are protected.

In conclusion, the Supreme Court allowed the appeals in part, upholding the validity of the 1999 Act while ensuring that the rights of tribals and non-tribals are balanced. The Court directed the State to take necessary steps to fulfill its legislative promises and ensure the welfare of the tribal community.