# KHASI & JAINTIA HILLS v. SITIMON SAWIAN (Dua, !.)

- **Citation:** [1972] 1 S.C.R. 398
- **Court:** Supreme Court of India
- **Decided:** 1972
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khasi-jaintia-hills-v-sitimon-sawian-dua-5368
- **Pages:** 10

## Headnote

398
DISTRICT COUl'\ICIL OF UNITED KHASI & JAINTIA IDLLS
. & ORS;- ETC.
v.
MI~S SITIMON SA WIAN·ETC.
August -25, 1971
IS. M. SIKR!, C.J., G. K. MIT:rER, c. A. VAIDJALINGAM,
P. JAGANMOHAN l,lEDDY AND L D. DuA, JJ.]
Constitution of India 1950--Sixth
Schedu/e-,-Para 3(1)(a)-Power ·
cf District Counci( to rnake law with respect to "allot1nent, occupation or
.use, or the sett.jng apart of land"-!J includes power to 1nake laws w1th
respect to transfer of land-United Khasi..Jaintia Hills District (Transfer
of Land) Act, !953-Sect(on 3--Constitutio'nality of.
·
By virtue of the Sixth Schedule· tq the Constitution the United KhasiJaintia Hills District has been con,stituted~ into. an autonomous district
with a District Council.
Para 3(1) (a) of the Schedule
authorises
the
District Council to make laws ''with respect to'' "the allotment occupation
·Or use, or the setting apart, of land",
for the purpose;; 'mentioned therein.
Ibe District Council passed the United Khasi-Jaintia Hills District (Transfer of Land) Act, 1953 section 3 of \Vhich provided that "no land withinthe District shall be sold, mortgaged leased bartered gifted or otherwise
transferred ...... " The preamble to the Act recited that it was "necessary
to make provisions in the Autonomous District of
~he United
Khasi·
Jaintia Hills 'vith respect to the transfer, aUotn1ent, oCcupation or use of
land for ~any Jiurposes likely to promote the
interests of 'the inhabitants
thereof'\ On the question whether para 3 (I) (a) of thP. Sixth Schedule
-confers on the Disfi'ict Council power to make laws with ri;spect to transfer
of land .
.HELD :
The subject of transfer is ckarly beyond the scope of the
law-making power conferred.on the District Council. by tbe Constitution
.and therefore, s. 3. of the impugned Act is void being beyond the jurisJ:iiction of the District Council.
The bracketing together of the· words '''allotment, occupation or use, or
·setting apart of land!~ for thc ... purposcs mentioned therein
without using
words like "transfer" or •:alienation" is clearly indicative of the Constitution makers' intention to restrict 'power of the District Council
only· to
mak~ laws with respeCt to actual use or occupation of the land allotted or
set apart for 1he purposes stated therein.
Jt was not intended to.extend
to "transfer of land".
Nor can the \Vords used in para 3 ( 1) (a) of the
Schedule be read as implying transfer. The purpose. object and scheme of
niaking such provision for the' hill areas also goes a~ainst inclusion of the
poW'er of transfer.
And the addition. in the preamble to the Act, of the
word "transfer" to the words allotment occupation Or use of land" used in
para 3(1)(a) of the Schedule is indicative of an intent to enlarge the scope
of the object and purpose of enacting the in1pugncd Act beyond the Jimits
,of the power conferred by the Constitution. [404 0-H; 405 B, 404 BJ
rt is clear from Para 12 of the Sixth Schedule read with pura3 (I) (a 1
that the District Councils. unlike the Parlia111cnt and the State Legislatures
are not intended to be clothed with plenary . PO\Ver of legislation.
Their
oower to make Jaws i-; expressly )imifcd hy }he provisions of the Sixth
Schedule v.'hlch has created them and they can do
nothing ..beyond
the
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KHASI & JAINTIA HILLS v. SITIMON SAWIAN (Dua, !.)
