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TMI Blog1995 (9) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... to force of the said Regulations. We have heard learned counsel appearing for the respective contesting parties in this group of matters. Accordingly all these appeals are being disposed of by this common judgment. A few facts leading to these appeals may be noted at the outset. Facts leading to Civil Appeal no. 2909 of 1977 The appellant authorities, namely, Deputy Collector (Tribal Welfare) and the District Collector functioning in Srikakulam District in the State of Andhra Pradesh, have brought in challenge a decision of the Andhra Pradesh High Court allowing Writ Petition No. 4434 of 1975 moved by the respondents, praying for a writ of mandamus under Article 226 of the Constitution of India for quashing and setting aside the orders of the appellant authorities passed under the provisions of the Regulation. The respondents, writ petitioners before the High Court had purchased the land in their occupation on 19th June 1919 from a non-tribal named Pappala Appanna. After the promulgation of the Regulation in 1959 as amended by Regulation I of 1970 the competent authority being agent of the Government initiated proceedings against the respondents on the ground that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 through mutation. Respondent no.1 is a non-tribal. On the basis of the said protected tenancy created in favour of respondent no.1 by the tribal, respondent no.1 was declared owner of the said land on 1.1.1975 under Section 38 (E) of the Andhra Pradesh (Telengana Area) Tenancy Agricultural Act, 1950 and a certificate was issued under Section 38 (E) in his favour. The Special Deputy Collector (Tribal Welfare), Adilabad, issued a notice to the first respondent stating that the first respondent was in possession of the said land. The transfer of the said land in his favour contravened the provisions of Section 3(1) of the Regulation. He was, therefore, asked to show cause as to why he should not be ejected from the said land. Ultimately order of ejectment was passed against him by the Special Deputy Collector and the lands were ordered to be restored to respondent nos.2 to 4. Respondent no.1 unsuccessfully went in appeal where stay was refused. He thereafter filed a writ petition in the Andhra Pradesh High Court. A learned Single Judge of the High Court allowed the writ petition on 8.2.1984 holding that the provisions of the Regulation as extended to Adilabad District in ex-Tel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal possession of the lands and they were liable to restore the possession to the heirs of the original tribal, that is, respondent nos.4 and 5. This order was confirmed in appeal preferred by respondent nos. 1 to 3 to the District Collector, an agent to the State Government. It was thereafter that respondent nos.1 to 3 filed writ petition No. 4204 of 1977 seeking a writ of mandamus for quashing the orders of the Special Deputy Collector (Tribal Welfare) and the Appellate Collector. This writ petition and other companion matters were ultimately placed for disposal on reference by a Division Bench of the High Court before a Full Bench. The Full Bench of the High Court speaking through Ramachandra Rao, J., took the view that the provisions of the Regulation were not retrospective in nature and could not invalidate completed past transactions entered into in the scheduled area prior to the coming into force of Regulation I of 1959 as amended by Regulation II of 1963 which applied to Adilabad area from 1.12.1963. Writ Petition was accordingly allowed and the impugned orders were quashed. As noted earlier the said decision of the Full Bench is brought on the anvil of scrutiny by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to Civil Appeal No. 8424/95 arising from S.L.P.(C) No.2407 of 1986 In this appeal appellant is one T. Rajaiah who has brought in challenge the order passed by the Division Bench of the Andhra Pradesh High Court dismissing appellant's Writ Appeal No.406 of 1977 on 16.11.1985 and confirming the order of the learned Single Judge in Writ Petition No.2449 of 1977 dated 14th July 1977. The appellant purchased 17 acres of Survey No.28 situated at Dhanora Village in Asifabad Taluk of Adilabad District of Telengana area of Andhra Pradesh. He had purchased said land on 3.6.1951 from one Mesram Gangu who was a tribal. The third respondent herein being daughter of said Mesram Gangu filed an application under Section 3(1) of the Regulation for restoration of possession of the land on the ground that the appellant had purchased the land from a tribal and, therefore, transaction in his favour was null and void under the said provision. The Special Deputy Collector, Adilabad, after hearing the parties, by his order dated 4th December 1975 directed ejectment of appellant and restoration of land in favour of respondent no.3 herein and one Naithan Bai another daughter of Mesram Gangu. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Regulations in question are purely prospective in nature as there is no express provision made in these Regulations to make them retrospective from any back date, nor do the wording of these Regulations exhibit any necessary intendment about retrospectivity. Consequently the High Court was right in holding these Regulations purely prospective in nature and therefore concluding that they could not affect the vested and accrued rights in favour of the transferees pursuant to old transactions in their favour which had taken effect years prior to the coming into operation of these Regulations. Learned advocate appearing for the appellant in Civil Appeal arising out of S.L.P.(C) No.2407 of 1986 submitted that the High Court had patently erred in dismissing his writ petition only on the ground of alternative remedy and when the Regulation itself was not retrospective in character it could not affect the transaction in his favour entered into years back on 3.6.1951 even though the land was situated in Adilabad District which ultimately got covered by the Regulation. And that if this Court takes the view that the Regulation was prospective in nature and did not affect p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers under paragraph 5(2)(a) of Fifth Schedule of the Constitution the Governor enacted the Andhra Pradesh Scheduled Area Laws (Extension and Amendment) Regulations, 1963 whereby certain rules and regulations which already existed, and were in operation in the Andhra area of the State were extended to all parts of the State. The result was that the Andhra Pradesh Scheduled Areas Land Transfer Regulations came to be extended to the Telengana area of the State as well. Under the 1959 Regulation, any transfer of immovable property situated in the Agency Tracts, by a member of a Scheduled Tribe was declared null and void unless, made in favour of any other member of a Scheduled Tribe or a registered cooperative society composed solely of members of the Scheduled Tribes on with the previous consent in writing of the Agent. The said Regulation further empowered the Agent to decree ejectment against any person in possession of any immovable property, the transfer of which was made in contravention of its