Civil Appeal Nos
2299 2300 of 1972
From the Judgment and order dated the 2491971 of the Andhra Pradesh High Court in Writ Petition Nos 806  3161 of 1970
LN Sinha and section Madhusudan Rao for the Appellants
TS Krishnamurthi Iyer K Ram Kumar and K Ram Mohan for the Respondents
Subodh Markandaya and Mrs C Markandaya for the interveners
The Judgment of the Court was delivered by THAKKAR J
A challenge to the validity of a provision  in so far as it prohibits the transfer of any immovable property situated in the scheduled areas of Andhra Pradesh by a non tribal  in favour of another non tribal  having been repelled by the High Court upon 1
Section 31 of the Andhra Pradesh Scheduled
Areas Land Transfer Regulation 1959 as inserted by Regulation I of 1970
Reproduced at page 6 Footnote 3
446 testing on the touchstone of constitutionality the present appeals have been preferred by some of the unsuccessful original Writ Petitioners
Some others have intervened upon their application for leave to intervene having been granted by this Court
The appellants and the interveners have by and large reiterated 13 the same contentions before this Court in support of their plea that the impugned provision is unconstitutional as being violative of article 191f of the Constitution of India as it obtained at the material time till its repeal by the 44th Amendment in 19793
A short history of the legislation may be briefly traced to the extent considered necessary
In the Andhra Area there existed before the inauguration of the Constitution certain laws including the Agency Tracts Interest and Land Transfer Act 1917 which inter alia prohibited transfer of land in the Agency Tract areas except in favour of members of hill tribes conferring upon the persons belonging to the Scheduled Tribes certain benefits
After the Constitution of India came into force article 244 of the Constitution and the Fifth Schedule were made applicable to the administration of the scheduled areas
Para 6 of the Fifth Schedule empowered the President to notify the Scheduled areas in consultation with the Governor of the State
The scheduled areas in Andhra region of this State were notified by the President through the Scheduled Area Part A  States order 1950
Para 52 of the Fifth Schedule empowered the Governor of the State to make Regulations for the peace and good Government of the Schedule Areas
Accordingly the Governor made the AP Scheduled Areas Land Transfer Regulation 1959 Regulation I of 1959
This Regulation came into force with effect from 431959
Section 31 of this Regulation prohibited transfer of immovable properties situated in the scheduled areas from a member of scheduled tribes to non tribals without previous sanction of the State Government or subject to rules made in this behalf with the previous consent in writing of the Agent or of any prescribed officer
Similar laws designed to protect the tribals from exploitation were in operation in the Telengana area of the then State of Hyderabad
In exercise of powers under paragraph 52a 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 2
By a Certificate under article 133 la of the Constitution of India
With effect from June 20 1979
447 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 or with theprevious consent in writing of the Agent
The said Regulation further empowered the Agent to decree an 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 are not known the Agent was further empowered to order assignment or sale of the property to any other member of a Scheduled Tribe or a registered cooperative society composed solely of members of the Scheduled Tribes or otherwise dispose of it as if it was a property at the disposal of the State Government However as difficulties were experienced by the Government in implementing the ejectment procedures under the said Regulation inasmuch as it was not always easy for the concerned authority to ascertain the origin of the right under which the non tribal is claiming possession and whether the land now under the possession of a non tribal was previously acquired from a tribal or not the said 1959 Regulation was amended by the Andhra Pradesh Scheduled Areas Land Transfer Amendment Regulation 1970 with a view to remedy the said mischief
The amending Regulation of 1970 in order to facilitate effective enforcement of the said 1959 Regulations introduced interalia the following changes namely i A rule of presumption was introduced to the effect that unless the contrary is proved where a non tribal is in possession of land in the Scheduled areas he or his predecessors in interest shall be deemed to have acquired it through transfer from a tribal ii Transfers of land in Scheduled Areas in favour of non tribals shall be wholly prohibited in future iii Non tribals holding lands in the Scheduled Areas shall be prohibited from transferring their lands in favour of persons 448 other than tribals