399
limits which circumscribe their power. It is beyond t~ domain of th.:
courts to enlarge constructively their power to make laws. [407 A-Bl
Further, the proviso to para 3(l)(a) merely serves to ensure that no
law made by the Regional and District Counc:Js with respect to allotment, occupation or use or setting apart, of land, as mentioned in that
clause, shall have the effect of preventing compulsory acquisition of Ian<I
for public purposes, by the Go,·ernment of Assam in accordance with the
law.in force authorising such acquisition.
The proviso does not in any
way after the operati\·e effect of clause (a). [407 C-E]
C1v1L APPELLATE JuR1so1cnoN:
Civil Ap

## Text

398
DISTRICT COUl'\ICIL OF UNITED KHASI & JAINTIA IDLLS
. & ORS;- ETC.
v.
MI~S SITIMON SA WIAN·ETC.
August -25, 1971
IS. M. SIKR!, C.J., G. K. MIT:rER, c. A. VAIDJALINGAM,
P. JAGANMOHAN l,lEDDY AND L D. DuA, JJ.]
Constitution of India 1950--Sixth
Schedu/e-,-Para 3(1)(a)-Power ·
cf District Counci( to rnake law with respect to "allot1nent, occupation or
.use, or the sett.jng apart of land"-!J includes power to 1nake laws w1th
respect to transfer of land-United Khasi..Jaintia Hills District (Transfer
of Land) Act, !953-Sect(on 3--Constitutio'nality of.
·
By virtue of the Sixth Schedule· tq the Constitution the United KhasiJaintia Hills District has been con,stituted~ into. an autonomous district
with a District Council.
Para 3(1) (a) of the Schedule
authorises
the
District Council to make laws ''with respect to'' "the allotment occupation
·Or use, or the setting apart, of land",
for the purpose;; 'mentioned therein.
Ibe District Council passed the United Khasi-Jaintia Hills District (Transfer of Land) Act, 1953 section 3 of \Vhich provided that "no land withinthe District shall be sold, mortgaged leased bartered gifted or otherwise
transferred ...... " The preamble to the Act recited that it was "necessary
to make provisions in the Autonomous District of
~he United
Khasi·
Jaintia Hills 'vith respect to the transfer, aUotn1ent, oCcupation or use of
land for ~any Jiurposes likely to promote the
interests of 'the inhabitants
thereof'\ On the question whether para 3 (I) (a) of thP. Sixth Schedule
-confers on the Disfi'ict Council power to make laws with ri;spect to transfer
of land .
.HELD :
The subject of transfer is ckarly beyond the scope of the
law-making power conferred.on the District Council. by tbe Constitution
.and therefore, s. 3. of the impugned Act is void being beyond the jurisJ:iiction of the District Council.
The bracketing together of the· words '''allotment, occupation or use, or
·setting apart of land!~ for thc ... purposcs mentioned therein
without using
words like "transfer" or •:alienation" is clearly indicative of the Constitution makers' intention to restrict 'power of the District Council
only· to
mak~ laws with respeCt to actual use or occupation of the land allotted or
set apart for 1he purposes stated therein.
Jt was not intended to.extend
to "transfer of land".
Nor can the \Vords used in para 3 ( 1) (a) of the
Schedule be read as implying transfer. The purpose. object and scheme of
niaking such provision for the' hill areas also goes a~ainst inclusion of the
poW'er of transfer.
And the addition. in the preamble to the Act, of the
word "transfer" to the words allotment occupation Or use of land" used in
para 3(1)(a) of the Schedule is indicative of an intent to enlarge the scope
of the object and purpose of enacting the in1pugncd Act beyond the Jimits
,of the power conferred by the Constitution. [404 0-H; 405 B, 404 BJ
rt is clear from Para 12 of the Sixth Schedule read with pura3 (I) (a 1
that the District Councils. unlike the Parlia111cnt and the State Legislatures
are not intended to be clothed with plenary . PO\Ver of legislation.
Their
oower to make Jaws i-; expressly )imifcd hy }he provisions of the Sixth
Schedule v.'hlch has created them and they can do
nothing ..beyond
the
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KHASI & JAINTIA HILLS v. SITIMON SAWIAN (Dua, !.)
