9911796707
TMI Blog1984 (12) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. Facts in these two appeals are more or less similar. In Civil Appeal No. 4384 of 1984, the appellant Lingappa Pochanna Appelwar had by a registered sale-deed dated November 30, 1965 purchased agricultural land bearing Survey No. 27 having an area of 20 acres 39 gunthas from Raju Meshram, father of respondent No. 2 Sonerao Raju Meyhram who being a gond was a tribal within the meaning of s.2(1)(j) of the Act for a consideration of ₹ 1300 with the prior permission of the Collector as required by s.47 of the Hyderabad Tenancy Agricultural Lands Act, 1950 and was placed in possession thereof. Suo motu proceedings were started by the Sub-Divisional Officer, Rajura in District Chandrapur under s.3(1) of the Act for restoration of the lands to respondent No. 2. The Sub-Divisional officer initiated an inquiry, summoned the parties and recorded their statements. By his order dated February 19, 1977 he held that it was admitted by the appellant that his transferor Raju Meshram was a gond and therefore a tribal under s.2(1)(j) of the Act, that no improvements had been made by him on the land and that there were no encumbrances thereon. He therefore held that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which enjoins that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Tribes and shall protect them from social injustice and all forms of exploitation Although there is legislation undertaken by different States placing restrictions on transfer of lands by members of Scheduled Castes and Tribes in pursuance of the declared policy of the State of safeguarding, protecting and improving the conditions or weaker sections of the society by providing that any such transfer except in terms of the provisions of the different Acts shall be null and void, the State of Maharashtra has gone a step further for annulment of such transfers by members of Scheduled Tribes and for restoration of lands to them by enacting the Maharashtra Restroration of Lands to Scheduled Tribes Act, 1974. The impugned Act has been placed in the Ninth Schedule of the Constitution and is thereof immune under Art. 31B from any challenge on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by Art. 14, Art 19 or Art. 31 of the Constitution. Before dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two categories, namely: (1) occupancy holdings had been transferred to persons not belonging to Scheduled Tribes by the Collector or the Sub Divisional officer on the ground that occupancy holdings were allowed to be transferred to persons not belonging to Scheduled Tribes. This was in clear violation of the provisions of s. 3 (2) of the Maharashtra Land Revenue Code. (2) The lands were first allowed to be leased out to persons not belonging to Scheduled Tribes by the Collector or the Sub-Divisional officer on the ground that members of the Scheduled Tribes holding such lands were unable to cultivate them personally due to sickness or otherwise. Later on, taking advantage of the provisions of the Bombay Tenancy Agricultural Lands Act, 1948, such transferees applied to the Tenancy Courts for purchase of the holdings on the ground that they were in cultivating possession on April 1, 1957 i.e. On the tillers' day The Committee accordingly recommended that necessary legislation be undertaken for restoration of lands to such Scheduled Tribes which had been transferred whether by way of sale, gift, mortgage or any other disposition made or had gone into the possession of members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om such tribal, or for recovering any other amount due from him as an arrear of land revenue, or otherwise under the Maharashtra Cooperative Societies Act, 1960 or any other law for the time being in force but does not include a transfer of land falling under the provisions of sub-s. (3) of s. 36 of the Code and the terms 'tribal-transferor' and 'non- tribal transferee' have to be construed accordingly. The word 'tribal' as defined in s. 2 (1) (j) means a person belonging to a Scheduled Tribe within the meaning of the Explanation to s. 36 of the Code and includes his successors-in-interest. The expression 'relevant tenancy law' is defined in s. 2 (1) (g) to mean (1) the Bombay A Tenancy Agricultural Lands (Vidarbha Region) Act, 1958, in relation to the Vidarbha region of the State (2) the Hyderabad Tenancy Agricultural Lands Act, 1950, in relation to the Hyderabad region of the State, and (3) the Bombay Tenancy Agricultural Lands Act, 1948, in relation to the rest of the State. Sub-s. (1) of s. 3 of the Act provides as follows: 3. (1) Notwithstanding anything contained in any other law for the time being in force or any judgment, decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibal as the Collector may under sub-s. (4) determine. Sub-s. (4) casts a duty on the Collector to determine in the prescribed manner the value of the improvements, if any, where lands are restored under cl. (i) or cl. (ii) of sub-s. (1), and the manner of its payment. Clauses (a) to (g) thereof contain detailed provisions as to the manner of payment. By cl. (a) it is provided that where lands are restored under cl. (i) of sub-s. (1) i. e. where the land of a tribal exchanged with a non-tribal is restored to such tribal, if the value of improvements made by a tribal is found to be more, the difference shall be paid by the non- tribal to the tribal and vice versa. By cl. (b) it is next provided that where the land of a tribal transferred to a non-tribal is restored to him, the amount payable by the tribal shall be an amount equal to 48 times the assessment of the land or the amount of consideration paid by the non- tribal for acquisition of the land, whichever is less plus the value of the improvements, if any, made by the non- tribal to be determined by the Collector. Explanation to cls. (a) and (b) lays down that the Collector in determining the value of any improvements under cl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has not been put to any non-agricultural use on or before the 6th day of July 1974, then the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu at any time or on an