# STATE OF KERALA AND ANOTHER v. PEOPLES UNION FOR CIVIL LIBERTIES, KERALA STATE UNIT AND OTHERS

- **Citation:** [2009] 11 S.C.R. 142
- **Court:** Supreme Court of India
- **Decided:** 2009-07-21
- **Case number:** CIVIL LIBERTIES, KERALA STATE UNIT AND OTHERS (Civil Appeal Nos. 104-105 of 2001
- **Bench:** S.B. Sinha, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-and-another-v-peoples-union-for-civil-liberties-kerala-state-25029
- **Pages:** 92

## Headnote

KERALA SCHEDULED TRIBES (RESTRICTION ON
C TRANSFER OF LANDS AND RESTORATION OF
AL/ENA TED LANDS) ACT, 1975/KERALA SCHEDULED
TRIBES (RESTRICTION ON TRANSFER OF LANDS AND
RESTORATION OF AL/ENA TED LAND) RULES, 19861
KERALA RESTRICTION ON TRANSFER BY AND
D RESTORATION OF LANDS TO THE SCHEDULED TRIBES
ACT, 1999:
Writ of or in the nature of mandamus issued by a High
Court directing implementation of an enactment vis-a-vis a
E subsequent legislation altering or modifying the right of the
beneficiaries under the former Act - Effect of - The 1999 Act
if given a holistic view is more beneficial to the members of
the Scheduled Tribe than the 1975 Act- Thus the 1999 Act
by no stretch of imagination can be treated to be an arbitrary
and unreasonable one -
Having regard to the studies
F 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 intra vires
- However, while enacting the 1999 Act, the State could not
have repealed a portion of the 1975 Act - Such a right
G cCJnferred on the owners of the non-agricultural lands could
not have been taken away without payment· of compensation ·
- To that extent the 1975 Act would continue to be applied -
The State has no legislative competence to repeal that portion
H
142
STATE OF KERALA v. PEOPLES UNION .FOR CIVIL 143
LIBERTIES, KERALA STATE UNIT
of the 1975 Act - Constitution of India,, Articles 14, 21, 46,
A
254, 300, 300A, Seventh Schedule - Entry 6, List Ill and Entry
49, List If.
DOCTRINES:
Doctrine of co/ourable legislation - Applicability of - In
B
the instant case, the High Court should have examined the
t
question of the constitutionality of Sections 5(1) and 5(2) of
the Kera/a Restriction on Transfer by and Restoration of
Lands to the Scheduled Tribes Act, 1999 and not on the
premise that the said provisions are co/ourable in nature -
c
Constitution of India, Articles 14 and 21.
Members of Scheduled Tribes filed applications for
restoration of their lands i,n the year 1988 in terms of the
l<erala Scheduled Tribes (Restriction on Transfer of o,
-\,
Lands) Act, 1975 and the Rules of 1986 made under the
Act. Since the Act was not implemented in letter and spirit,
a writ petition was filed and the High Court disposed of
the same calling upon the State to give directions to the
Authorities under the 1975 Act to dispose of the
E,
applications pending with them within six months.
Extensions of time were sought for and two years had
elapsed. Another application for time was filed and the
·'I
High Court granted a further period of six months but
issued certain directions for monitoring the progress of
F
the implementation of the Act. The pending applications
were disposed of by directing restoration of lands.
Actually no restoration of land was effected. The writ
petitioner filed another application. On an assurance
given by the State, the High Court issued certain
G
·directions. On an intra-court appeal, .the matter was
referred to Full Bench which granted a stay relying on or
on the basis of a statement made before the Court that
amendments to the 1975 Act were proposed to be made.
Later, the stay order came to be vacated as the President
H
144
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A of India· declined to give assent to the Bill passed by the
Legislature of Kerala. Again, the High Court granted time
for six months to carry out the direction without prejudice
to the right of the Government in considering the various
aspects of the matter to bring forward suitable legislation
B with suitable changes. Since the abovesaid orders were
not complied with, an application under Contempt of
Courts Act, 1971 was filed and notice was issued thereon.
Again state reques;ted for six months' time, assuring the
Court that a nev/I Bill would be introduced in the
c Legislative Assembly in terms whereof a permanent
solution to the problem of alienation of tribal lands from
1.1.1960 to ,1.1.1986 would b

## Text

_Characters 0–39,942 of 164,870. This is a partial read: ask again with offset=39942 for what follows._

A
B
[2009] 11 S.C.R. 142
STATE OF KERALA AND ANOTHER
v.