399
limits which circumscribe their power. It is beyond t~ domain of th.:
courts to enlarge constructively their power to make laws. [407 A-Bl
Further, the proviso to para 3(l)(a) merely serves to ensure that no
law made by the Regional and District Counc:Js with respect to allotment, occupation or use or setting apart, of land, as mentioned in that
clause, shall have the effect of preventing compulsory acquisition of Ian<I
for public purposes, by the Go,·ernment of Assam in accordance with the
law.in force authorising such acquisition.
The proviso does not in any
way after the operati\·e effect of clause (a). [407 C-E]
C1v1L APPELLATE JuR1so1cnoN:
Civil Appeals Nos. 1546
and 1547 of 1968.
Appeals from the judgment and order dated June 3, 1968 cf
·C
the Assam and Nagaland High Court in Civil Rules Nos. 384 and
408 o.f 1965.
Niren De, Attorney-General and D. N. Mukherjee, for the
appellants (in both the appeals).
A. K. Sen, P. K. Chatterjee and Rath in Das, for the respon-
.D
dents (in both the appeals).
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The Judgment of the Court was delivered by
Dua, J.
The short question requiring decision
in
these
appeals on certificate of fitness granted by the High Court of
Assam and Nagaland under Art. 132 ( 1 )
of the
Constitution
relates to the validity of s. 3 of the United Khasi-Jaintia Hills
District (Transfer of Land) Act (No. IV of l 953) (hereinafter
called the impugned Act), passed by the United Khasi-Jaintia
Hills District Council (hereinafter called 'the District Council').
The High Court struck down this section as beyond the competence of the District Council and also as offending Art. 14 of the
Constitution.
The facts giving rise to these appeals are not in
dispute.
It is, however, unnecessary. to state them because the
question of the constitutional validity of s. 3 of the impugned Act
falls for determination solely on the interpretation of the relevant
provisions of the Constitution without any reference to the facts.
Part X of the Constitution dealing with the Scheduled
and
Tribal Areas consists of the solitary Art. 244 which provides for
the administration of such areas.
According to sub-Art. ( 2) of
this Article the provisions of the Sixth Schedule of the Constitution apply to the administration of the tribal areas in Assam._ By
virtue of Para 1 ( 1 ) read with Para 20 and Part A of the 1 able
appended to this Schedule the United Khas.i-J~intia Hills District
has been constituted into an autonomous D1stnct and under Pam
2( l) of the Schedule there has to be a District Council for each
autonomous District with not less than three-fourths of its members to be elected on the basis of adult suffrage.
Para 3( 1 l (a)
400
SUPREME COURT REPORTS
[197.2] 1 S.C.R.
of the Schedule with which we are directly concerned in these
appeals, reads as under :-
"3. Powers of the Dis.trict Councils and Regional
Councils to make laws.-
( 1 ) The Regional Council for
an autonomous
region in respect of all areas within such region and the
District Council for an autonomous district in respect of
all areas within the district except those which
are
under the authority of Regional Councils, if any, within
the district shall have power to make laws with respect
to--
(a) the allotment, occupation or use, or the setting
apart, of land, other than any land which is a
reserved forest, for the purposes of agriculture
or grazing or for residential or other non-agricultural purposes or for any other purposes
likely to promote the interests of the inhabitants
of any village or town :
Provided that nothing in such laws shall prevent
the
compulsory acquisition of any land, whether
occupied or unoccupied, for public purposes by the
Government of Assam in accordance with the law for
the time_ being in force authorising such acquisition;"
As its preamble shows the impugned Act was enacted because
it was considered "necessary to make provisions in the autonomous district of the United Khasi-Jaintia Hills with respect to tthe
transfer, allotme11t occupation or use of land for any purposes
likely to promote' the interests of the inhabitants thereof'. Section
3 thereof provides as follows :
"No land within the District shall be sold, mortgaged, leased, bartered, gifted or otherwise transferred
by tribal to a non-tribal or by a non-tribal to another
non-tribal, except with the previous sanction of the
District Council :
Provided that no sanction will be necessary in the
case of lease of a building on rent :
Provided further-
( a) That sanction shall not be accorded to the sale
from a tribal to a non-tribal if the intended
transferee either already holds one piece of
house property or land in Shillong, within 5
miles from the Deputy Commissioner's
Court
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KHAS! & JAINTIA HILLS v. S!TIMON SAWIAN (Dua, J.)