application by the Tribal made within three years from the commencement of this Act and after making such inquiry as he thinks fit, direct that the land shall, subject to the provisions of sub-s. (4) of s. 3, be restored to the Tribal free from all encumbrances and that the amount of purchase price of a proportionate part thereof, if any, paid by such non-tribal-transferee in respect of such land in accordance with the relevant tenancy law shall be refunded to A such non-Tribal-transferee either in lump sum or in such annual instalments not exceeding twelve (with simple interest at 4.5% per annum) as the Collector may direct. The provisions of clauses (d),(e), (f) and (g) of sub-s. (4) of s. 3 shall, so far as may be, apply in relation to the recovery of the amount from the Tribal and payment thereof to the non-Tribal- transferee and the persons claiming encumbrances, if any . It also contains a proviso which is in terms identical with the proviso to sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to Art. 275 specially provides for the payment out of the Consolidated Fund of India as grants-in-aid of the revenues of a State such capital and recurring sums as may be necessary to meet the cost of development schemes for the promotion of the welfare of the Scheduled Tribes in the State. Art. 330 provides for reservation in the House of the people for the Scheduled Tribes. Art. 332 provides for the reservation of seat for the Scheduled Tribes in the Legislative Assemblies of the States. Art. 335 specially directs that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of the State. Art. 343 (2) empowers the President to specify the tribes or tribal communities or parts of them which shall be deemed to be Scheduled Tribes for the purpose of the Constitution. Arts. 244 and 244A of the Constitution make special provision for the administration and control of the scheduled areas and the scheduled tribes in any State by the application of the Fifth and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the concept of distributive justice. Our Constitution permits and even directs the State to administer what may be termed 'distributive justice'. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transaction between unequals in society. Law should be used as an instruments of distributive justice to achieve a fair division of wealth among the members of society based upon the principle: 'From each according to his capacity, to each according to his needs'. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by on to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of A contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer under the ordinary laws in various ways. The processes and forms of law were apparently followed. But the result has been devastating. As a result of such unequal transactions which were grossly unconscionable and unjust, the tribals lost their lands to non-tribals and were rendered landless. It is implicit in the nature of the legislation that the law regards such transactions as unconscionable and oppressive, and directs restoration of the property to the tribal transferor treating the transfer to be non-est. It is axiomatic that a contract is liable to be set aside due to inequality of bargaining power, if someone without independent advice, enters into a con- tract on terms which are very unfair or transfers property for a consideration which grossly inadequate when his bargaining power is previously impaired by reason of his own need or circumstances, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. .B. Bandyopadhyaya, Joint Secretary. Ministry of Labour, Government of India, and B. N. Yugandhar, Special Assistant to the Deputy Chairman, Planning Commission in their Report submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C.R. 828 .) the challenge was to the provisions of the Maharashtra Debt Relief Act, 1976. That Act did not prohibit the business of moneylending but it wiped out all debts due to moneylenders upto a certain date and obliged them to return to the debtors the securities obtained as a security for their debts. The Court held that the moneylending was not a trade or business, but if it was, the Act imposed reasonable restrictions on the business of moneylending with in the meaning of Art. 304 (b). The evil of money lending was not confined to isolated cases but was widespread as it affected a very large number of agricultural and rural debtors. Considerable material was placed before the High Court and this Court held A that the material so placed showed that moneylending can be looked upon as a pernicious activity. The material disclosed that previous legislative attempts to grant relief to the debtors had failed, either because resolute attempts were not made to enforce the law, or because of the illiteracy, ignorance and above all the need of the borrowers or because of the dishonesty of the moneylenders or by a combination of all these factors. The question before the Court theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered destitute upheld the validity of s.20 of the Act which provided for restoration of their immovable property sold in execution of any decree for recovery of a debt or sold under the provisions of the Revenue Recovery Act or sold in execution of any decree for arrears of rent etc. The Act did not deprive the purchaser of the property without payment of compensation but on the contrary it enjoined that the purchase money shall be refunded to him In the case where the decreeholder was the purchaser, the debtor was allowed to deposit one-half of the purchase money along with the application to the Court for restoration of possession and to repay the balance amount in 10 equal half-yearly instalments, together with interest thereon. As regards a stranger auction-purchaser the Court observed that he stood mere or less in the same position as the decreeholder cannot be heard to complain since he purchased the property as a distress sale and was therefore bound to restore the same to the agriculturist debtor. The law however treated him differently because he had nothing to do with the decree and was therefore enjoined to return the property to the