PEOPLES UNION FOR CIVIL LIBERTIES, KERALA
STATE UNIT AND OTHERS
(Civil Appeal Nos. 104-105 of 2001)
JULY 21, 2009
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
KERALA SCHEDULED TRIBES (RESTRICTION ON
C TRANSFER OF LANDS AND RESTORATION OF
AL/ENA TED LANDS) ACT, 1975/KERALA SCHEDULED
TRIBES (RESTRICTION ON TRANSFER OF LANDS AND
RESTORATION OF AL/ENA TED LAND) RULES, 19861
KERALA RESTRICTION ON TRANSFER BY AND
D RESTORATION OF LANDS TO THE SCHEDULED TRIBES
ACT, 1999:
Writ of or in the nature of mandamus issued by a High
Court directing implementation of an enactment vis-a-vis a
E subsequent legislation altering or modifying the right of the
beneficiaries under the former Act - Effect of - The 1999 Act
if given a holistic view is more beneficial to the members of
the Scheduled Tribe than the 1975 Act- Thus the 1999 Act
by no stretch of imagination can be treated to be an arbitrary
and unreasonable one -
Having regard to the studies
F 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 intra vires
- However, while enacting the 1999 Act, the State could not
have repealed a portion of the 1975 Act - Such a right
G cCJnferred on the owners of the non-agricultural lands could
not have been taken away without payment· of compensation ·
- To that extent the 1975 Act would continue to be applied -
The State has no legislative competence to repeal that portion
H
142
STATE OF KERALA v. PEOPLES UNION .FOR CIVIL 143
LIBERTIES, KERALA STATE UNIT
of the 1975 Act - Constitution of India,, Articles 14, 21, 46,
A
254, 300, 300A, Seventh Schedule - Entry 6, List Ill and Entry
49, List If.
DOCTRINES:
Doctrine of co/ourable legislation - Applicability of - In
B
the instant case, the High Court should have examined the
t
question of the constitutionality of Sections 5(1) and 5(2) of
the Kera/a Restriction on Transfer by and Restoration of
Lands to the Scheduled Tribes Act, 1999 and not on the
premise that the said provisions are co/ourable in nature -
c
Constitution of India, Articles 14 and 21.
Members of Scheduled Tribes filed applications for
restoration of their lands i,n the year 1988 in terms of the
l<erala Scheduled Tribes (Restriction on Transfer of o,
-\,
Lands) Act, 1975 and the Rules of 1986 made under the
Act. Since the Act was not implemented in letter and spirit,
a writ petition was filed and the High Court disposed of
the same calling upon the State to give directions to the
Authorities under the 1975 Act to dispose of the
E,
applications pending with them within six months.
Extensions of time were sought for and two years had
elapsed. Another application for time was filed and the
·'I
High Court granted a further period of six months but
issued certain directions for monitoring the progress of
F
the implementation of the Act. The pending applications
were disposed of by directing restoration of lands.
Actually no restoration of land was effected. The writ
petitioner filed another application. On an assurance
given by the State, the High Court issued certain
G
·directions. On an intra-court appeal, .the matter was
referred to Full Bench which granted a stay relying on or
on the basis of a statement made before the Court that
amendments to the 1975 Act were proposed to be made.
Later, the stay order came to be vacated as the President
H
144
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A of India· declined to give assent to the Bill passed by the
Legislature of Kerala. Again, the High Court granted time
for six months to carry out the direction without prejudice
to the right of the Government in considering the various
aspects of the matter to bring forward suitable legislation
B with suitable changes. Since the abovesaid orders were
not complied with, an application under Contempt of
Courts Act, 1971 was filed and notice was issued thereon.
Again state reques;ted for six months' time, assuring the
Court that a nev/I Bill would be introduced in the
c Legislative Assembly in terms whereof a permanent
solution to the problem of alienation of tribal lands from
1.1.1960 to ,1.1.1986 would be dealt with. Accordingly,
High Court extended the time limit by another three
months. Thereafter, the Kerala State Legislature enacted
the Kerala Restriction on Transfer by and Restoration of
D Lands to the Sch~duled Tribes Act, 1999 inter alia dealing
with transfer and alienation of agricultural lands. The
constitutional validity of the 1999 f\ct especially the
proviso appended to Sections 5(1), 5(2), 6 and 22 were
·E
F
challenged in writ petitions and the High Court upheld the
challenge and held the provisions to be arbitrary and
discriminatory and thus violative of Article 14 of the
Constitution. Hence the appeals.
Partly allowing the appeals, the Court
HELD: 1. The validity of 1975 Act is not in question.
It, having regard to its inclusion in the Ninth Schedule of
the Constitution of India by Constitution 40th Amendment
Ac, 1976 read with Article 318 which precludes an attack
G to the provisions of such an enactment on the ground
that it violates any provisions of Part Ill of the Constitution
of India, the validity thereof was upheld by a the Kerala
High Court in Bhavani's case.· [Para 11] [179-F-G]
Fr. Thomas Kubukkat v. Union of India, 1994 (2) KLT 25;
H
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 145
..