401
either is his name or in the name or names of
other members of his family or falls within the
category (in the opinion of the Chief Executive
Member) of the class of profiteering landlords;
( b) That reason shall be recorded for any refusal of
transfer from a tribal to a non-tribal or from a
non-tribal to another non-tribal."
The narrow question posed in the present controversy is whether
para 3 ( 1 )(a) of the Sixth Schedule confers on the District Council power to make laws with respect to transfer of land; in other
words whether the subject of transfer of land is covered by the
expression "allotment, occupation or use or the setting apart of
land."
The High Court has held that Para 3 (1) (a) of the Sixth
Schedule does not empower the District Council to legislate with
respect to transfer of land.
According to that Court the expression "the allotment, occupation or use, or the setting apart of
land ... " does not take within its fold "transfer of land".
The learned Attorney-General has questioned the correctness
of this view and has submitted that bearing in mind the legislative history of the Sixth Schedule which reflects the real object
and purpose of inserting in the Constrtution a separat~ provision
for the administration of tribal areas in the State of Assam, the
expression in guestion as used in cl. (a) of para 3 (1) must be
given a wider meaning so as to include 'transfer of land'. The
learned Attorney-General has in support of this submission drawn
oul' attention to Art. 46 of the Constitution which embodies as
one of the directive principles of State policy, requiring the Statii
to 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 to protect
them from social injustice and all forms of exploitation. Reference
has also been made by him to <:ertain portions of the report of the
Sub-Committee on North-East Frontier
(Assam)
Tribal and
Excluded Areas submitted in July, 1947 to the Advisory Comm.itttee on "fundamental rights, minorities, tribal areas etc." of
the Constitutent Assembly, entrusted with the task of framing the
Constitution of India.
The Advisory Committee accepted the
recommendations to which reference has been made by the learned
Attorney General.
In that report, emphasis was laid on the
anxiety of the Hill people of the North-Eastern Frontier. areas
about their land and fear of their exploitation by the people from
the more advanced and crowded areas in the plains.
The atmosphere of fear and suspicion prevailing in the hill areas even though
considered by some to be unjustified, was felt to be a reality, and
in order to allay those suspicions and fears the necessity of making
-102
SUPREME COURT REPORTS
( 1972 ) l S.C.R.
requisite provisions by way of constitutional safeguards was
emphasised.
According to the report' there was
an emphatic
unanimity of opinion .among the hill people that there should be
control of immigration of outsiders and of alocation of land to
them. such control being already vested in the hill people themselves.
In the areas where no right to private property or proprietary right of the hereditary 9hief was recognised, the land,
including the forests, was regarde'il as the property of the clan.
J t was accordingly recommended in the report, to quote its own
words :
'
". . . . . that the Hill Districts should have powers
of legislation over occupation o; use of land other than
land cori1prising reserved forest. under the Assam Forest
Regulation of 1891 or other law applicable.
The only
limitation we wou)d place upon this is to provide that
the local councils should.. ~ot _require p?yment for the
occupation of vacant land bJ1he Pr_ovlncial Government
for public purposes or prevent the acquisition of priV<\te land, also requir~d for public purposes, on payment
of compensation."'
·
•
According ~o the submission of the learned Attorney General para
3 (!)(a) of tlie Sixth Schedule must be held to have been intended
to carry out the above recommendation of the aforementioned
sub-committee (luly accepted by the Advisory Committee conce.rhed.
Support for the construction of cl. (a) of para 3 ( l) of the
Sixth Schedule as suggested by the learned Attorney General has
been sought flftm the decision of the Federal Court in
Bhola
Prasad v. The Kin1?-Emp~·(1) and from a recent decision of
this Court in Ttidu Bhusa'!-.Jl.ese ¥.-Rama Sundari Devi R anr(').
