# LINGAPPA POCHANNA APPELWAR AND ORS v. STATE OF MAHARASHTRA AND ANR. ETC

- **Citation:** [1985] 2 S.C.R. 224
- **Court:** Supreme Court of India
- **Decided:** 1984-12-04
- **Case number:** Civil Appeal No. 4384 of 1984
- **Bench:** 0. Chinnappa Reddy, A. P. Sen, E. S. VENKATARAMIA!l JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lingappa-pochanna-appelwar-and-ors-v-state-of-maharashtra-and-anr-etc-8865
- **Pages:** 29

## Headnote

Constitution of India 1950, Articles 14, 19 (/) ({), 31, 46 and Entry 18 list
II Seventh Schedule: Ma~arashtra Restoration of Lands to Scheduled Tribes A.ct
1974, Sections 2 (/) (i), 3, 4 and 9A & Advocates Act 1961, Section 30. State
enactment providing for annulment of transfers of agricultural lands by tribals to
non-tribals and for restoration of pos.vession-State legislature-Competency to
enact-Enactment whether valitl and constitutional-Prescribing a date for
annulment of transfers-Whether arbitrary and void-Bar on advocates appearing
in proceedings under the Act-Whether valid and reasonable.
Statutory Interpretation-Distributive justice-what is-Law to be used as
instrument of distributive justice-Emphasised.
Legislation was undertaken by different States placing restrictions on
transfer of lands by members of Scheduled Castes and Tribes in pursuance of
the declared policy of the State of safeguarding, protecting and improving the
conditions of weaker sections of the society by providing that any such transfer
except in terms of the provisions of the different Acts shall be null ·and void.
The State Government of Maharashtra by a Government Resolution
appointed a Committee to inquire into and report on how far the provisions of
the Maharashtra Land Revenue Code, 1966, the Bombay Tenancy & Agricul~
tural Lands (Vidharbha Region) Act, 1958 the Hyderabad Tenancy and Agri·
cultural Lands Act, 1950 and the Bombay Tenancy and Agricultural Lands
Act, 1948 had been effective in giving protection to persons belonging to
Scheduled Tribes and to suggest suitable amendments, if any of the existing
provisions were found to be inadequate. The Committee submitted its Report,
and pointed out that inspite of section 36 (2) Maharashtra Land Revenue Code
1966, and analogous provisions in the earlier Land Revenue Laws, these were
not found sufficient, and persons belonging to the Scheduled Tribes because of
their poverty, lack of education and general backwardness bad been exploited
by various persons and deprived of their lands, and recommended that pro·
vision should be made for restoring to persons belonging to Scheduled Tribes
the lands which had been duly transferred to other persons. After considering
tlie aforesaiq recoaiaiendation, the State Governaien\ of Maharashtra ena~~4
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L.P. APPELWAR V. MAHARASHTRA
225
the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. This ]!
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Act was included in the Ninth Schedule of the Constitution.
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The Appellant purchased
agricultural lands from the father of
Respondent No. 2 by a registered sale deed with the prior permission of the
Collector as reQuired by Section 47 of the Hyderabad Tenancy and Agricultural
Lands Act, 1950 and was placed in posl\ession thereof. The Sub.Divisional
Officer finding that the vendor was a gond, and a tribal within the meaning of
section 2 (l) (j)ofthe Act initiated suo motu proceedings under section 3 (I) of
the Act for restoration of the lands to respondent No. 2, and after enquiry
finding that respondent No. 2 had given an undertaking in form III that he
required the land for his personal cultivation and :was willing to deposit the
amount fixed by him for payment of the appellant, directed under section 3 (I)
(ii) of the Act that possession should be restored to respondent No. 2.
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The appellant preferred an appeal under section 6 to tho Land Revenue
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Tribunal, which upheld the order passed by the Sub-Divisional Officer. The
Writ Petition of the appellant, was dismissed in limlne and this order was
confirmed by a Division Bench of the High Court.
In the Appeals to this Court, it was contended on
behalf of the
appellants : (I) that sections 3 (!) and -4 of the Act which provide for
annulment of transfers of land by tribals to non-tribals effected during the
period from April t, 1957 to July 6, 1974 and for restoration of possession to
them was beyond the legislative competence of the State under Entry, 18 in List
2 of the Seve

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224
LINGAPPA POCHANNA APPELWAR AND ORS.
v.
STATE OF MAHARASHTRA AND ANR. ETC.
December 4, 1984
[0. CHINNAPPA REDDY, A. P. SEN AND E. S. VENKATARAMIA!l JJ.J
Constitution of India 1950, Articles 14, 19 (/) ({), 31, 46 and Entry 18 list
II Seventh Schedule: Ma~arashtra Restoration of Lands to Scheduled Tribes A.ct
1974, Sections 2 (/) (i), 3, 4 and 9A & Advocates Act 1961, Section 30. State
enactment providing for annulment of transfers of agricultural lands by tribals to
non-tribals and for restoration of pos.vession-State legislature-Competency to
enact-Enactment whether valitl and constitutional-Prescribing a date for
annulment of transfers-Whether arbitrary and void-Bar on advocates appearing
in proceedings under the Act-Whether valid and reasonable.