LIBERTIES, KERALA STATE UNIT
,.it..,
Manchegowda and others v. State of Karnataka and others,
A
(1984) 3 SCC 301; Lingappa·v. State of Maharashtra, (1985)
1 SCC 479; P. Rama Reddy v. State of A.P. (1988) 3 SCC
433 and Samtha v. State of Andhra Pradesh, (1997) 8 SCC
191, held inapplicable.
B
Madan 'Mohan Pathak v. Union of India, (1978) 2 SCC
50; Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4
t
SCC 45; Indian Aluminium Co. v. State of Kera/a, (1996) 7
SCC 637; State of Tamilnadu v. Arooran Sugars Ltd., (1997)
1 SCC 326; Baba Charan Dass Udhasi v. Mahant Basant c
Das Babaji Che/a Baba Laxmandas Udasi Sadhu (2000) 6
SCC 1 and Bhavani v. State of Kera/a, 1989 (1)_ KLT 37,
referred to.
2.1. The doctrine of 'Colourable Legislation', has no
application in the instant case. The said doctrine is
D
~·
founded on legislative competence of the State. An act
of mala fide on the part of the legislature also is beyond
the province of judicial review. In fact no motive can be
attributed to the Legislature for enacting a particular
statute. The question in regard to the constitutionality of E
the statute must be considered keeping in view only the
provisions of the Constitution. [Para 12] (182-D]
2.2. The doctrine of colourable legislation is strictly
confined to the question of legislative competence of the
F
State Legislature to enact a statute. Once it was opined
by the High Court that having regard to Entry 51, List II
of the Seventh Schedule of the Constitution of India, the
Legislature of the State of Kerala had the requisite
legislative competence to enact the 1999 Act, that should
G
have been held to be the end of the matter. The High
Court could not have, entered into the said question
~
through a side-door so as to hold that the transgression
of the limitations of constitutional power may be
disguised, covert or indirect. The High Court, has
H
146
SUPREME COURT REPORTS
(2009) 11 S.C.R.
A committed a fundamental error in failing to keep a
distinction in mind in regard to the power of a law making
authority which is of a qualified character and the power
granted to a legislative authority which is absolutely
without any limitation and restriction~_ being plenary in
s character. A statute in the event of it being held within the
ambit of the legislative competence of the State, could be
declared ultra vi res only on the premise that it is violative
of the provisions of Part Ill of the Constitution of India or
any other provisions but not on the ground of colourable
c exercise of power or mala fide on the part of the
legislature. The object, purpose or design referred to by
the High Court should be taken into consideration for the
purpose of examining its constitutionality on the
touchstone of the provisions of Part Ill of the Constitution
0 of India and not otherwise. [Para 12] [185-C-H; 186-A]
2.3. No material was placed before the High Court to
. establish that the 1999 Act was confiscatory in nature.
[Para 12] [186-C]
E
2.4. It is one thing to say that a citizen of India having
been conferred with a right on lands by reason of a
statutory provision, has been deprived therefrom without
payment of any compensation and, thus, the same would
be violative of Article 3·00A of the Constitution of India, but,
F it is another thing to say that on that ground alone the
legislation should be held to be a colourable one. [Para
12] [186-0]
2.5. The legislature had a broad object in mind.
Whether the Act stands the scrutiny of limitations of the
G State's power so as to achieve its object and purpose is
one question, but, it is another question that while doing
so it has adopted a device and a cloak to confiscate the
,.
property of the citizen taxed. [Para 12] [186-E-F]
H
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 147
LIBERTIES, KERALA STATE UNIT
J
2.6. The High Court furthermore committed a serious A
error insofar as it made an incidental observation that the
tribals who enjoy the protection of Constitution of India
and sought to be protected by the 1975 Act could not
have been denied the benefits under the 1999 Act, which
was not a relevant question. [Para 12] [187-A-B]
B
2.7. The provisions of the Constitution in this behalf
are enabling in nature. When a constitutionality of an
enactment comes to be questioned, the superior courts
are required to pose unto themselves the right question. c
The question should have been whether the statute is
valid having been enacted to achieve the constitutional
goal set out not only in Part Ill of the Constitution of India
but also Part IV and IVA thereof. [Para 12] [187-B-D]
2.8. The rights conferred upon the class of persons D
including the protected class, in terms of 1975 Act, were
statutory in nature. They cannot be categorized as plainly
constitutional rights. It is one thing to say that some rights
are constitutional in nature/origin being part of the
expansive regime of Article 21, but, it would not be E
correct to raise the same to the exalted status of
constitutional rights. A right which primarily flows from a
statute, cannot claim its constitutional pedigree to
f
become a constitutional threshold, against which
constitutionality of a statute can be tested. It is trite that F
a right which may be conferred by a statute can also be
~,
taken away by another. It is also a trite law that the State
.
is entitled to change its legislative policy having regard
to the ground realities and changing societal condition'.
In fact, the legislature is expected to take steps for G
enacting a new statute or amending the same so as to
keep pace with the changing societal condition as well
as taking into consideration the development of law, both
•
domestic and international. [Para 12] [187-D-G]
H
148 .