Only partitions and devolution by succession of lands held by them shall be permitted and iv Where a tribal or non tribal is unable to sell his land to a tribal on reasonable terms it shall be open to him to surrender the land to Government who shall thereupon be obliged to acquire it on payment of appropriate compensation
Clause a of substituted section 313 rendered all the transfers made except those in favour of a tribal to be null and void
Clause b of sub section 1 of Section 3 raises a presumption that any immovable property in possession with a non tribal would be presumed to have been acquired by such person through a tribal
Clause c of sub section 1 of Section 3 provides for payment of compensation to the non tribal at the rate specified in Section 10 of Andhra Pradesh Ceiling on Agricultural Holdings Act 1961
The Andhra Pradesh Sec 3 1a Notwithstanding anything 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 Scheduled Tribe shall be absolutely null and void unless such transfer is made in favour of person who is a member of a Scheduled Tribe or a society registered or deemed to be registered under the Andhra Pradesh Co operative Societies Act 1964 Act 7 of 1964 which is composed solely of members of the Scheduled Tribes
b Until the contrary is proved any immovable property situated in the Agency tracts and in the possession of a person who is not a member of Scheduled Tribe
shall be presumed to have been acquired by person or his predecessor in possession through a transfer made to him by a member of a Scheduled Tribe
c Where a person intending to sell his land is not able to effect such sale by reason of the fact that no member of a Scheduled Tribe is willing to purchase the land or is willing to purchase the land on the terms offered by such person then such person may apply to the Agent the Agency Divisional officer or any other prescribed officer for the acquisition of such land by the State Government and the Agent
Agency Divisional officer or the prescribed officer as the case may be by order take over such land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holdings Act 1961 Act X of 1961 and such land shall thereupon vest in the State Government free from all encumbrances and shall be disposed of in favour of members of the Scheduled Tribes or a society registered or deemed to be registered under the Andhra Pradesh Co operative Societies Act 1964 Act 7 of 1964 composed solely of members of the Scheduled Tribes or in such other manner and subject to such conditions as may be prescribed 449 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 petition 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 AP Regulation No 1 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 6 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 extent of rigorous imprisonment of one year or fine of Rs2000 or both
Section 6 B makes such an offence cognizable
The appellants own lands and have immovable properties in the Scheduled areas of Andhra Pradesh and have been cultivating their lands for the past many years
Some of them have acquired these lands in the remote past and some in the recent past by purchase some from the tribals and some from the non tribals
By the amending Regulation which is now impugned all acquisitions of immovable property by transfer from tribals and non tribals alike are declared null and void
The appellants are all non tribals and are affected by this amending Regulation
Some of them belong to the Scheduled areas in the Telengana region and some of the Scheduled areas in the Andhra region
But they have a common grievance that the Regulation cuts at the root of their right to the immovable properties which have been in their possession for the past many years
The principal plea of the appellants before this Court is that in so far as the impugned provision seeks to control or restrict the right of transfer of immovable property by a non tribal  person it is void and that the High Court has erred in holding otherwise
Be it realized that the question whether or not the impugned regulation brought into force in 1970 has retrospective operation as contended by the State or whether it merely has a prospective operation as 450 held by the High Court does not fall for consideration in the present group of appeals
This question has been raised in another set of appeals which are awaiting decision before this Court
We therefore do not deal with this dimension of the issue in the present judgment and refrain from expressing any opinion on this question
It may also be mentioned that the thoroughly untenable plea unsuccessfully advanced before the High Court that the Government had exceeded the power conferred by para 52 of Schedule V of the Constitution was not exercised for the peace and good governance of the scheduled area has not been reiterated before this Court
This Court is therefore not required to deal with this fact which has been fully adequately and most satisfactorily dealt with by the High Court which unhesitatingly turned down the plea
The reasonableness or otherwise of the restrictions imposed by the impugned provision cannot be tested in void