Statutory Interpretation-Distributive justice-what is-Law to be used as
instrument of distributive justice-Emphasised.
Legislation was undertaken by different States placing restrictions on
transfer of lands by members of Scheduled Castes and Tribes in pursuance of
the declared policy of the State of safeguarding, protecting and improving the
conditions of weaker sections of the society by providing that any such transfer
except in terms of the provisions of the different Acts shall be null ·and void.
The State Government of Maharashtra by a Government Resolution
appointed a Committee to inquire into and report on how far the provisions of
the Maharashtra Land Revenue Code, 1966, the Bombay Tenancy & Agricul~
tural Lands (Vidharbha Region) Act, 1958 the Hyderabad Tenancy and Agri·
cultural Lands Act, 1950 and the Bombay Tenancy and Agricultural Lands
Act, 1948 had been effective in giving protection to persons belonging to
Scheduled Tribes and to suggest suitable amendments, if any of the existing
provisions were found to be inadequate. The Committee submitted its Report,
and pointed out that inspite of section 36 (2) Maharashtra Land Revenue Code
1966, and analogous provisions in the earlier Land Revenue Laws, these were
not found sufficient, and persons belonging to the Scheduled Tribes because of
their poverty, lack of education and general backwardness bad been exploited
by various persons and deprived of their lands, and recommended that pro·
vision should be made for restoring to persons belonging to Scheduled Tribes
the lands which had been duly transferred to other persons. After considering
tlie aforesaiq recoaiaiendation, the State Governaien\ of Maharashtra ena~~4
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L.P. APPELWAR V. MAHARASHTRA
225
the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. This ]!
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Act was included in the Ninth Schedule of the Constitution.
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The Appellant purchased
agricultural lands from the father of
Respondent No. 2 by a registered sale deed with the prior permission of the
Collector as reQuired by Section 47 of the Hyderabad Tenancy and Agricultural
Lands Act, 1950 and was placed in posl\ession thereof. The Sub.Divisional
Officer finding that the vendor was a gond, and a tribal within the meaning of
section 2 (l) (j)ofthe Act initiated suo motu proceedings under section 3 (I) of
the Act for restoration of the lands to respondent No. 2, and after enquiry
finding that respondent No. 2 had given an undertaking in form III that he
required the land for his personal cultivation and :was willing to deposit the
amount fixed by him for payment of the appellant, directed under section 3 (I)
(ii) of the Act that possession should be restored to respondent No. 2.
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The appellant preferred an appeal under section 6 to tho Land Revenue
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Tribunal, which upheld the order passed by the Sub-Divisional Officer. The
Writ Petition of the appellant, was dismissed in limlne and this order was
confirmed by a Division Bench of the High Court.
In the Appeals to this Court, it was contended on
behalf of the
appellants : (I) that sections 3 (!) and -4 of the Act which provide for
annulment of transfers of land by tribals to non-tribals effected during the
period from April t, 1957 to July 6, 1974 and for restoration of possession to
them was beyond the legislative competence of the State under Entry, 18 in List
2 of the Seventh Schedule, (2) sections 3 (1) and 4 are inconsistent with, take
away and abridge the fundamental rights conferred by Articles 14, 19 (I) (f)
and 31, (3) The adoption of the date April I, 1957 as the date from which there
was to be an annulment of transfer under sections 3 (l)'and 4 was arbitrary and
void as contravening Article 14, (4) The Act was violative of Article 14 because
it treats equals unequally : in that members of Scheduled Castes who also
constitute the weaker section of the society have been discriminated against
and there was preferential treatment afforded to non-tribal transferees who had
diverted the lands purchased by them to non-agricultural purposes. (5) The
definition of non-tribal transferee contained in section 2 (I) (i) offends Article
14 as it permitted an assignee of non.tribal transferee effected prior to March
15, 1971 to escai)e the consequence of annulment under section 3 (I) and 4, (6)
Sections 9A was constitutionally void as it affected the fundamental right of an
advocate enrolled by the State Bar Council to carry on his profession guarnn.
teed by Article 19 (!) (g), and the right of the appellants who are non-tribals
by being prevented tO be represented by a legal practitioner of their choice.
Dismissing the Appeals,
HELD : 1 (i) Our Constitution permits and even directs the State to
administer what may be termed 'distributive justice'. The concept of distributive
justice in the sphere of law-m11cing co:i.notes, the rem'.lval or economic in~qua!i.
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lies an~ rectifying the injustice resqltin~ from dealings or transaclions between
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226
SUPREME COURT PEPORTS
[1985] 2 S.C.R.
unequals in society. Law should be used as an instrument of distributive justice to
achieve a fair division of wealth among the members of society based upon the
principle : 'From each according to his capacity, to each according to his needs'.