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A
2.9. The High Court, furthermore committed a serious
-~
error in opining that although the legislature had the
legislative competence to enact Act 12 of 1999, but
nevertheless, proviso to Sections 5(1) and 5(2) thereof
~
would be held to be colourable. The High Court should
B
have examined the question of their constitutionality on
l
~
the touchstone of Articles 14 and 21 of the Constitution
of India and not on the premise that the said provisions
are colourable in nature. [Para 12] [187-H; 188-A-B]
+
c
Dwarkadas Shrinivas of Bombay v. Sholapur Spinning
and Weaving Company Ltd. and Others AIR 1954 SC 119
and Jagannath Baksh Singh v. State of U.P. AIR 1962 SC
1563, held inapplicable.
K. C. Gajapathi Narayan Dea v. The State of Orissa
D (1954) 1 SCR 1; R.S. Joshi, Sales Tax Officer, Gujarat and
Others v. Ajit Mills Limited and Another (1977) 4 SCC 98;
'
Dharam Dutt and others v. Union of India, (2004) 1 SCC ~12;
Gujarat Ambuja Cements Ltd. v. Union of India, (·200 ) 4
SCC 214; K. T. Moopil Nair v. State of Kera/a AIR 1961 SC
E
552 and Shankaranarayana v. State of Mysore AIR 1966 SC
1571, referred to.
3. Only because the 1975 Act could be held to be in
conflict with the provisions of the Transfer of Property
F
Act, the Presidential Assent was necessary having regard
to Clause (2) of Article 254 of the Constitution of India but
once the said statute is repealed and in its place a new
~
Act is brought on the statute book, which comes strictly
'1""
within the purview of Entry 49, List II of the Seventh
Schedule of the Constitution of India, no Presidential
G Assent would be necessary. Presidential Assent would
be necessary for the purpose of amendment of the Act
and not for enacting a separate statute which came
within the purview of a different entry and a different List.
It is furthermore well-known that Article 254 of the
H
..-
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 149
LIBERTIES, KERALA STATE UNIT
Constitution of India would be attracted only in a case
A
where two statutes are enacted under the Concurrent
List, viz., one by the State Legislature and the other by
the Parliament of India, and not in any other case. [Para
13] [188-E-H; 189-A]
B
4.1. A distinction must be made between issuance of
writ of mandamus conferring right upon a person or
class of persons and the one directing implementation of .
the Act. However, in this case while the Single Judge of
the High Court issued a direction that the applications c
filed by the members of the Scheduled Tribes should be
determined by the Revenue Authorities in terms of the
provisions of the 1975 Act; the same, did not mean that
the High Court itself had issued a writ of mandamus
directing restoration of the lands in question: As in most
D
of the cases members of the Scheduled Tribes have not
been paid compensation through their vendees in terms
of the provisions of 1975 Act. They did not attain finality.
If that be so, question of invoking the decision of Madan
Mohan Pathak in the factual matrix involved herein does
not arise. [Para 14] [193-E-H; 194-A]
E
4.2. It is one thing to say that a writ of mandamus
shall be obeyed despite passing of a subsequent Act as
it had attained finality or that it had not been brought to
the notice of the Legislature, but it is another thing to say
F
that no writ of mandamus was issued conferring rights
upon the parties. Directions to implement the provisions
of the Act by itself did not confer any right upon the
parties. The lis has to be adjudicated upon. It did not
attain finality in that sense of the term. [Para 14] [194-BG
C]
..
4.3. Where a new Act is enacted removing the very
basis on which the High Court made a preceding Act
invalid; it matters not whether the same is not termed as
a validating statute or not. In this case, however, such a
H
150
SUPREME COURT REPORTS
[2009) 11 S.C.R.
._,,
1
A question do(;!s not arise as the 1975 Act was not declared
to be invalid. (Para 14] [196-F]
4.4. The Legislature can not over-rule a judgment but
it can remove the basis on which the judgment has been
B rendered. [Para 14] (197-B]
4.5. The 1999 Act removes the basis for passing of
the judgments so far as the applications for restoration
t
filed by Members of the Scheduled Tribes in regard to their
lands which was less than 2 hectares is concerned. It
c provides that the term 'land' would mean 'only
agricultural land' and the application for restoration shall
lie only in case where the extent of the land exceed two
hectares. Admittedly, the 1999 Act was made effective
retrospectively from 24th day. of January, 1986. It
D contains a Repeal and Savings clause. In that view of the
matter, it was not necessary to term the statute as a
validating statute containing a non-obstante clause. It is
difficult to conceive, having regard to the orders issued
by the Full Bench, that _the Legislature were not aware of
E the orders passed by the High Court. In any event the Full
Bench of the High Court has stated that the directions
issued by it would be subject to the new enactment. [Para
14] (197-C-G]
F
P. Venugopal v. Union of India, (2008) 5 SCC 1, held
inapplicable.