The socio economic landscape in the backdrop of which the compulsion to legislate was occasioned needs to be painted to enable the Court to approach in a meaningful manner the problem posed by the challenge rooted in the submission that these restrictions are unreasonable from the perspective of Article 191 of the Constitution of India inasmuch as these are not essential for the protection of the interests of the Scheduled Tribes
To this end the following picture emerging from the additional counter filed by the State drawn from sources which have rightly been considered as authentic by the High Court deserves to be highlighted 1
Within the scheduled areas of both Telengana and Andhra Pradesh regions the land was entirely in occupation of different Tribal communities
The area was an inaccessible tract of land covered by forests and hills
These tribal communities were in occupation of lands and lived by shifting cultivation and gathering whatever produce that was available
The non tribals who arrived in these areas landed in the 19th Century in certain areas and the early 10th Century in certain other areas found the tribals who were in occupation of these lands an easy prey for the schemes of exploitation
The non tribals were lending money to the tribal communities and taking the land belonging to them as security though nothing was taken in writing from a tribal
The rates of interest charged ranged between 25 to 50 per cent and in certain cases even 100 per cent
The tribals who were tradi VINEET 451 tionally honest and who were simple in their thought and habits fell an easy prey to the schemes of the non tribals
None of these money lenders ever credited any amount paid by the tribals towards their debt and whatever entries were made in the books of the money lenders were implicitly believed by the tribals
The tribals were not aware that when produce was sold to the non tribals they were using a larger weight and a smaller weight was applied for selling outside goods to the tribals
The indebtedness of the tribal had taken the form of bonded labour in many cases
The debt could never be discharged by the tribals
The money lenders continued to be in occupation of most of the lands and the tribals became their serfs
The non tribals have also forcibly occupied some of the lands
The tribals were ignorant and they were not aware that they could go and report to the concerned authorities about the contravention of the Regulations protecting their rights
The non tribals have been taking full advantage of their ignorance and exploited them and are continuing to exploit them
There were several rebellious movements in the Scheduled areas against the oppression by the money lenders and rapacious landlords
Exploitation of Tribals was a cause of many disturbances such as Ramparebellion in East Godavari in about 1899
In comparatively recent times also in Adilabad district the tribals rebelled in 1941 as a result of alienation of land and forest reservation rules and even in 1967 68 most of the tribals fell an easy prey to some of the political leaders who promised that the lands in Scheduled areas would be restored to them and that the non tribals would be driven out
It is a known fact that these tribal communities joined hands with the so called revolutionaries and again there was an uprising in the tribal area against the non tribals which had started spreading to the plains areas also
The tribal communities which went into the grip of revolutionaries were not able to extricate themselves out of their grip
It is only after the tribals were promised by the Government that the land would be restored to them and the exploi 452 tation by non tribals would be checked and after arresting the several revolutionaries peace has prevailed in several parts of the scheduled areas
If the Scheduled Tribes were not put back in possession of the land and measures were not taken to prevent exploitation by non tribals peace would not have prevailed in the Scheduled Areas
It was observed by several committees that the non tribals were able to find ways and means to circumvent the provisions of Regulation I of 1959 by entering into benami trans actions and other clandestine transactions with unsophisticated tribals
It is absolutely necessary to create conditions for peace and maintain peace and prevent the new non tribals from settling down in the Scheduled area
If the alienations are permitted to the non tribals there is a danger of large scale exploitation by the new non tribal again with the result peace will be disturbed in that area
It is only with a view to maintain peace and to govern the area effectively Regulation I of 1970 was passed by the Governor
A non tribal who validly acquired the title will not be disturbed but he is not allowed to sell his land to a non tribal which will inevitably mean new entrants into this area
In a sample survey conducted in Chintapalli and Bhadra chalam it was found that the average size of holding per family is only 3 to 4 acres