Distributive justice comprehends more than achieving, lessening of inequalities
by differential taxation, giving debt relief or distribution of property owned by
one to many who have none by imposing ceiling on holdings, both agricultural
and urban, or by direct regulation of contractual transactions by forbidding
certain transactions and, perhaps, by requiring others. [239F-H ; 240A]
(ii) The present legislation is a typical illustration of the concept of
distributive justice. It is nothing but a remedial measure in keeping with the
policy of the State for rendering social and economic justice to the weaker
sections oftbe society. It is intended and meant as an instrument for :alleviating
opperession, redressing bargaining imbalance, cancelling unfair advantages, and
generally overseeing and ensuring probity and fair dealings.f(239E ; 24JE ; 242C)
It seeks to reopen transaction between parties having unequal bargaining
power resulting in transfer of title from own to another due to force of
circumstances and also seeks to restitute the parties to their original position.
[242C]
Manchegowda & Ors. v. State of Karnataka & Ors. [1984) 3 SCC 301,
F•teh Chand Himmatla/ v. State of Maharashtra [1977) 2 SCR 828 & Pathumma
v. State of Kere/a [1978] 2 S.C.R. 537, referred to.
2 (i) The Act strikes at transactions relating to agricultural lands effected
between members of Scheduled Tribes who admittedly belong to the weaker
sections of the society and persons not belonging to Scheduled Tribes.
Experience in the past showed that members of the Scheduled Tribes had been
exploited ·:due to their ignorance and poverty by members belonging to the
affluent and powerful sections of the society to obtain transfer of their lands
by way of sale, gift, mortagage, exchange etc. for a nominal consideration or
for no consideration at all rendering them practically landless. The Sub ..
Divisional Officers and Collectors due to their multifarious duties accorded
sanction to such transfers without application of mind to the prevalent circum~
stances. The Committee appointed by the State Government pointed out in
its Report that the provisions of the Maharashtra Land Revenue Code 1966
and the relevant tenancy Laws that were in existence had not been effective
in giving protection to persons be1onging to the Scheduled Tribes and
recommended that provisions should be made for restoring to members of
Scheduled Tribe• the lands which had been duly transferred by them to other
persons. The Legislature therefore stepped in and reopened such transactions
by directing that lands be restored to ~)he tribal transferers free from all
encumbrances on payment by them to the oonetribal transferees the amounts
determined by the Collector under Sub·section (4) of s. 3. [246E·H : 247A-CJ
(ii) The restoration of possession by sections 3 (I) and 4 does not involve
any deprivation of the property in the sense that there is unsettlina; or tide
without consideration. It makes detailed provisions setting out the conditions
subject to which a transfer by a tribal of his agricultural lands to a non-tribal
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L.P, APPELWAR V. MAHARASHTRA
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may be nullified and possession restored. The object of the legislation is
restitution of the property to the persons to whom the lands originally belonged,
subject to the adjustment of equities between the parties. [247D·F]
(iii) T~e Act in its
true nature and character is a Jaw relating to
transfers and alienations of agricultural lands by members of Scheduled Tribes
in the State to persons not belonging to Scheduled Tribes. Such a law does
not fall within Entries 6 and 7 in List Ill but is within Entry 18 in List JI. [2470]
(iv) The words 'other than agricultural land' in Entry 6 and the words
'but not inc1uding contracts relating to agrlt:ultural land in Entry 7 in List III
have the effect of delimiting the legislative power of the union to make a law
with respect to contracts in relation thereto. The power of the State Legislature
to make a law with respect to transfer and alienation of agricultural land under
Entry 18 in list II carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof,
but also the power to make a Jaw to reopen such transfers and .alienations.
Such a law relatable to Entry 18 in list JI of the Seventh Schedule was clearly
within the legislative competence of the State Legislature. ]248B·D]
3. The Act having been placed in the Ninth Schedule of the Constitution
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the submission that sections 3 (1) and 4 arc inconsistent with. or take away or
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abridge any of the fundamental rights conferred by Art. 14, Art. J9(1)(f) or
Art. 31 of the Constitution must be rejected at the very threshold because it is
protected under Art. 3!B. [248FJ
4. (i) It is p_ermis~ible for the legislature to make a classification on the
basis of time for a law to operate. What is necessary is that there must be a
reasonable nexus between the basis of classification as to time and the object
sought to be achieved. [248H]
(ii) The Act adopts April 1,1957 for nullification of transfers made by
tribals to non-tribals under sections 3(1) and 4 because that was the 'tillers'
day' for purposes of the Bombay Tenancy & Agricultural Lands Act, 1948, on
the basis of which the non-tribal transferees could apply to the Tenancy Court
for purchase of their holdings on the ground that they were in cultivating
position thereof. There was therefore reasonable nexus for the fixation of such
date and the object sought to be achieved and the impugned Act is not violative of Art. 14. [249A-B]
5. (i) The appellants who were transferees from members of scheduled
Tribes cannot possibly plead the cause of members of Scheduled Castes.