National Agricultural Coop. Marketing Federation of India ·
Ltd. v. Union of India, (2003) 5 SCC 23; Mylapore Club v.
State of T.N. (2005) 12 SCC 752; Bakhtawar Trust v. M.D.
G Narayan, (2003) 5 SCC 298 and Madan Mohan Pathak vs.
Union of India (1978) 2 SCC 50, referred to.
5.1. In a case involving members of the Scheduled .
Tribe living in Scheduled Area the period of limitation can
H
-
Jo.
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 151
LIBERTIES, KERALA STATE UNIT
be extended, but it is not permissible in respect of an
area which has not been declared to be a Scheduled
Area. When a person acquires an indefeasible right, he
can be deprived therefrom only by taking recourse to the
doctrine of Eminent Domain. If a person is sought to be
deprived of an indefeasible right acquired by him, he
should be paid an amount of compensation. In a case of
this nature, therefore, where an amount of compensation
has not actually been tendered, the vendees of the land
could not be deprived of their right to be dispossessed.
In that view of the matter, a distinction must be made
between a case where an amount of compensation has
been paid and in a case where it has not been. If a vested
right has not been taken away, the question of
applicability of Article 14 of the Constitution of India
would not arise. [Para 15] [208-8-D]
5.2. The High Court, however, proceeded to apply
Article 14 of the Constitution of India on the premise that
the provisions of the 1999 Act clearly seek to destroy the
right conferred on Scheduled Area by Act 31 of 1975. The
approach of the High Court being not correct, the same
cannot be sustained. [Para 15] [208-E-F]
Southern Petrochemical Industries Co. Ltd. v. Electricity
Inspector & ETIO (2007) 5 SCC 447; Kusumam Hotels
Private Limited v. Kera/a State Electricity Board and Others
(2008) 13 SCC 213; State of Punjab and Others v. Bhajan
Kaur and Others (2008) 12 SCC 112; Vimlaben Ajitbhai Patel
v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649;
Union of India & Ors. v. Mis. Martin Lottery Agencies Ltd.
(2009 4 SCALE 34 and P. Rami Reddy and Others v. State
of Andhra Pradesh and Others (1988) 3 sec 433, relied on.
/
K. T. Huchegowda v. Dy. Commissioner (1994) 3 SCC
536 and Papaiah v. State of Kamataka (1996) 10 SCC 533,
referred to.
A
B
c
D
E
F
G
H
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SUPREME CbURT REPORTS
[2009] 11 S.C.R.
A
P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd
edition, page 4888, referred to. · .
1! h ·
'I
6.1. The tribals had been out of possession of their
lands. for decades. It was for the elected representatives
8 of the people to determine as to whether by reason of the
provisions of the 1999 Act the members of the Scheduled
Tribe would face dislocation or that it would impinae on
their culture connected with their lands. The ground
realities are presumed to be known to the State and if
anybody raises a contrary contention, it would be for him
C to bring on record sufficient materials to show so as to
enable the co~rt to arrive at a conclusion that the State's
action was arbitrary. [Para 16) [209-H; 210-A-C]
6.2. It is furthermore a well-settled principle of law
D that the s,uperior court in exercise of their power of judicial
review of legislation would not ordinarily determine the
merit of the legislation by entering into a broad question
as to whether materials placed before the Legislature
were sufficient for bringing out the legislation in question
E or not. Such inquisitorial inquiry on the part of the court
is beyond the province of the court. [Para 16) [210-C-D]
7.1. Broadly speaking the provisions of the 1999 Act
are more beneficial to the members of the Scheduled
Tribe. For determining the said question, one must take
F a holistic view of the matter. However, this Court is not
oblivious of the fact that restoration in respect of nonagricultural land and to the extent of 2 acres are not
contemplated by the 1999 Act. So also on the basis of the
statistics furnished by the State itself that a large number
G of members of the Scheduled Tribe would be deprived of
the benefit of restoration of their own lands constituted
in forest areas. [Para 17) [214-A-C]
7.2. The State has clearly brought on record the fact
H
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 153
LIBERTIES, KERALA STATE UNIT
f'
that it had conducted further studies wherefrom it came
A
to learn that about 12,000 tribal families in the State did
not possess any land of their own and 30,000 families did
not have any house of their own. It is necessary, to bear
in mind that the law postulates grant of compensation in
a case where the right on a land is sought to be taken
B
away. The 1975 Act postulates grant of compensation to
the alienees, the amount wherefor was required to be
, determined by a competent authority. The amount of
compensation so determined was to be paid by the
members of the Scheduled Tribe to their vendees in c
respect whereof he was to take loan from the State. The ·
amount of loan taken was, thus, required to be repaid.
