Case: State Of Kerala  Vs. Peoples Union For Civil Liberties

20 of the U.P. General Clauses Act. In the absence of application of Section 6-C to the statutory instrument, including the statutory rule, which is the case before us, the contention of the respondents deserves to be rejected. Since Section 6-C of the U.P. General Clauses Act has not been applied to the statutory rule framed by the Government of Uttar Pradesh, the substituted rule after it became inoperative, the old Rule 49 would not revive." The aforementioned observations were, thus, made having regard to the fact that Section 6-C of the U.P. General Clauses Act had not been applied to the statutory Rules, which reads as under :- "6-C. Repeal or expiration of law-making textual amendments in other laws.--(1) Except as provided by sub-section (2), where any Uttar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substitution of any matter, the amending enactment is subsequently repealed, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. (2) Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re-enacted (with or without modifications) the amendment of text made thereby shall also cease to operate." However, the Bench opined:- "15. It would have been a different case where a subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here." Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC 376] is a case where the statute was modified and a different view was taken. But the principle laid down therein has been held to be inapplicable in Indian Express Newspapers v. Union of India, [ (1985) 1 SCC 641 ] "106. The rule in Mohd. Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State Legislature. In such a case the earlier law could be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively." 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 (supra), 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 Classification between agricultural and non-agricultural land is a valid one. It is, however, accepted that all forest areas comprise of the agricultural land. The State has admittedly no legislative competence to enact a legislation in exercise of its power of Entry No. 49, List II of the Seventh Schedule of the Constitution of India in relation to non-agricultural land. Such a power has been noticed hereinbefore. It exists only in terms of Entry 6, List III of the Seventh Schedule of the Constitution of India. While enacting the 1999 Act, the State could not have deprived the persons who hold non-agricultural land, having enacted the 1975 Act and, thus, could not have repealed a portion thereof by raising the following contention: "...If in a given situation a tribal possess non- agricultural land that only indicates that though the person is a tribal by birth he has come a long way from the way of Scheduled Tribe and has acquired the trappings of non tribals and thereafter has come to own immovable property other than the agricultural land. The exploitation of the tribals has studied would indicate (sic) has always taken place by deprivation of the agricultural land of the tribals..." 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 intraare, however, not concerned therewith. 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 fromour opinion, there exists a distinction between a statutory rule and a Legislative Act. The Legislature did not want a vacuum to be created. The 1999 Act was enacted repealing the 1975 Act only for certain purposes.Section 22(2) of the 1999 Act upheld certain actions taken under the 1975 Act as if they had been taken in terms thereof. The procedure for determining the rights and obligations of the parties by the Revenue Officers, under both the Acts, are more or less the same.We may notice Sections 19 and 22 of 1999 Act, which are relevant.It is, therefore, evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed.We may in this connection notice certain decisions relied upon by Mr. Krishnan.A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928 = [1963] Supp (2) SCR 435 ] 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 constitutionalof 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 aCourt 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. Dayanthey 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.