But even this extent of land was either mortgaged or otherwise transferred in favour of non tribals and they are in possession of the lands
Unless new entrants into the Scheduled areas are prevented from settling down in the Scheduled areas by purchasing properties either from tribals or non tribals it is not possible to prevent the exploitation of the unsophisticated tribals
It is only with a view to enforce the valid provisions of Regulation I of 1959 the Regulation viz Regulation I of 1970 was made
It is in the interests of the tribals and for their protection Regulation I of 1970 was passed because without restricting or prohibiting the alienation of lands in the pos session of non tribals to non tribals the objectives cannot be achieved
453 What has emerged from the additional counter filed by the State in the High Court is buttressed by the contents of a treatise authored by a well known research scholar
The treatise is the culmination of laborious research carried out in respect of the very areas which form a part of the scheduled area of Andhra Pradesh in respect of which the impugned legislation has been enacted
It has been stated therein that more than 40 million Indians belong to tribal communities distinct from the great mass of the society
They are the aboriginal races from the Dravidian architects of ancient South Indian civilizations
The dramatic change in the peaceful co existence between the tribals on the one hand and the more dynamic section of the society occurred when improved communications opened up previously inaccessible tribal areas and rapid growth of the Indian population led to pressure on the land s resources
In the past forty years most of the tribal societies have come under attack by economically more advanced and politically more powerful ethnic groups who infiltrated into tribal regions in search of land and new economic possibilities
These population movements triggered a struggle for land in which aboriginal tribesmen were usually the losers and deprived of their ancestral land turned into impoverished Ianndless labourers
In this treatise the learned author has quoted the distressing forecast made by Nirad C Chaudhari in his book 3 wherein he has lamented In an industralized India the destruction of the aboriginal s life is as inevitable as the submergence of the Egyptian temples caused by the dams of the Nile 
As things are going there can be no grandeur in the primitive s end
It will not be even simple extinction which is not the worst of human destinies
It is to be feard that the aboriginal s last act will be squalid instead of being tragic
What will be seen with most regret will be not his disappearance but his enslavement and degradation
It cannot therefore be gain said that the tribals not only require to be preserved and protected in respect of their economic and educational interest but they also require to be immunized from social injustice and exploitation
The Founding Fathers of the Constitution of 1
Tribes of India The Struggle for Survival 1982 83 edition by Christoph von FurerHaimendorf
Inside of front flap
Inside of front flap
The Continent of Circe
454 India have in their wisdom and foresight taken cognizance of this vital aspect as is evidenced by the provisions embodied in Article 1541 and Article 462 of the Constitution of India
The constitutional mandate reflected in the aforesaid Articles has influenced this Court in no small measure in upholding the constitutionality of the impugned legislative provisions enacted with an eye on preserving and protecting the interest of the tribals in the lands in the tribal areas
Reference in this behalf may be made to Manchegowda and Ors
vs State of Karnataka wherein the focus was on provisions prohibiting transfers to non tribals  of lands granted to the tribals and on remedial measures for speedy restoration of such lands to the members of Scheduled Castes and Scheduled Tribes in cases where the lands had passed into the hands of the non tribals 
Reference may also be made to Lingappa Pochanna Appelwar vs State of Maharashtra whereby this Court has upheld the constitutionality of the provisions enacted essentially in order to secure restoration to the original tribal owners the lands which had gone out of their hands and passed into the hands of the non tribals 
The problem presented in the present appeals is somewhat different from the problems which have surfaced so far
It brings into focus the challenge to the validity of the provisions enacted with a view to prevent non tribals  along with tribals  from transferring lands including structures raised thereon in favour of non tribals  in the Scheduled areas
It is in this context that appellants who are non tribals  have mounted an assault on the constitutionality of the impugned provisions by recourse to the plea that these are violative of Article 191f of the Constitution of India
It is alleged that the impugned provisions impose unreasonable restrictions on the non tribal  holders of properties in the Scheduled areas