The 1999 Act, however, provides for a grant which need
not be repaid. [Para 17] [215-8-E]
-f
D
'
7 .3. The members of the Scheduled Tribe were further
to get one acre of land from.the State although they might
have transferred even 5 OJ'-10 cents of land. In the case
.
~
of a transfer made upto--t:Wo acres, he is to be allotted two
acres of land by the State. Whether such land is available
with the State Government or not is a different question.
E
The statute also contemplates building of houses for the
members of the Scheduled Tribes. It provides that the
land to the extent of one acre also be provided to the
. landless tribals. It contemplates constitution of a
rehabilitation fund. The 1999 Act, therefore, if given a
F
,
holistic view, is more beneficial to the members of the
Scheduled Tribe than the 1975 Act. If the State
contemplated a legislative policy for grant of more
benefits to a. vast section of people, taking care of not
only restoration of land but those who have not G
transferred any land at all or otherwise landless, the
statute by no stretch of imagination can be treated,to be
an arbitrary and_an unreasonable one. [Para 17] [215-:.EH; 216-A]
H
A
154
SUPREME COURT REPORTS
[2009] 11 S.C.R.
8.1. The cut-off date in terms of the 1975 Act was
1.01.1960. Any transaction which had taken place
between 1960 and 1975 and thereafter had been declared
invalid. Admittedly, even after the provisions thereof
having been given full effect, the members of the
3 Scheduled Tribe had not been put in possession of their
own land for decades. Furthermore, the members of the
Scheduled Tribe are educated and one can safely
presume that most of them are serving various
institutions i!l the State of Kerala and/ or in other parts
c of India. 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
0 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.
E 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
F plains of the Southern regions must be borne in mind.
[Para 18) [224-D-H; 225-A]
8.2. This Court is satisfied that the legislature of
Kerala kept in view the necessity of protecting the interest
G 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
H
•
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 155
LIBERTIES, KERALA STATE UNIT
and non-tribals which has been sought to be achieved,
A
the provisions of the 1999 Act are intra vires. [Para 18]
[225-8-C]
Narmada Bachao Ando/an v. Union of India and Others
(2000) 10 SCC 664; Ba/co Employees' Union (Regd.) v.
Union of India and Others (2002) 2 SCC 333 and Samatha
B
v. State of A.P. (1997) 8 SCC 191, referred to.
Tribes of Kera/a - Identity Crisis by Rayson K. Alex and
Article 12 of the ILO Convention No. 107, referred to.
9. Keeping in view the promises made by the 1999
C
Act, it is obligatory on the part of thet 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 this Court
has no doubt in its mind that the State in all situations o
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. It is also
made clear that while allotting land to the members of the
Scheduled Tribe, the State cannot and must not allot E
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 for
F
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
from date. [Para 19] [225-G-H; 226-A-D]
10.1. There exists a distinction between a statutory
rule and a Legislative Act. The Legislature did not want
G
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
H
156
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A 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. [Para 20] [227-H; 228-AB]
B
10.2. Repeal of a statute, it is well known, is not a
matter of mere form but one of substance·.:lt, however,·
depends upon the intention of the legisl1ature. If by
reason of a subsequent statute, the legislature intended
to abrogate or wipe off the former enactment, wholly or
C 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
o modification would not amount to a repeal. In this case,
however, the repealing clause is clear and unambiguous~·
[Para 20] [231-F-G; 232-B]
'
A. T.B. Mehtab Majid & Co. v. State of Madras, AIR 1963
SC.928 = [1963] Supp (2) SCR 435; B.N. Tiwari v. Union of
E India and others, [1965] 2 SCR 421; West U.P. Sugar Mills
v. State of U.P., (2002) 2 SCC 645; Mohd. Shaukat Hussain
Khan v. State of A.P., (1974) 2 SCC 376 and Indian Express
Newspapers ·v. Union of India, (1985) 1 SCC 641, relied on.
F
11. Classification between agricultural and nonagricultural land is a valid one. It is, however, accepted
that all forest areas comprise of the agricultural land. The
State has admittedly no legislative competence to enact
a legislation in exercise of its power of Entry No. 49, List
II of the Seventh Schedule of the Constitution of India in
G relation to non-agricultural land. It exists only in terms of
Entry 6, List Ill of the Seventh Schedule of the
Constitution of India. While enacting the 1999 Act, the
State could not have deprived the persons who hold nonagricultural land, having enacted the 1975 Act and, thus,
H
+
..
