2009 Supreme(SC) 1277

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
State of Kerala & Others
Versus
Peoples Union for Civil Liberties, Kerala State Unit & Others
CIVIL APPEAL NOS. 104-105 of 2001 WITH CIVIL APPEAL NO. 899 OF 2001 AND CIVIL APPEAL NO. 7079 OF 2001
Decided on : 21-07-2009

IMPORTANT POINTS
Provisions of the 1999 Act are intra vires.
Provisions of 1975 Act relating to non-agricultural land owned by Scheduled tribe people could not be repealed by 1999 Act.
Statutory provisions must be interpreted in the light of the constitutional provisions.
The 1999 Act is more beneficial to the members of the Scheduled Tribe than the 1975 Act.
Doctrine of ‘Colourable Legislation’ discussed.
Repeal and amendment distinguished.
Extension of period of limitation is not permissible in an area not declared as Scheduled area.
Statutory rights and Constitutional rights distinguished.

Headnote:(a) Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Act No.31 of 1975) – Constitutional validity – Constitution of India – Ninth Schedule r/w Article 31B – Act included in Ninth Schedule by Constitution 40th Amendment Ac, 1976 – Validity upheld by High Court – Statutes of other States on the subject, though not identical held valid – Act 1975 is constitutionally valid. (Para 58)

       1989 (1) KLT (Short Note Case No.58) at 37; 1994 (2) KLT 25 – Cited with approval

       (1984) 3 SCC 301; (1985) 1 SCC 479; (1988) 3 SCC 433; (1997) 8 SCC 191 – Referred

       (b) Interpretation of statute – Doctrine of ‘Colourable Legislation’ – Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 – Enacted in terms of Entry 18 List II of the Constitution – High Court upholding legislative competence of Legislature of the State of Kerala to enact the Act – Still holding the enactment to be colourable legislation – Not proper – Doctrine attracted on lack of legislative competence – Not on amendment purporting to nullify an earlier Act – No motive can be attributed to Legislature for enacting a particular statute – Doctrine not attracted in the case of Act, 1999. (Para 64, 65, 67, 68, 69, 86)

       (1954) 1 SCR 1; (1977) 4 SCC 98 – Relied upon

       (c) Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 – Constitutional validity – Constitution of India – Entry 51, List II, Seventh Schedule – High Court holding that State Legislature had necessary legislative competence for enacting the Act – Further holding that the State legislature had transgressed the limitations of its constitutional power and the transgression may be disguised, covert or indirect – High court failing to distinguish between power of a law making authority and that of a legislative authority – While power of a law making authority is of a qualified character, power granted to a legislative authority is absolutely without any limitation and restriction, being plenary in character – A statute enacted within legislative competence of the State, could be declared ultra vires only if violative of the provisions of Part III of the Constitution of India or any other provisions thereof – Not on the ground of colourable exercise of power or mala fide on the part of the legislature. (Para 74, 75, 76)

       (2005) 4 SCC 214 – Relied upon

       AIR 1954 SC 119; AIR 1962 SC 1563 – Distinguished

       (d) Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 – Validity – A statute depriving from his right to property without compensation – May be violative of Article 300A of the Constitution – Cannot be held to be colourable legislation on that ground alone. (Para 79)

       AIR 1966 SC 1571 – Referred

       AIR 1961 SC 552 – Distinguished

       (e) Interpretation of statute – Constitutional validity – High Court making incidental observation that right and protection to tribal people granted by constitution and ensured by 1975 Act could not be denied by 1999 Act – Not a relevant question for deciding validity of 1999 Act – Superior courts are required to pose unto themselves the right question – Validity of statute has to be tested on the touchstone of whether it has been enacted to achieve the constitutional goal set out not only in Part III of the Constitution of India but also Part IV and IVA. (Para 81, 82, 83)