1 article 154Nothing in this article or in clause 2 of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
 2 Article 46 Promotion of educational and economic interests of Scheduled Castes Scheduled Tribes and other weaker Sections 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 the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation
 3 19843 SCC P 301 4
1985lSCC 479 455 The challenge rooted in Article 191f cannot survive after the repeal of the said Article with effect from June 20 1979 by virtue of the 44th Amendment
It cannot survive inasmuch as the doctrine of eclipse would come into play
All the same it needs to be examined as it is understood that numerous transactions have taken place during the interregnum
More so as the matter is of vital importance from the platform of the welfare of the tribals  whose welfare had exercised the minds of the Founding Fathers in shaping the Constitution as evidenced by Article 154 and Article 46 thereof
The question of questions then is whether the impugned provisions prohibiting not only tribals hut also non tribals  from transferring their lands and properties in the Scheduled areas to non tribals  are ultra vires Article 191f
The impugned provisions have been assailed on the ground of their alleged unreasonableness
In order to succeed in their challenge the appellants will have to identify the obnoxious components or factors of the impugned provisions
Two submissions have been urged in order to answer the question as to why  how  and in what manner  the impugned provisions are branded as unreasonable 1
The prohibition imposed on the tribals  restraining them from transferring lands and properties to non tribals  is understandable inasmuch as the objective is to ensure that the total extent of properties held by the tribals is not diminished
However there is no rational basis for restraining transfer of properties from non tribals  to non tribals  as such transfer does no more than substitute one non tribal  by another non tribal  and does not in any manner diminish the extent of properties held by the tribal 
The prohibition against transferring the properties to non tribals  being in absolute terms a non tribal  cannot even raise a loan on his properties even in the event of the non tribal  being under economic compulsion to do so
It is not possible to accede to any of the aforesaid submissions
As highlighted earlier originally all the lands in these tracks were owned by the tribals 
With the advent of the non tribals  in the late 19th Century and early 20th Century the lands changed hands from tribals  to non tribals 
This change of ownership was a result of exploitation arising 1 in the context of money lending operations and 2 in the context of dubious and unconscionable dealings in the 456 course of trade
The non tribals  had so often circumvented the legislation enacted in order to protect the tribals  by recourse to benami transactions and by recourse to dubious devices
The poor ignorant illiterate and unsophisticated tribals had succumbed to the wiles of the economically stronger and unscrupulous non tribals 
A legislation which in essence and substance aims at restoration to the tribals  of the lands which originally belonged to the tribals  but which passed into the hands of non tribals  in the aforesaid background certainly cannot be characterised as unreasonable
The scanning must be done through the objective lens of the Court representing the collective conscience of the community and not through the tinged lens of appellants whose economic interests may be prejudicially affected by the impugned provisions
In other words the Court examining the matter from the perspective of the Constitutional mandate armed with the criterion of objectivity and overall interest of the community at large must be satisfied that the restrictions are unreasonable
As a matter of fact it would be unreasonable and unfair to hold that the impugned provisions are unreasonable on this account
Surely it is not unreasonable to restore upto the tribals  what originally belonged to them out of which they were deprived as a result of exploitative invasion on the part of non tribals 
In the first place should lessons not be drawn from past experience to plug the loop holes and prevent future recourse to devices to flout the law 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 tribal 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 alienting the land he may do so only in a favour of a tribal 
It would be adding insult to injury to impose such a disability only on the tribals the victims of oppression and exploitation themselves and discriminate against them in this regard whilst leaving the non tribals  to thrive on the fruits of their exploitation at the cost of tribals 
The non tribal  economic exploiters cannot be installed on the pedestal of immunity and accorded a privileged treatment by permitting them to transfer the lands and structures if any raised on 457 such lands to non tribals  and make profits at the cost of the tribals