Members of Scheduled Tribes i.e. tribals who are mostly aboriginals constitute
a distinct class who need a special protection of the State. [249E]
(ii) There is no question of any differential treatment between two
classes of persons equally situate when a part of the land is diverted to a nonagricu1tural purpose viz. the construction of a dwelling house or the setting
up of an industry, the State legislature obviously could not have made a law
for a0nulmen\ of transfer ofsu~b lands bytribals under Entry 18 in List II as
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SUPREME COURT REPORTS
(1985] 2 S.C.R.
the lands having been diverted to non-agricultural purposes ceased to be
agricultural lands. In the case of such non-agricultural land, if the State
Legislature made such a law it would not be effective unless it was reserved for
the assent of the President and received such assent. [2490-H ; 250A]
6. The expression 'non-tribal transferee' as defined in section 2 (1) (i)
is an inclusive one. It is not correct to say that it permits an assignee of a non ..
tribal transferee effected prior to March 15,\971 to escape the consequences of
annulment under sections 3(1) and 4 of the Act. The Legislature appointed
March 15, 1971 with a view to give retrospective effect to the provisions of
Sections 3(1) and 4 of the Act as 'that was the date on which the Government
constituted the Committtee to inquire into and report to the State Government
on how far the provisions of the Maharashtra Land Revenue Code. 1%6 and
the relevant tenancy Jaws had been effective in giving protection to persons
belonging to Scheduled Tribes. The provisos to sections 3(1) and 4 are
meant to mitigate the hardship which otherwise would be caused to a non·
tribal transferee who would again be rendered landless if he were required to
restore the entire land under sections 3(1) and 4 of the Act. [250B-D; GJ
7. (i) A person enrolled as an advocate under the Advocate's Act,
1961 is not ipso facto entitled to a right of audience in all Courts unless section
30 of the Advocates Act, 1961 is first brought into force.
The right of an
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Advocate brought on the roHs to practice is, just what is confened on him by
sections 14(\)(a), (b) and (c) of the Bar Councils Act 1926. Section 9A is not
thererore an unconstitutional restriction on advocate's right to practice their
profession. (2510-H; 252AJ
(ii) Apart from the provisions of Art. 22(1) of the Constitution, by which
an accused who is arrested and detained in custody is entitled to consult and be
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defended by a legal practitioner of his choice, no litigant has a fundamental
right to be represented by a lawyer in any Court, In all other matters i.e. in
suits or other proceedings in which the accused is not arrested and detained
on a criminal charge, the litigant bas no fundamental right to be represented
by a legal practitioner . [252B-C]
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(iii) The legislature felt that for implementation of the legislation. it
would not subserve the public interest if lawyers were allowed to appear plead
or act on behalf of the non-tribal transferees. A tribaJ and a non.tribal are
unequally placed and non·tribal transferee being a person belonging to the more
affluent class, would unnecessarily protract the proceeding'3. before the Collector
under sections 3(1) and 4 by raising all kinds of pleas calculated to delay or
defeat the right of the tribal for restoration of his lands. The proceedings before the Collector have to be completed with sufficient despatch and the trans·
ferrcd lands restored to a tribal without any of the law's delays. [2520-EJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4384 of
1984.
From the Judgment and Order dated 27.6.84 of the Bombay
High Court in L.P.A No. 147 of 84 in W.P. No. 1624 of 1977.
AND
Civil appeal No. 3288 of 1984.
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U>. APPELWAR v. MA!IARAS!ITRA (Sen, J.)
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(From the judgment & order dated 21.6.84 of the Bombay
High Court in L.P.A. No. 135 of 1984.)
V.B. Joshi for the appellant in both the appeals.
V.S. Desai and M.N. Shroff for the respondents in both the
appeals.
The Judgment of the Court was delivered by
SEN, J. These two appeals by special leave are directed against
the judgments and orders of a Division Bench of the Nagpur Bench
of the Bombay High Court dated June 21 and 27, 1984 and raise a
common question relating to the constitutional validity of ss.3 and
4 of the Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974. The question is whether ss.3 and 4 of the impugned Act
which provided for annulment of transfers made by members of
Scheduled Tribes and for restoration of lands to them on certain
conditions were ultra vircs the State Legislature as being beyond the
purview of Entry 18 of List II of the Seventh Schedule or were
otherwise violative of Art. 14, Art. 19(1)(f) and Art. 31 of the
Constitution.
Facts in these two appeals are more or less similar. In Civil
Appeal No. 4384 of 1984, the appellant Lingappa Pochanna
Appelwar had by a registered ·sale-deed dated November 30, 1965
purchased agricultural land bearing Survey No. 27 having an area
of 20 acres 39 gunthas from Raju Meshram, father of respondent
No. 2 Sonerao Raju Meyhram who being a gond was a tribal within
the meaning of s.2(l)(j) of the Act for a consideration of Rs. 1300
with the prior permission of the Collector as required by s.47 of the
Hyderabad Tenancy & Agricultural Lands Act, 1950 and was placed
in possession thereof.