In Elio/a Prasad's case(') 11
was
observed that the expression "with respect to" contained ins. 100(3) of the Government
of lndia Act, 1935, which gives to
a Provisional Legislature
power to make(JiiWs for the Province or any part thereof should
be given a wid'e-~onstruction. On this
analogy
the
learned
Attorney-General has contended that the expression "with respect
io" containecl.-iivara 3 ( l) also des•!rves 'to .be construed wiflely
so as to incUide _ 'fithin· the expression "the· allotment, occupation
6r use" empl~~y the Constitution in cl. (a) "transfer of lands".
In lndu Bhusan Bose's case(') this Court construed the word
"rei;ulati6n" in the expression" regulation of house accommodation" in Entry No. 3, List T, in the Seventh Schedule of the Constitution of India to be wide enough to include within it all aspects
as to who is to make the constructions, under. what conditions the
(IJ [1942] F.C.R. 17.
(2) [1970] I S.C.R. 443.
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KRAS! & JA!NTIA HILLS V. S!T!MON SAWIAN (Dua. 1.)
403'
constructions can be altered, who is to occupy the accommodation
and for how long, on what terms it is to be occupied, when and
under what circumstances the occupant is to cease to occupy it ..
and the manner in which the accommodation is to
be utilised.
On the analogy of these two decisions, the learned Attorney
General has tried to persuade us to hold that the expression "the
allotment, occupation or use·· occurring in para 3 ( I ) (a) must be
deemed to have bene intnded to be used in a wide sense so as to
include transfer of land.
The proviso 'to cl. (a) of para 3 (I) of the Sixth Schedule,
according to the learned Attorney-General, should not be construed as indicative of the narrower construction, namely, that the
expression "the allotment, occupation or use" as used in that clause
did not cover transfer of land.
According to his contention the
proviso merely places a restricted limitation on the power of the
District Council to make laws by providing that no law made by
the Council shall prevent acquisition of land for public
purpose~
by the Government of Assam in accordance with law. It has been
argued that the meaning and scope of a proviso is to be determined
according to the legislative intent, there being no fixed rule of
universal application governing its function, and that in the present case the legislative intent does not go beyond the limitation
suggested by the learned Attorney-General.
He has cited Commissioner of Commercial Taxes & ors. v. R. S. Jhaver & ors.(')
in which it was explained that the question whether a proviso in
a given case is by way of an exception or a condition to the substantive provision or whether it is in itself a substantive provision.
must be determined on the substance of the proviso and not its
form.
On behalf of the respondents Shri A. K. Sen has drawn our
attention to certain passages from "Notes on Khasi Law" by
Keith Cantlie of the Indian Civil Service, who was Deputy Commissioner of the Khasi and Jaintia Hills
(1930-34).
Those
passages which are found in Ch. XIII dealing with "Land Tenures
in the States" contributed by Mr. David Roy of Assam Civil SerYice, do not, in our view, usefully add to the information contained in the report of the Sub-Committee to which the learned
Attorney-General has already drawn our attention.
We have given full consideration to the arguments addressed
b' the learned Attorney-General, but we feel that the High Court
was right in placing the construction it did on the scope and effect
of cl. (a) of para 3 (I) of the Sixth Scheduk
(1) [1968] I S.C.R. 148.
404
SUPREME COURT REPORTS
[ j 972] I S.C.R.
On the plain reading of para 3 ( I ) (a) of the Sixth Schedule
and of the preamble and s. 3 of the impugned Act the first prima
facie difficulty which one faces in accepting the appellant's argument is created by the departure by the District Council from the
language used in para 3 (1) (a) of the Schedule in the language
used in the preamble and s. 3 of the impugned Act.
The addition
in the preamble of the word "transfer" to the words "allotment.
occupation or use of land .. ,." used in para 3(1)(a) of the
Schedule is indicative of an intent to enlarge the scope of the
object and purpose of enacting the impugned Act beyond the
limits of the power conferred by the Constitution.