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 157
LIBERTIES, KERALA STATE UNIT
could not have repealed a portion thereof. Once they
A
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 nonagricultural land, therefore, could not have been taken
8
away without payment of compensation. Jo that extent
the 1975 Act would continue to be applied. The State has
no legislative competence to repeal that portion of the
1975 Act. [Para 21] [232-C-E; G-H; 233-A-B]
Case Law Reference:
c
(19]8) 2 sec 50
referred to
Para 6
(1983) 4 sec 45
referred to
Para 8
(1996) 1 sec 637
referred to
Para 8
D
(1997) 1 sec 326
referred to
Para 8
(2000) 6 sec 1
referred to
Para 8
1989 (1) KLT 37
referred to
Para 11
E
1994 (2) KLT 25
held inapplicable
Para 11
(1984) 3 sec 301
held inapplicable
Para 11
i
(1985) 1 sec 479
held inapplicable
Para 11
(1988) 3 sec 433
held inapplicable
F
Para 11
(1997) a sec 191
held inapplicable
Para 11
AIR 1954 SC 119
held inapplicable
Para 12
AIR 1962 SC 1563
held inapplicable
Para 12
G
(1954) 1 SCR 1
referred to
Para 12
(1977) 4 sec 98
referred to
Para 12
(2004) 1 sec 112
referred to
Para 12
H
•
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SUPREME COURT REPORTS
(2009] 1'1· S.C.R.
A
(2005) 4 sec 214
referred to
Para 12
....
AIR 1961 SC 552
referred to
Para 12
AIR 1966 SC 1571
referred to
Para 12
B
(2008) 5 sec 1
held inapplicable
Para 14
(2003) 5 sec 23
referred to
Para 14
(2005) 12 sec 752
referred to
Para 14
~-
(2003) 5 sec 298
referred to
Para 14
c
(2001) 5 sec 447
relied on
Para 15
(2008) 13 sec 213
relied on
Para 15
(2008) 12 sec 112
relied on
Para 15
D
(2008) 4 sec 649
relied on
Para 15
'
(2009 4 SCALE 34
relied on
Para 15
(1988) 3 ,sec 433
relied on
Para 15
E
(1994) 3 sec 536
referred to
Para 15
(1996,) 10 sec 533
referred to
Para 15
(2000) 1 o sec 664
referred to
Para 18
F
(2002) 2 sec 333
'
. referred to
Para 18
(1997) 8 sec 191
referred to
Para 18
AIR 1963 SC 928 =
[19G3] Supp (2) SCR 435 relied on
Para 20
G
[1965] 2 SCR 421
relied on
Para 20
(2602) 2 sec 645
relied on
Para 20
l.
(1974) 2 sec 376
relied on
Para 20
\ i
H
(1985) 1 sec 641
relied on
Para 20
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 159
LIBERTIES, KERALA STATE UNIT
CIVIL APP ELLA TE JURISDICTION : Civil Appeal Nos.
A
104-105 of 2001.
From the Judgment & Order dated 24.08.2000 of the High
Court of Kerala at Ernakulam in OP Nos. 26499 & 25332 of
1999.
B
WITH
C.A. Nos. 899 & 7079 of 2001.
T.L.V. Iyer,. T.S. Doabia, Rajinder Sachar, G. Prakash, c
Dayan Krishnan, Gautam Narayan, Nikhil Nayyar, Sunita
. Sharma. Si1weta Garg, K.R. Sasiprabhu, Sanjay Parikh, Jitin
Sahni, A.N. Singh, Anil Shrivastav, Ax Varghese, Baby
Augustine, Jojo A.V., Caveator-ln-Person, Asha G. Nair and
Ashish Gopal Garg for the appearing parties.
D
The Judgment of the Court was delivered by
S.B. SINHA, J.
ISSUE
E
1. Effect of a writ of or in the nature of mandamus issued
by a High Court directing implementation of an enactment visa-vis a subsequent legislation altering or modifying the right of
the beneficiaries under the former Act, inter alia, is the question
involved in these appeals.
F
They arise out of a judgment and order dated 24th August,
2000 passed by a Division Bench of the High Court of Kerala
at Ernakulam.
BACKGROUND FACTS
G
..
2. 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
H
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160
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A land by Members of Scheduled Tribes in the State of Kerala
_,,
and for restoration o( 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,
8 being item No.150, by the Constitutional 40th Amendment Act.
It was published ln the Kerala Gazette Extraordinary on 14th
November, 1975. However, only on 24th January, 1986 a
/o-·
c
Notification was issued bringing the said Act into force with
retrospective effect from 1st January, 1982.
RULES UNDER THE SAID ACT
3. Kerala Scheduled Tribes (Restriction on Transfer of
.lands and Restoration of Alienated Land) Rules, 1986 (1986
0
Rules) were framed for effective implementation of the 1975
Act and Were published in the Kerala Gazette Extraordinary on
18th Oct0ber, 1986.
PROCEEDINGS
E
4. Members of the Scheduled Tribes filed applications for
restoration of their lands in the year 1988 in terms of the
:<
provisions of the 1975 Act and the 1986 Rules.
-l~~s the said Act was not implemented in letter and spirit,
-
c - one Dr. Nallathampy Thera filed a writ petition which was
,.,g -marked as O.P. No.8879of1988 praying inter alia for issuance
of a Writ of Mandamus compelling the State to implement the
provisions of the Act and directing the concerned authorities
to deal with e1ndc·dispose of the applications filed therein.