It would not only be tantamount to perpetuating the exploitation and injustice it would tantamount to placing premium on the exploitation and injustice perpetrated by the non tribals
Thus it would be the height of unreasonableness to impose the disability only on the tribals whilst leaving out the non tribals
It would also be counter productive to do so
It must also be emphasized that to freeze the pool of lands available to the tribals  at the present level is virtually to diminish the pool
There is no escape from this outcome because the realities of life being what they are with the population increase amongst the tribals remaining unfrozen increase in their population will automatically diminish the size of their pool if the same is frozen
No unreasonableness therefore is involved in making the prohibition against transfer to non tribals  applicable to both the tribal  as also to the non tribal  owners in the scheduled area
As a matter of fact it would have been unreasonable to do otherwise
In the absence of protection the economically stronger non tribals  would in course of time devour all the available lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have
It is precisely for this reason that the Architects of the Constitution have with farsight and foresight provided in paragraph 52 of Fifth Schedule that the Governor may make regulations inter alia prohibiting or restricting the transfer of land in the scheduled areas notwithstanding any provision embodied in the Constitution elsewhere
And as has emerged from the foregoing discussion it is unreasonable to restrict the prohibition against transfer to tribals 
It has to be made comprehensive enough to embrace the non tribals  as well
With the improvement in the economic conditions of the tribals  there would not be much difficulty in finding tribal  purchasers
Besides Section 31c thoughtfully provides even for the contingency of not being able to find a tribal  willing or prepared to purchase the property
This provision obliges the State Government to acquire the property on payment of compensation as provided therein
One can envisage that some hardship would be occasioned to the owners to lands located in the scheduled areas
But such hardship would operate equally on the tribals  as well as the non tribals 
Such hardship notwithstanding keeping in mind the larger perspective of the interest of the community in its entirety in the light of the foregoing discussion the restrictions cannot be condemned as unreasonable
More so if the factor that the original acquisition by non tribals  from tribals  was polluted by the sins of exploitation committed by the non tribals  is not ignored
458 The next submission is built on the premise that the impugned A provision does not permit the owner even to raise a loan on the security of the land owned by him
The submission overlooks the amendment introduced by Section 3A11 inserted by Regulation 1 of 1971
True this provision was introduced after a few months
But then in none of these appeals a grievance is voiced that any of the writ petitioners in fact wanted to raise a loan but could not do so during this time bracket of a few months
In any case the challenge can no longer survive with the introduction of Section 3A
Another argument which did not succeed in the High Court has been hopefully persisted with in the Court
The expression Land has been used in its restricted sense in paragraph 52a of Schedule V and therefore the impugned provisions prohibiting the transfer of lands along with structures thereon by employing the expression immovable property is not in accordance with law
Such is the argument
This argument is devoid of merit for two reasons Firstly there is no reason to believe that land  has not been employed in its legal sense
The expression land  in its legal sense is a comprehensive expression which is wide enough to include structures if any raised thereon
While this proposition hardly needs to be buttressed support can be sought from the following sources The Dictionary of English Law  LAND in its restrained sense means soil but in its legal acceptation it is a generic term comprehending every species of ground soil or earth whatsoever as meadows pastures woods moors waters marshes furze and heath it includes also houses mills castles and other buildings for with the conveyance of the land the structures upon it pass also
And besides an indefinite ex tent upwards it extends downwards to the globe s centre 1 3A1 Special provision in respect of mortgages without possession Notwithstanding anything contained in this Regulation or in any enactment rule or law inforce in the Agency tracts 1 any person whether or not such person is member of a Schedule Tribe may subject to the provisions of Clause 2 mortgage without possession any immovable property situated in the Agency tracts to any co operative Society including a land mortgage bank or to any bank or other financial institution approved by the State Government
2 1959 Edition Vol
p 1053 by Earl Jowitt