agriculturist debtor on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to acquire, hold and dispose of property guaranteed under Art. 19 (1) (f) as there is denial of opportunity to the non-tribal transferees to be represented by a lawyer of their choice in proceedings initiated by the Collector suo motu or on an application by the tribal under s. 3 (1) or s. 4 of the Act. We are afraid, none of these contentions can prevail. The first and foremost contention Is that the provisions contained in ss. 3(1) and 4 of the Act which provide for annulment of transfer of lands by tribals to non-tribals effected during the period specified therein and for restoration of possession of such lands to them are beyond the legislative competence of the State Legislature under Entry 18 in List 11 of the Seventh Schedule. It is urged that the State has no competence to make a law under Entry 18 in List II which had the effect to unsettle the titles which had vested validly in the non-tribal transferees either by transfer inter-vivos or by the decree or order of a Court. It is contended that there is no Legislative competence of the State Legislature to enact a law of this kind which purports to direct A' to transfer the lands to 'B' for the only re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the State Government pointed out in its Report that the provisions of the Maharashtra Land Revenue Code, 1966 and the relevant tenancy laws had not been effective in giving protection to persons belonging to the Scheduled Tribes. It recommended inter alia that provision should be made for restoring possession to 'members of Scheduled Tribes the lands which had been duly transferred by them to other persons. There is always a presumption when there is a transfer between a tribal and a non-tribal that it is an unequal bargain. As regards the weak and the helpless, the law guards them with a special protective care. The Legislature therefore stepped in and reopened such transactions by directing that lands be restored to the tribal-transferors free from all encumbrances tribal on payment by them to the non-tribal transferees the amounts determined by the Collector under sub-s. (4) of s. 3 The restoration of the possession under ss.3 (1) and 4 does not involve any deprivation of the property in the sense that there is unsettling of title without consideration. It makes detailed provisions setting out the conditions subject to which a transfer of agricultural lands by a triba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Legislature being relatable to Entry 18 in List II of the Seventh Schedule. The remaining contentions are of little or no avail to the appellants. The impugned Act having been placed in the ninth Schedule of the Constitution, the submission that the provisions of ss. 3 (1) and 4 thereof are inconsistent with, or take away, or p abridge any of the fundamental rights conferred by Art. 14, Art. 19 (1) (f) or Art. 31 of the Constitution, must be rejected at the very threshold because it is protected from any such challenge under Art 31 B. Even otherwise, the remaining contentions cannot prevail. The contention that the adoption of the date April 1, 1957 as the date from which there is annulment of transfers under ss. 3 (1) and 4 was arbitrary and void as infring Art. 14, appears to be wholly misconceived. The adoption of the date April 1, 1957 in the definition of the term 'transfer' in s. 2 (1) (i) as the date for the provisions of ss. 3 (1) and 4 of the Act to operate is based on an intelligible or rational classification. It is permissible for the Legislature to make a classification on the basis of time for a law to operate. What is necessary is that there must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously could not have made a law for annulment of transfer of such lands by tribals under Entry 18 in List II as the lands having been diverted to agricultural purpose ceased to be agricultural lands. In the case of such non-agricultural Land, if the State Legislature made such law it would not be effective unless it was reserved for the assent of the President and received such assent. Equally futile is the argument that the definition of 'non-tribal transferee' contained in s.2(1)(1) offends against Art. 14 as it permits . an assignee of a non-tribal tranferee effected prior to March 15, 1971 to escape the consequence of annulment under s.3(1) or s.4 of the Act. The definition of non-tribal transferee' in s.2(1)(1) is an inclusive one. the expression non-tribal transferee' as defined includes his successore-in-interest; and if he or his successor had, on or after March 15, 1971, transferred land in favour of any person whether a tribal or a non- tribal, comes within the preview of the definition. The Legislature appointed March 15, 1971 with a view to give retrospective effect to the provisions of ss.3(1) and 4 of the Act as that was the date on which the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time being in force, no pleader shall be entitled to appear on behalf of any party in any proceedings under this Act before the Collector, the Commissioner or the Maharashtra Revenue Tribunal: Provided that, where a party is a minor or lunatic, his guardian may appear, and in the case of any other person under disability, his authorised agent may appear, in such proceedings. The contention that an advocate enrolled under the Advocates Act, 1961 has an absolute right to practice before all Courts and Tribunals can hardly be accepted. Such a right is no doubt conferred by s.30 of the Advocates Act. But unfortunately for the legal profession, s.30 has not been brought into force so far though the Act has been on the Statute Book for the last 22 years. There is very little that we can do in the matter and it is for the Bar to take it up elsewhere. A person enrolled as an advocate under the Advocate Act is not ipso facto entitled to a right of audience in all Courts unless s.30 of that Act is first brought into force. That is a matter which is still regulated by different statutes and the extent of the right to practice must depend on the terms of those statutes. The right of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
