M. Mohan Kumar vs P. Nalla Thampy Thera & Anr

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 3 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. RULES UNDER THE SAID ACT Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 Act and were published in the Kerala Gazette Extraordinary on 18th October, 1986.

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:-

(iii) The Authorities under the Act, i.e., the Revenue Divisional Officers of the concerned Districts shall file affidavits before this court once in a month showing the progress achieved in the disposal of applications during that month. The first of these affidavit showing the progress-made until 31.12.1995 shall be filed before 15.1.1996. The next of the affidavits showing progress till 31.1.1996 shall be filed before 15.2.1996 and so on.

(iv) The State shall provide the necessary back up and support to the Revenue Divisional Officers to complete the work within the extended time now granted.

(vi) It is seen from the affidavit filed by the Government that the pendency of applications in the Districts of Palakkad, Wayanad, Idukki and Kottayam is unusually 6 large. The Revenue Divisional Officers of these Districts are directed in particular to dispose of all the applications within the extended time."

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 10 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 :-

As the State had taken extension of time by an order dated 13th August, 1996, a learned Single Judge, inter alia, directed the Revenue 45 Divisional Officers to cause delivery of the properties covered by orders for restoration against which no appeals were pending and in which no compensation was payable, forthwith and in any event within six weeks from that date.

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.

c) and which transfer has been validated by the provisions of Sec.5 above shall be entitled to allotment of equal extent of land by Government to the extent of 40 Ares.

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.

7. Revival of repealed enactments -

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.

However, the Bench opined:-

This Court is required to assume that the Legislature did so deliberately.

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 102 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 ....................................J. [ S.B. Sinha ] ..................................J. [ Dr. Mukundakam Sharma ] New Delhi;

July 21, 2009