Before the High Court the learned Additional Advocate General
G appearing for the State submitted that :
H
"utmost steps would be taken for the disposal of the
applications and that the Act would be enforced in all its
rigour."
"
'
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 161
LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.]
y
Relying on or on the basis of the said statement, O.P. No.
A
8879 of 1988 was disposed of by the High C0urt 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.
B
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 directi'ons. By the said process, a
period of two years lapsed.
c
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.
D
The said conditions are as under:-
"(i)
The State shall ensure that all the applications are
disposed of within the extended time.
E
(ii)
The State shall immediately communicate copies
of this order to the Revenue Divisional Officers of
all the Districts for compliance.
-i
(iii)
The Authorities under the Act, i.e., the Revenue
F
Divisional Officers of the concerned Districts shall
file affidavits before this court once in a month
showing the progress achievedin the disposal of
applications during that month. iThe first of these
affidavit showing the progress-made until
G
31.12.199_5 shall be filec;I. 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
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SUPREME COURT REPORTS
[2009] 11 S,C.R.
A
support to the Revenue Divisional Officers to
""
complete the work within the. extended time now
granted.
(v)
The State or any of the Revenue Divisional Officers
B
shall be at liberty to approach this court in the event
of any difficulty being felt in disposing off the
applications.
/>-
(vi)
It is seen from the affidavit filed by the Government
that the pendency of applications in the Districts of
c
Palakkad, Wayanad, ldukki and Kottayam is
unusually large. The Revenue Divisional Officers of
t~ese Districts are directed in particular to dispose
of all the applications within the extended time."
D
Applications for restoration of lands which were pending
were disposed of pursuant to the said directions. Appeals were
·/.
filed in a f~w cases but in most of them the orders directing
restoration of lands became final.
1--
E
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.
""
The learned Additional Advocate General once again gave
F an assurance that the order of the authorities under the 1975
Act would be implemented. On or about 28th March, 1996 the
High Court directed :-
"The learned Additional Advocate General assures the
court that all out efforts will be made to dispose of all the
~ ,
G
pending applications within the time stipulated by this court
I
and further that wherever there has been final orders
~
passed, actual restoration will also be formal orders are
!>
~
necessary today. Post on 31.5. 1996."
-1
H
(emphasis supplied)"
STATE OF KERALA v. PEOPLES UNION FOR CIVIL 163
LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.]
Further affidavits were filed by the Revenue Divisional
A
Officers reporting progress in the disposal of the applications
made under the Act.
On or about 13th August, 1996 the High Court issued the
following directions :-
B
~
"(1) The Revenue Divisional Officers are directed to cause
, 1elivery of the properties covered by orders for restoration
against which, no appeals are pending and in which no
compensation is payable, forthwith and in any event within c
six weeks from today.
(2) In view of the submission that the officers are meeting
with resistance in restoring possession the State and the
District Superintendents of Police of all Districts are
directed to afford the needed protection to the Revenue
D
Divisional Officers to carry out their duty of restoring
possession to the Tribals ..
(3) The State and the Collectors of the various Districts are
directed to make available to the Revenue Divisional
E
Officers the necessary man power and support to carry out
the implementation of the orders for restoration passed
under the Act.
(4) The Revenue Divisional Officers will file statements
before this court by 30.9.1996 reporting compliance with
F
direction No.1"
\
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
G
the Court that amendments to the 1975 Act were proposed to
{
be made.
,
However, as the President of India declined to give his
assent to the Bill passed by the Legislature of the State of
Kerala for amendment of the said Act, the order of stay was
H
164
SUPREME COURT REPORTS
[2009] 11 S.C.R.
A vacated.
The Full Bench on 21st May, 1998 passed the following
order:-
" Heard learned Additional Advocate General, Mr. T.
B
Mohammed Youseff and Mr. AX. Varghese, Advocate.
The above application is filed to extend the order of stay
granted in the Writ Appeal for a further period of six
months from 21.5.1998. This Court granted the interim
order of stay since at the time the Bill passed by the
C
Legislative Assembly of the State of Kerala was pending
consideration before the Hon'ble President of India. It is
now stated in the ~ffidavit that the Hon'ble President of
India has declined assent to the Bill passed by the State
Legislative Assembly. In the light of the Hon'ble President
D
of India having declined assent to the Kerala Scheduled
Tribe (Restriction oh Transfer of Lands and Restoration of
Alienated Lands)Amendment Act, 1996, there is no
justification for .this court extending the order to stay
E
F
G
H
granted earlier. The interim stay granted earlier is vacated.
2. The learned Single .Judge, while disposing of C.M.P.
No. 28950 of 1995 in O.P, 8879 of 1988, was pleased to
grant time till 30.9.1996 for reporting compliance with
direction No.1 in the order.