459 hence the maxim Cujus est solum ejus est usque ad caelum et ad inferos or more curtly expressed Cujus est solum A ejus est altum Co 
4a Words And Phrases Judicially Defined1 The word land  would be variously understood by different persons
To a farmer the word land  would not mean his farm buildings to a lawyer the word would include every thing that was upon the land fixed immovably upon it
Smith vs Richmond  per Lord Halsbury LC at p 448 The Law Lexicon2 The word land is a comprehensive term including standing trees buildings fences stones and waters as well as the earth we stand on
Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support
 D Secondly to interpret the expression land  in its narrow sense is to render the benevolent provisions impotent and ineffective
In that event the prohibition can be easily circumvented by just raising a farm house or a structure on the land
The impugned provisions were inserted by the Amending Regulation precisely to plug such loopholes and make the law really effective
The High Court was perfectly justified in repelling this meritless plea
It is therefore not possible to accede to this submission
Equally meritless in the submission that the presumption embodied in section 31b is unreasonable
The High Court has unhesitatingly negatived this plea
The High Court has reasoned With regard to the presumption which is impugned it is a rebuttable presumption and a rule of evidence
The non tribals who have acquired the lands and properties of the tribals could be reasonably expected to disclose their title to the properties
This also accords with the rule of evidence that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him 1
By Roland Burrows Vol
III 1y944 Edition p 206 2 
By P Ramanatha Aiyar Reprint Edition 1487
460 vide Section 106 of the Indian Evidence Act
The tribals are mostly ignorant persons and naturally suffer from in evitable handicaps in the matter of setting up or proving their rights to lands and property which they had lost
 The reasoning is impeccable and faultless
The plea must accordingly fail
The appeals must therefore fail and be dismissed
No costs
HSK Appeals dismissed


Summary:
The Caltex Acquisition of Shares of Caltex Refining India Ltd and of the Undertakings in India of Caltex India Ltd Act 17 of 1977
by Section 3 provides for the acquisition of shares of Caltex Oil Refinery India Ltd for short CORIL
Section 112 of the Act provides that subject to rules made in this behalf under section 23 every whole time officer or other employee of CORIL would on the day of acquisition continue to be an officer or other employee of CORIL on the same terms and conditions and with the same rights to pension gratuity and other matters as are admissible to him immediately before that day and shall continue to hold such office unless and until his employment under CORIL is duly terminated or until his remuneration and conditions of service are duly altered by that company
Consequent upon the taking over of the CORIL on December 301976 the Chairman of the Board of Directors of CORIL issued a circular dated 8th March 1978 to the effect that the perquisites admissible to the management staff of CORIL should be rationalised in the manner stated in the said circular
At this stage the undertaking of CORIL was transferred and vested in the Hindustan Petroleum Corporation Ltd the appellant in CA No 3214 of 1979
Respondent Nos 1 to 4 employees of CORIL in the said appeal filed a writ petition before the High Court challenging the legality and validity of the impugned PG NO 925 PG NO 926 circular on the ground inter alia that the employees had not been given any opportunity of being heard before altering to their prejudice the terms and conditions of service and therefore the impugned circular should be struck down as void being opposed to the principles of natural justice
The High Court accepted the aforesaid contention of the respondents and quashed the impugned circular
Hence this appeal by special leave
Civil Appeal 3212 of 1979 has been preferred by the respondents
Dismissing the appeals HELD 1
The High Court was perfectly justified in quashing the impugned circular
Even if any hearing was given to the employees of CORIL after the issuance of the impugned circular that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution
932A B 2i It is now a well established principle of law that there can he no deprivation or curtailment of any existing right advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard
Any arbitrary or whimsical exercise of power prejudicially affecting the existing condition of service of a government servant will offend against the provision of Article 14 of the Constitution930F G 2ii The post decisional opportunity of hearing does not subserve the rules of natural justice
The authority who embarks upon a post decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post decisional opportunity931A B KI Shephard  Ors
vs Union of India  Ors JT 1987 600 followed
In view of the reasons given in the above appeals the Court dismissed CA No 3518 of 1979
932C