And then in
s. 3 of the impugned Act we find that a completely different
phraseology has been employed for prohibiting various kinds of
transfers in express terms.
This leaves no doubt about the great
importance attached by the District Council to the addition of
the word "transfer" in the preamble to the expression actually
used in the Sixth Schedule for conferring legislative power on the
District Council.
No convincing explanation has been offered for
this departure from the language used in the Constitution from
which alone the District Council draws its power to make laws.
If, as is forcefully contended on behalf of the appellant, the words
used in para 3 (1 )(a) of the Sixth Schedule are comprehensive
enough to include within their sweep "transfer of land" then it is
not understood where was the necessity of adding the word
"transfer" in the preamble and using a wholly different phraseology
in s. 3 of the impugned Act. The law maker, it may be pointed out.
may well be presumed ordinarily not to waste words by adding
them as mere surplusage.
We now proceed to deal with the arguments relating to the
meaning of the controversial words used in para 3 ( 1) (a) of the
Schedule.
The word "allot" according to standard dictionaries
means, distribute by lot, or in such a way that the recipients have
no choice; to assign as a lot or apportion to; and the word "allotment" means, apportioning the action of allotting; share allotted
to one; small portion of land let out for cultivation.
The words
·"occupation" and "use" by themselves do not convey the idea of
trasnfer of title.
Similarly the "setting apart of land" for the purposes mentioned in cl. (a) cannot be read as implying transfer of
title.
The bracketing together of the words "allotment, occupation or use, or .setting apart of land" for the purposes mentioned
therein without using words like "transfer" or "alienation" is
dearly indicative of the Constitution makers' intention to restrict
power of the District Council only to make laws with respect to
actual use or occupation of the land allotted or set apart for the
purposes stated therein. It was not intended to extend to "transfer of land".
Words like "transfer" or "alienation of land", it
may be pointed out, have been used in the Seventh Schedule to
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KHASI & JAINT!A HTLLS v. S!TIMON SAW!AN (Dua,!.)
405
the Constitution when describing the power of the State Legislature to make Jaws vi de Entry 18, List II.
There is no cogent
ground why such expression could not be used in para 3 (1 )(a)
also, if power to make laws with respect to transfer of land was
intended to be conferred on the District Council.
In our opinion,
the plain Iangua,ge of this sub-para does not admit of any ambiguity
and no compelling reasons have been brought to our notice why
!he language should be unduly stretched so as to include the
power of transfer.
The purpose, object and scheme of making
such provision for the hill areas also goes against the appellant's
contention.
It therefore seems to us to be quite clear that the framers of
the Constitution wanted to confine the power of the District Councils to make laws under para 3 (1 )(a) to the distribution or
setting apart, of the land mentioned therein only for the purposes
of occupation or use as expressly stated therein, without intending to extend that power to the transfer of land.
This construction is not only in accord with the real sense discernible from the
plain meaning of the language used in this clause, but it also serves
more effectively to carry out the manifest purpose, policy and
scheme underlying the provisions of the Constitution, namely,
protection of the hill people in the North-Eastern Hills Districts
against exploitation by the more sophisticated outsiders from the
plains, than the construction which would extend the District
Councils' power of making Jaws to the transfer of land.
The
report of the Sub-Committee referred to earlier clearly supports
this construction.
The passages from the report to which our
attention has been drawn do not show that power to make laws for
transfer of land was recommended to be vested in the District
Councils.
On the other hand, the recommendations contained in
the report were restricted to the power to control only use and
occupation of the land and it was this limited power which was
recommended to be vested in the District Councils.
This would
be clear from the following passage in the report :
"Accepting this then as a fundamental feature of the
administration of the hills, we recommend that the Hill
Districts should have powers of legislation over occupation or use of land other than land comprising reserved
forest un~r the Assam Forest Regulation of 1891 or
other law applicable.
The only limitation we
would
place upon this is to provide that the local councils
should not require payment for the occupation of
vacant land by the Provincial Government for public
purposes or prevent the acquisition of private land, also
required for public purposes, on payment of compensation."