Suo motu proceedings were started by the
Sub-Divisional Officer, Rajura in District Chandrapur under s.3(1)
of the Act for restoration of the lands to respondent No. 2. The
Sub-Divisional Officer initiated an inquiry, summoned the parties
and recorded their statements. By his order dated February 19,
1977 he held that it was admitted by the appellant that his transferor
Raju Meshram was a gond and therefore a tribal under s.2(1)(j) of
the Act, that no improvements had been made by him on the land
and that there were no encumbrances thereon. He therefore held
that the case falls within s.3(1) of the Act and recorded that respondent No. 2 Sonerao Raju Meshram, the tribal, had given an undertaking in Form III that he required the land for his personal
cultivation and was willing to deposit the amount fixed by him for
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SUPREME COURT REPORTS
(1985] 2 S.C.R.
payment to the appellant.
He accordingly directed in exercise of
the powers vested in him under s.3(l)(ii) of the Act that possession
of an area of 19 acres 19 gunthas out of Survey No. 27 be taken
from the appellant and restored to respondent No. 2 on payment
of Rs. 46l.76p. towards the consideration equal to 48 times of the
assessment as required by s.3(4)(b) after setting apart a part ofthe
remaining portion of 1 acre 20 gunthas covered by a dwelling house.
The appellant preferred an appeal under s.6 of the Act to the
Maharashtra Land Revenue Tribunal, Nagpur but a Single Member
of the Tribunal by his order dated August 5, 1977 upheld the order
passed by the Sub-Divisional Officer. The appellant than filed a writ
petition before the Nagpur Bench of the Bombay High Court assailing the orders of the Maharashtra Land Revenue Tribunal as well
as that of the Sub-Divisional Officer.
A learned Single Judge by
his order dated March 13, 1984 dismissed the writ petition in /imine
and a Letters Patent Appeal preferred by the appellant was also
dismissed by a Division Bench by its order dated June 27, 1984.
Facts in Civil Appeal No. 3288 of 1984 are more or !es~ similar.
We must here mention that the High Court in Sadashiv Ragho
Ko/ambe & Ors. v. State of Maharashtra & Anr. being Special Civil
Application No. 1064/76 decided on June 20, 1976 upheld the
constitutional validity of the Act and Civil Appeal No. 982/76 is
pending before this Court.
The impugned Act is supplemental or incidental to the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws viz. the Bombay Tenancy & Agricultural Lands (Vidarbha
Region) Act, 1958 in relation to the Vidarbha region of the State,
the Hyderabad Tenancy & Agricultural Lands Act, 1950 in relation
to the Hyderabad region of the State and the Bombay Tenancy &
Agricultural Lands Act, 1948 in relation to the rest of the State.
Similar measures have been undertaken by different States placing
restrictions on transfer of lands by members of Scheduled Castes
and Tribes for the implementation of the Directive Principles of
State& Policy enshrined in Art. 46 of the Constitution which enjoins
that "the State shall promote with ~pecial care the educational and
economic interests of the weaker sections of the people and in
particnlar of the Scheduled Castes and Tribes and shall protect
them from social injustice and all fdrms of exploitation".
Although there is legislation undertaken by different States
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L.P. Ai>PEL\VAR v. MAHARASll)'RA (Sen J.)
231
placing restrictions on transfer of lands by members of Scheduled
Castes and Tribes in pursuance of the declared policy of the State
of safeguarding, protecting and improving the cnnditions or weaker
sections of the society by providing that any such transfer except in
terms of the provisions of the different Acts shall be null and void,
the State of Maharashtra has gone a step further for annulment of
such transfers by members of Scheduled Tribes and for restoration
oflands to them by enacting the Maharashtra Restroration of Lands
to Scheduled Tribes Act, 1974. The impugned Act has been placed
in the Ninth Schedule of the Constitution and is thereof immune
under Art. 31B from any challenge on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred
by Art. 14, Art 19 or Art. 31 of the Constitution.
Before dealing with the contention raised, it would be convenient to deal with the legislative history. By a Government Resolu·
tion in the Revenue & Forest Department, the State Government
appointed a Committee to inquire into and report to the State
Government inter alia on how for the provisions of the Maharashtra
Land Revenue Code, 1966 and the relevant tenancy law had been
effective in giving protection to persons beloging to Scheduled
Tribes and to suggest among other things suitable amendments
therein if any of the existing provisions were found to be inadequate.