provisions and to restore it back to the transferor or his heirs. If the transferor or his heirs were not willing to take the property or where their whereabouts were not known, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh Regulation No.1 of 1970 inserts sub-section (4) in Section 3 whereby `transfer' has been defined to include a sale in execution of a decree including a benami transaction. The only species of transfer which has been excluded from the operation of the regulation is partition or devolution by succession. Provision has been made for the ejectment of persons who came into possession of such lands as a result of such transfers and for the restoration of land to the original transferor or his heirs. By Regulation 1 of 1971 Section 3-A was introduced whereby a mortgage without possession in favour of a Bank or institution approved by the Government was permitted subject to certain conditions. The Governor further framed a regulation to amend the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, being A.P. Regulation No.I of 1978 which came into force with effect from October 24, 1978. Regulation No.I of 1978 inserted sections 3-B and 6-A. Section 3-B prohibited registration of documents of transfer while sections 6-A and 6-B respectively provided for punishment for acquiring any immovable property after a decree for ejectment was passed. The punishment is to the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge on such property or a contract relating to such property in respect of such mortgage, lease sale, gift, exchange or other dealing'. Then follows Section 3(1)(a) which is material for our present purpose. It is as under: 3.(1)(a) - Notwithstanding any thing contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of a Schedule Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the A.P. Cooperative Societies Act, 1964, which is composed solely of members of the Scheduled Tribes. It may be noted that the words `whether or not such person is a member of a Scheduled Tribe' as found in Section 3(1)(a) were inserted by Regulation I of 1970 meaning thereby prior to the amending Regulation coming into force Section 3(1)(a) hit transfers of immovable property situated in agency tracts by only a member of a scheduled tribe and if such transfer was made by a non-tribal such transaction was outside the sweep of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tribal, a rebuttable presumption would arise under Section 3(1)(b) that such transferor was a member of Scheduled Tribe. This provision has nothing to do with any retrospective effect of Section 3(1)(a) itself nor does it even remotely indicate that because of the rule of evidence enacted in Section 3(1)(b), even prior completed transfers would also be covered by the sweep of Section 3(1)(a). Next Mrs. Amareshwari submitted that at least by necessary implication such retrospectivity can be culled out and for that purpose she invited our attention to Sections 9 and 10(1) of the Regulation. The said provisions read as under : 9. The Agency Tracts Interest and Land Transfer Act, 1917 (Madras Act I of 1917) is hereby repealed to the extent to which any of the provisions contained therein correspond, or are repugnant, to any of the provisions contained in this Regulation. 10. (1) The provisions contained in this Regulation shall not affect --- (a) Any transfer made or sale effected in execution of a decree before the commencement of the Agency Tracts Interest and Land Transfer Act, 1917 (Madras Act I of 1917), or (b) Any transfer made or sale effected in execution of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the constitutions of many American states, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes J said, retrospective legislation is `contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.' Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare. So it follows that the courts apply the general presumption that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.' The rule has, in fact, two aspects, for it, `involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.' ' In the case of Garikapati Veeraya v. N. Subbiah Choudhry (AIR 1937 SC 540 at p.553, para 25) Chief Justice S.R. Das speaking for this Court has made the following pertinent observations in this connection : The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.' Therefore, we agree with the submission of Mr Bobde, learned counsel for respondents, that the provisions of Section 3(1) of the Regulation are purely prospective in nature and do not affect past transactions of transfers effected between tribals and non-tribals or between non-tribals and non- tribals themselves in the Agency Tracts at a time when ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under such invalid transfers is sought to be dealt with for the purpose of eviction of transferees and restoration of possession to transfers, as the case may be, under Section 3(2)(a) of the Regulation. Consequently, the alternative submission of learned senior counsel for the authorities that even though transfer of immovable property in the Agency tracts may not be hit by Section 3(1)(a) still possession under such transfers could be restored to the original transferor under Section 3(2)(a), cannot be countenanced. Section 3(2)(a) is a corollary to Section 3(1)(a) and cannot have any independent role to play. Nor can it cover any area which is not encompassed by the sweep of Section 3(1)(a). In this connection Mrs. Amareshwari, learned senior counsel also invited our attention to two decisions of this Court. Mrs. Amareshwari, learned senior counsel for the appellant authorities invited our attention to a Constitution Bench judgment of this Court in Rao Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh (1953 SCR 1188). In that case the Constitution Bench of this Court speaking through Jagannadhadas J., had to consider whether prohibition of Article 20 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective. It is difficult to appreciate how this judgment can be of any avail to learned senior counsel for the appellant authorities, because the appellant in that case continued in Government service and at that time the new rule reducing the age of superannuation came into force his superannuation was governed by the new rule reducing the age of superannuation from 58 to 55 years. There was no question of any retrospective effect of the said rule. But the new rule clearly covered the then existing service conditions of Government servants who were still in service. Section 3(1) of the Regulation cannot be supported on the ratio of that judgment to nullify vested rights under past completed transactions. As we have already discussed earlier, Section 3(1)(a) read with Section 3(2)(a) of the Regulation seeks to hit only those transfers of lands in Agency tracts which take place after the advent of Section 3(1)(a) of the Regulation. Possessions under transfers which are beyond the sweep of Section 3(1)(a) cannot be said to have continued under any invalid transfers as envisaged by Section 3(1)(a). Such possessions obtained under the then existing old and valid transfers would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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