406
SUPREME COURT REPORTS
[ 1972] l S.C.R.
The argument that in construing the prov1s10ns
conferring
power to legislate the words should be interpreted broadly and
no narrow or pedantic interpretation should be placed upon them
is. in our opinion, inapplicable to the case in hand.
The power
of legislation conferred on bodies like the District Councils, which
concerns us, must be confined strictly within the limits prescribed
by the plain language used and the doctrine of wide construction
visions conferring plenary nature of legislative power on the Parliament or State Legislatures in which case the appellant's argument may be more appropriately accepted.
We consider it proper at this stage to refer to para 12 of 'the Sixth Sch•<dule which
provides:
"12. Application of Acts of Parliament and of the
Legislature of the State to autonomous districts
and
autonomous regions.-( 1) Notwithstanding anything in
this Constitution-
(a) no Act of the Legislature of the State in respect
of any of the matters specified in paragraph 3 of
this Schedule as matters with respect to which
a District Cou,ncil or a Regional Council may
make laws, and no Act of the Legislature of the
State prohibiting or restricting the consumption
of any non distilled alcoholic liquor shall apply
to any
autonomous district or autonomous
region unless in either case the District Council
for such district or having jurisdiction over such
region by public notification so directs, and the
District Council in giving such direction
with
respect to any Act may direct that the Act shall
in its application to such district or region or
any part thereof have effect subject to such
exceptions or modifications as it thinks fit;
(b) the Governor may, by public notification, direct
that any Act of Parliament or of the Legislature
of the State to which the provisions of clause
(a) of this sub-paragraph do not apply shall not
apply to any autonomous district or an autonomous region, or shall apply to such district or
region or any part thereof subject to such exceptions or modifications as he may specify in the
notification.
(2J Any direction given under sub-paragraph (1)
of this paragraph may be given so as to have retrospective effect."
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KHASI & JA!NTIA HILLS I'. SITIMON SAWiAN (Dua, !.)
407
It is clear from this provision, read with para 3(1) (a) already
reproduced, that the District Councils unlike the Parliament and
the State Legislatures are not intended to be clothed with plenary
power of legislation.
Their power to make laws is
expressly
limited by the provisions of the Sixth Schedule which has created
them and they can do nothing beyond the limits which circumscribe their power.
l t is beyond the domain of the courts to
enlarge constructively their power to make laws.
The proviso to para 3(l)(a) merely serves to ensure that no
law made by the Regional and District Councils with respect to
allotment, occupation or use or setting apart, of land, as
mentioned in that clause, shall have the effect of preventing compulsory acquisition of land for public purposes, by the Government
of Assam in accordance with the law in force authorising such
acquisition.
This proviso by no means enlarges the scope of the
power conferred on the Regional and District Councils by cl. (a)
and indeed it has not been so claimed by the learned AttorneyGeneral.
A proviso may undoubtedly be sometimes inserted to
allay fears considered by some to be unfounded.
But the question must ultimately come back to the point whether or not power
to make laws conferred by cl. (a) includes the power to do
so
with respect to transfer of land and this must turn upon the
exact language and its primary meaning.
The simple words used
in cl. (a) are incapable of bearing the construction suggested by
the learned Attorney-General and the provision found in
the
proviso does not in any way alter the operative effect of this
clause.
The preamble of the impugned Act no doubt does speak of
the necessity to make provisions with respect to "transfer, allotment, occupation or use of land for any purpose likely to promote·
the interests of the inhabitants thereof" but the subject of transfer
is clearly beyond the scope of the law-making power conferred on
the District Council by the Constitution and to that extent, therefore, the impugned Act which means s. 3 thereof is void being
beyond the jurisdiction of the District Council.
On the view we have taken of the plain meaning of para
3( I) (a) of the Sixth Schedule it is unnecessary to consider the
other points relating to the violation of Art. 14 of the Constitution.
This Court normally does not decide points which are not
stri,lly necessary for disposing of the appeal before it.
This appeal accordingly fails and is dismissed with costs.
K.B.N.
Appeal dismissed.