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

The State of Kerala enacted the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Act No.31 of 1975) (for short `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.

Reasoning: 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.