The said Committee by its Report to the Government dated April
7, 1972 drew the attention of the State Government to the difficulties
experienced in the administration of the provision contained in
s 73 of the Bombay Land
Revenue Code, 1897 (in Western
Maharashtra) and the analogous provisions in the Madhya Pradesh
Land Revenue Code, 1954 (in Vidarbha) and the Hyderabad Land
Revenue Act, 1317F (in Marathawadr) which are now replaced by
s.36 of the Maharashtra Land Revenue Code, 1966. According to snb-s.(2) of s.36, occupancies of persons belonging to
such Scheduled Tribes as had been notified by Government,
and in the parts of the State notified by Government, could
not be transferred except with the previous sanction of the
Collector. The intention of the Legislature in making this provision
was that this weaker section of the community should not become
landless and that persons belonging to the affiuent and powerful
sections should not be allowed to take undue advantage of the
situation. However, inspite of this provision and provisions of the
earlier Land Revenue laws, those were not found sufficient and
persons belonging to the Scheduled Tribes because of their poverty,
lack of education and general backwardness had been exploited by
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SUPREME CoURT REPORTS
[19851 2 s.c.R..
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~;rious persons· who could take advantage of the sad plight of these
poor persons depriving them of their lands~ The said Committee
accordingly recommended inter a/ia that provision should be made
for restoring to persons belonging to Scheduled Tribes the lands
which had been duly transferred to other persons. After considering
the aforesaid recommendation of the said Committee, the State
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Government were of the opinion that steps should be taken forthwith for restoring certain lands to persons belonging to Scheduled
Tribes.
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Broadly stated, such illegal transfers fell into two categories,
namely : (!) Occupancy holdings had been transferred to persons
not belonging to Scheduled Tribes by the Collector or the SubDivisional Officer on the ground that occupancy holdings were
allowed to be transferred to persons not belonging to Scheduled
Tribes. This was in clear violation of the provisions of s. 3 (2) of
the Maharashtra Land Revenue Code. (2) The lands were first
allowed to be leased out to persons not belonging to Scheduled
Tribes by the Collector or the Sub-Divisional Officer on the ground
that members of the Scheduled Tribes holding such lands were
unable to cultivate them personally due to sickness or otherwise.
Later on, taking advantage of the provisions of the Bombay Tenancy
& Agricultural Lands Act, 1948, such transferees applied to the
Tenancy Courts for purchase of the holdings on the ground that
they were in cultivating possession on April I, 1957 i.e. on "the
tillers' day" The Committee accordingly recommended that necessary legislation be undertaken for restoration of lands to such
Scheduled Tribes which had been transferred whether by way of
sale, gift, mortgage or any other disposition made or had gone into
the possession of members not belonging to Scheduled Tribes under
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a decree or order of a Court on or after April l, 1957. It would
therefore appear from the Report that the provisions contained in
the relevant Land Revenue laws were not found sufficient to help the
members of the Scheduled Tribes whose ignorance and poverty had
been exploited by persons belonging to the affluent and powerful
sections to obtain sales or mortgages either for a nominal consideration or for no consideration at all and they had become the victims
of circumstances.
The Statement of Objects and Reasons accompanying the Bill
is as follows :
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t.P. APPELWAR v. MAHARASHTRA (Sen, J.)
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"It was noticed that in a number of cases lands previously held by persons belonging to Scheduled Tribes have
been transferred to non-Tribals as a result of purchases
made or deemed to have been made under the Tenancy
Laws or as a result of transfers (including exchanges)
validly effected after !st April, 1957 under the provisions
of the Maharashtra Land Revenue Code, 1966 or other
laws in force in the State. After examining the recommendation of the Committee appointed by Government to
examine the difficulties experienced by the Tribal landholders in the administration of certain provisions of the
Maharashtra Land Revenue Code and other laws in force
in the State it is considered necessary to provide for restoration of the lands which have gone into the hands of nonTribals to their original Tribal owners. The bill seeks to
achieve this object".
We have referred to the Statement of Objects and Reasons
and the Report of the Committee not as an aid to construction but
for the limited purpose of ascertaining the conditions prevailing at
the time the Bill was introduced and the object sought to be
achieved .
Various contentions were raised but before we deal with them,
it is necessary to refer to certain provisions of the Act. S. 2 (1) of
the Act is the definition clause. The word 'transfer' in relation to
land is defined ins. 2 (I) (i) to mean the transfer of land belonging
to a tribal made in favour of a non-tribal during the period
commencing on the !st day of April 1957 and ending on the 6th day
of July 1974 either (a) by act of parties, whether by way of sale,
gift, exchange, mortgage or lease or any other disposition made
inter-vivos, or (b) under a decree or order of a court, or (c) for
recovering any amount of land revenue due from such tribal, or for
recovering any other amount due from him as an arrear ofland
revenue, or otherwise under the Maharashtra Cooperative Societies
Act, 1960 or any other Jaw for the time being in force but does not
include a transfer of land falling under the provisions of sub-s. (3)
of s. 36 of the Code and the terms 'tribal-transferor' and 'non-tribal
transferee' have to be construed accordingly. The word 'tribal' as
defined in s. 2 (1) (j) means a person belonging to a Scheduled
Tribe within the meaning of the Explanation to s. 36 of the Code
i. and includes his successors-in-interest. The expression 'relevant
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StiPRRME COURT REPORTS
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tenancy Jaw' is defined in s. 2 (l) (g) to mean (1) the Bombay
Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958, in
relation to the Vidarbha region of the State (2) the Hyderabad
Tenancy & Agricultural Lands Act,
1950, in relation to the
Hyderabad region of the State, and (3) the Bombay Tenancy &
Agricultural Lands Act, 1948, in relation to the rest of the State.
