State Of Kerala & Anr vs Peoples Union For Civil Liberties & Ors

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.

Relying on or on the basis of the said statement, O.P. No. 8879 of 1988 was disposed of by the High Court on 15th October, 1993, inter alia, calling upon the State to give directions to the Authorities under the 1975 Act to dispose off the applications pending before them within 6 months from the said date.

The State, however, did not comply with the said directions within the said time frame. Extensions of time were sought for complying with the said directions. By the said process, a period of two years lapsed.

Another application for extension of time was filed for implementation of the Act and the High Court granted six months' time but issued certain directions inter alia for the purpose of monitoring the progress of the implementation of the Act.

The said conditions are as under:-

Applications for restoration of lands which were pending were disposed of pursuant to the said directions. Appeals were filed in a few cases but in most of them the orders directing restoration of lands became final.

Strangely however, no actual restoration of land was effected. Another application was filed by the writ petitioner on 1st March, 1996 complaining about non-implementation of the said order.

An intra court appeal was preferred thereagainst. The matter was referred to a Full Bench. An order of stay was passed relying on or on the basis of a statement made before the Court that amendments to the 1975 Act were proposed to be made.

The Full Bench on 21st May, 1998 passed the following order:-

A petition was filed by the State for extension of the period by six months from 21st November, 1998. However, a statement was made before the Full Bench that a new Bill would be introduced before the Legislative Assembly in terms whereof a permanent solution to the problem of alienation of tribal lands which had taken place during the period from 1.1.1960 and 1.1.1986 shall be dealt with. The Full Bench, by its order dated 6th January, 1999, directed :-

3. In view of the above, the time already granted by this Court is hereby extended by three months from today. The State shall introduce the Bill in this session of the Assembly and complete all the other formalities within the time now granted. We make it clear that there will be no further extension of time. The State is directed to pay cost of this petition to Dr. Nalla Thampy Thera which is fixed at Rs.5000/-, by way of demand draft drawn in his name, within three weeks from today."

We, therefore, are of the opinion that Madan Mohan Pathak (supra) has no application to the present cases.

REASON FOR AMENDMENT

The ground realities are presumed to be known to the State and if anybody raises a contrary contention, it would be for him to bring on record sufficient materials to show so as to enable the court to arrive at a conclusion that the State's action was arbitrary.

4.Transfer of any immovable property by a tribal to a non tribal without previous consent of competent authority after commencement of the Act shall be void.

5.Transfer of immovable property by Tribal to non tribal after 01.01.1960 shall be deemed to be invalid 6(1) The Tribal whose transfer is invalidated under Sections 4 and 5 shall be entitled to restoration of possession of the property.

Sub Section (5) provide for a remedy of appeal to the aggrieved persons to the competent authority.

10. (1) Government shall assign land to landless tribal families not exceeding 40 Ares in extent in his own district within two years or extended time.

(2) If any family owns land below 40 Ares I extent Govt. to assign such extent of land as is necessary to make up 40 Ares.

11. Schedule Tribe rehabilitation and Welfare Fund to be constituted for construction of houses for tribal families and for other welfare measures.

Out of 4724 applications for restoration filed, 1475 applications involved transfer of less than 50 cents, 898 applications involved transfer of "extent between 50 cents and 1 acre", 904 applications covered cases of "transfer of extent between 1 and 2 acres and 1074 applications related to "transfer of extent between 2 acres and 5 acres and that only 373 applications involved cases of transfer of more than 5 acres or 2 hectares.

ARTICLE 21 ISSUE

For the purpose of going into the question with regard to the adjudication of the water dispute regarding the inter-State River Narmada and the river valley thereof in terms of the provisions of the inter-State Water Disputes Act, the award inter alia provided for relief and rehabilitation stating that no submergence of an area would take place unless the oustees are rehabilitated.

Indisputably, the question of restoration of land should be considered having regard to their exploitation and rendering them homeless from the touchstone of Article 46 of the Constitution of India. For the aforementioned purpose, however, it may be of some interest to consider that the insistence of autonomy and the view of a section of people that tribals should be allowed to remain within their own habitat and not be allowed to mix with the outside world would depend upon the type of Scheduled Tribe category in question. Some of them are still living in jungle and are dependant on the products thereof. Some of them, on the other hand, have become a part of the mainstream. The difference between Scheduled Tribes of North-East and in some cases the Islands of Andaman and Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in mind.

NON-AVAILABILITY OF THE LAND

EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT

7. Revival of repealed enactments -

This section applies also to all (Central Acts) made after the third day of January, 1968 and to all Regulations made on or after the fourteenth day of January, 1887."

It is, therefore, evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed.

We are, however, dealing with a Legislative Act, validity whereof was determined in the light of constitutional provisions.

enacted (with or without modifications) the amendment of text made thereby shall also cease to operate."

However, the Bench opined:-

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

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.

For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001 and 899 of 2001 are allowed in part to the extent mentioned above.

In view of our judgment in Civil Appeal Nos. 104-105 of 2001 and 899 of 2001, no orders are called for in Civil Appeal No.7079 of 2001. No costs