Sub-s. (I) of s. 3 of the Act provides as follow(:
"3. (J) Notwithstanding anything contained in any
other law for the time being in force or any judgment,
decree or order of any Court, Tribunal or authority, the
Collector either suo mo tu at any time, or on the application
of a Tribal-transferor made within three years from the
commencement of this Act shall, after making such inquiry
as he thinks fit, direct that-
(i) the lands of the Tribal-transferor and non-Tribaltransferee so exchanged shall be restored to each
other ; and the Tribal-transferor, or as the case may
be, the non-Tribal-transferee shall pay the difference
in value of improvements as determined under cl. (a)
of sub-s. (4), or
(ii) the land transferred otherwise than by exchange be
taken from the possession of the non-Tribal-transferee,
and restored to the Tribal-transferor, free from all
encumbrances, and the Tribal-transferor shall pay
such transferee and other persons claiming encumbrances the amount determined under cl. (b) of sub-s. (4).
Provided that, where land is transferred by a Ttibaltransferor in favour of a non-Tribal-transferee before the
6th day of July 1974, after such transferee was rendered
landless by reason of acquisition of his land for a public
purpose, then only half the land so transferred shall be
restored to the Tribal-transferor".
Sub-ss. (2) to (4) contain detailed provmons for thet erms
upon which the Collector shall make an order for restoration of
lands to tribals by their non-tribal transferees under cl. (i) or cl. (ii)
of sub-s. (1) of s. 3 of the Act. Although these provisions are not
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i.P. APPELWAR v. MAHARASHTRA (Sen, J.)
235
really material for
our purposes,
we would
briefly refer to
them to show that the impugned Act makes detailed provisions
with a view to strike a balance between the mutual rights and obligations of the parties upon the making of an order for restoration
of such lands to members of Scheduled Tribes under cl. (i) or cl. (ii)
of sub·s. (I) of s. 3 and the conditions upon which it can be effected.
Sub-s. (2) provides that where any land restored to a tribal under
cl. (i) of sub-s. (I) is burdened with encumbrances, then such
encumbrances shall be transferred therefrom and attached to the
lands restored to the non-tribal or the tribal, as the case may be.
Sub·s. (3) in joins that a tribal shall notwithstanding anything contained in any Jaw for the time being in force in the State, be entitled
to restoration of lands under the section only if he undertakes to
cultivate the land personally and to pay such amount to the nontribal as the Collector may under sub-s. (4) determine. Sub-s. (4)
casts a duty on the Collector to determine in the prescribed manner
the value of the improvements, if any, where lands are restored under
cl. (i) or cl. (ii) of sub-s. (!), and the manner of its payment.
Clauses (a) to (g) thereof contain detailed provisions as to the
manner of payment. By cl. (a) it is provided that where lands are
restored under cl. (i) of sub-s. (1) i. e. where the land of a tribal
exchanged with a non-tribal is restored to such tribal, if the value
of improvements made by a tribal is found to be more, the
difference shall be paid by the non-tribal to
the tribal and
vice versa. By cl. (b) it is next provided that where the land of a
tribal transferred to a non-tribal is restored to him, the amount
payable by the tribal shall be an amount equal to 48 times the
assessment of the land or the amount of consideration paid by the
non-tribal for acquisition of tbe land, whichever is Jess plus the
value of the improvements, if any, made by the non-tribal to be
determined by the Collector. Explanation to els. (a) and (b) lays
down that the Collector in determining the value of any improvements under cl. (b) shall have regard to (i) the labour and capital
provided or spent on improvements, (ii) the present condition of
improvements, (iii) the extent to which the improvement is likely to
benefit the land during the period of 10 years next following the
year in which such determination is made, and \iv) such other
factors as may be prescribed.
CJ. (c) directs that the amount
representing the difference in the value of improvements as determined by the Collector under cl. (a) shall be payable either in a
lump sum or in such annual instalments not exceeding 12 (with
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SUPREME COUltT REl'ORTS
[19851 2 s.c.:k.
simple interest a 4! % per annum) as the Collector may determine.
Cl. (d) enjoins that where land in restored to a tribal under cl. (i)
of sub-s. (1) i. e. in case of restoration of the land exchanged, the
tribal shall pay to the non-tribal or other person claiming encum·
brances, the amount determined under sub-s. ( 4) either in lump sum
or in such annual instalments not exeeeding 12 (with simple interest
at 4!3 per annum) as the Collector may determine. Cl. (e) provi·
des for apportionment of the amount determined under cl. (b)
among the transferee and the persons claiming encumbrances in the
manner provided therein.
Cl. (f) provides that during any period
for which payment of rent is suspended or remitted under the
relevant tenancy law, the tribal or non-tribal shall not be bound to
pay the amount in lump sum or the amount of any instalment fixed
under sub-s. (4) or interest thereon, if any.
Cl. (g) is the exigibility
clause. If the tribal or the non-tribal, as the case may be, fails to
pay the amount in lump sum or remains in arrears of two or more
instalments, the amount so remaining unpaid (with interest thereon
at 4!% per annum) shall be recoverable by the Collector as arrears
of land revenue. The amount so recovered shall be paid by the
Collector to the non-tribal and persons claiming encumbrances, if
any, or as the case may be, the tribal.
S.4 of the Act is in these terms :
"4. Where any land of a Tribal is, at any time on or
after the !st day of April 1957 and before the 6th day of
July 1974, purchased or deemed to have been purchased or
acquired under or in accordance with the provisions of the
relevant tenancy law by a non-Tribal-transferee or where
any acquisition has been regularised on payment of penalty
under such law and such land is in possession of a nonTribal-transferee and has not been put to any non-agricul·
tural use on or before the 6th day of July 1974, then the
Collector shall, notwithstanding anything contained in any
law for the time being in force, either suo motu at any time
or on an application by the Tribal made within three years
from the commencement of this Act and after making snch
inquiry as he thinks fit, direct that the land shall, subject to
the provisions ofsub-s. (4) ofs. 3, be restored to the Tribal
free from all encumbrances and that the amount of purchase price of a proportionate part thereof, if any, paid by
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L.P. APPELWAR v. MAHARA5HTllA (Sen, J.)
237
such non-tr bal-transferee in respect of such land in accordance with the relevant tenancy law shall be refunded to
such non-Tribal-transferee either in lump sum or in such
annual instalments not exceeding twelve (with simple interest at 4t% per aunum) as the Collector may direct. The
provisions of clauses (d), (e), (f) aud (g) of sub-s. (4) of s. 3
shall, so far as may be, apply in relation to the recovery of
the amount from the Tribal and payment thereof to the
non-Tribal-transferee and the persons claiming encumbran-
- ces, if any".
It also contains a proviso which is in terms identical with the
proviso to sub-s. (I) of s. 3 and also serves the same purpose.
Under the scheme of the Constitution, the Scheduled Tribes
as a class require special protection agaihst exploitation. The very
existence of Scheduled Tribes as a distinctive class and the preservation of their culture and way of life based as it is upon agriculture
which
is inextricable linked with ownership of land, requires
preventing an invasion upon their lands. The impugned Act and
similar measures undertaken by different States placing restrictions
on transfer of lands by members of the Scheduled Castes and
Tribes are aimed at the State Policy enshrined in Art. 46 of the
Constitution which enjoins that "The State shall promote with
special care the educational and economic interests of the weaker
sections of the people and in particular of the Scheduled Castes and
Tribes and shall protect them from social injustice and all forms of
exploitation". One has only to look at the artlessness, the total
lack of guill, the ignorance and the innocence, the helplessness,
the economic and the educational backwardness of the tribals pitted
against the artful, usurious, greedy land grabber and exploiter
invading the tribal area from outside to realize the urgency of the
need for special protection for the tribals if they are to survive and
to enjoy the benefits of belonging to the 'Sovereign, Socialist,
Secular, Democratic Republic' which has vowed to secure to its
citizen 'justice, social, economic and political' 'assuring the dignity
of the individual'. The great importance which the Founding
Fathers of the Constitution attached to the protection, advancement
and prevention of exploitation of tribal people may· be gathered
from the several provisions of the Constitution. Apart from Art. 14
Whlch, interpreted positively, must promote legislation to protect
and further the aspirations of t!Je weak and oppressed, including the
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SUPREME COURT REPORTS
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tribal, there are Arts. 15 (4) and 16 (4) which make special provision for reservation in Government posts and admissions to educational institutions. Even the Fundamental Rights guaranteed by
Art. 19 (I) (d) and (e), that is, the right to move freely throughout
the territory of India and the right to reside and settle in any part
of the territory of India are made expressly subject to reasonable
restrictions for the protection of the interests of any Scheduled
Tribe. The proviso to Art. 275 specially provides for the payment
out of the Consolidated Fund of India as grants-in-aid of the
revenues of a State such capital and recurring sums as may be
necessary to meet the cost of development schemes for the promotion of the welfare of the Scheduled Tribes in the State. Art. 330
provides for reservation in the House of the people for the
Scheduled Tribes. Art. 332 provides for the reservation of seat for
the Scheduled Tribes in the Legislative Assemblies of the States.
Art. 335 specially directs that the claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts
in connection with the affairs of the Union or of the State. Art.
343 (2) empowers the President to specify the tribes or tribal
communities or parts of them which shall be deemed to be Scheduled Tribes for the purpose of the Constitution. Arts.