       (f) Constitutional and statutory rights – Statutory rights being part of the expansive regime of Article 21 of the Constitution may be said to be constitutional in nature/origin – But they cannot be elevated to the status of constitutional rights – Rights conferred by a statute can be taken away by another statute – State may change its legislative policy having regard to ground realities and changing societal conditions – Legislature should keep pace with changing times. (Para 84, 85)

       (g) Constitution of India – Seventh Schedule, List II, Entry 49 – Act 1999 strictly within purview of Seventh Schedule, List II, Entry 49 – President’s assent not required – High Court wrongly observing that Act 1999 was enacted to bypass President’s assent – Act 1999 having enacted under List II, Article 254 which applies only in case of enactments under List III not attracted. (Para 88, 89)

       (h) Constitution of India – Article 226 – High Court directing determination of applications filed by members of scheduled tribes in terms of provisions of 1975 Act – Cannot be construed as writ of mandamus restoring the lands in question – Writ of mandamus conferring right upon person(s) and direction for implementation of Act – Distinction – Writ of mandamus attaining finality has to be obeyed despite enactment of subsequent Act – Instantly no such mandamus was issued – Adjudication did not attain finality. (Para 100, 102, 115)

       (1978) 2 SCC 50 – Distinguished

       (2008) 5 SCC 1; (1996) 7 SCC 637; (2003) 5 SCC 23; (2005) 12 SCC 752 – Referred

       (i) Interpretation of statute – Validating statute – A new Act removing the very basis on which the Court invalidated a previous Act – Immaterial whether it is called validating Act or not – Instantly 1975 Act was not invalidated – Hence 1999 Act is not a validating Act. (Para 107)

       (2003) 5 SCC 298 – Relied upon

       (j) Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 – Section 5 and 9 r/w Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 – Members of Scheduled tribe selling their land to non-tribal people – No legal bar before 1986 made applicable from 1982 – Restoration – Procedures – Restoration possible only after consideration amount is paid back to vendees – Vested rights in their lands accrues to such tribal people only after such restoration, not before – Provisions of 1975 Act deserve strict construction. (Para 121, 122)

       (2008) 4 SCC 649; 2009 4 SCALE 34 – Relied upon

       (k) Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 – Section 5 and 9 – No territory in State of Kerala declared as Scheduled Area – Therefore other Acts like Limitation Act, 1963, Transfer of Property Act, 1882 and Specific Relief Act, 1963 apply despite the transaction being invalidated by a later Act – Thus a non-tribal purchasing land from a tribal person or being in possession for more than 12 years before the 1975 Act gets an indefeasible right – Such indefeasible right cannot be taken away without paying compensation. (Para 124, 134)

       (1984) 3 SCC 301; (1985) 1 SCC 479; (1988) 3 SCC 433; (1994) 3 SCC 536; (1996) 10 SCC 533 – Relied upon

       (l) Limitation Act, 1963 – Section 14 – Extension of period of limitation – Permissible in declared Scheduled Area – Not permissible in an area not declared as Scheduled area – Not contrary to Article 14 of the constitution. (Para 134, 135)

       (m) Interpretation of statute – Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 – State taking ground realities and change in situation into consideration – Consulting large number of tribal organisations – Enacting Act 1999 on consensus – Not arbitrary or violative of Article 14 (Para 137, 138)

       (n) Administration of Justice – Judicial review – Superior Court would not ordinarily determine the merit of the legislation – Such inquisitorial inquiry is beyond the province of the court. (Para 140, 141)

       (o) Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 – Question of restoration of land to tribal people – Should be considered on the touchstone of Article 46 of the Constitution – Act seeking to achieve balance of interest between tribals and non-tribals – Provisions of the Act are intra vires. (Para 166, 167)

       (2000) 10 SCC 664; (2002) 2 SCC 333; (1997) 8 SCC 191 – Relied upon

       (p) General Clauses Act, 1897 – Sections 6(1) and 7 – Repeal – High Court striking down section 22 of Act, 1999 repealing Act 1975 – Thereby holding that effect must be given to the right accrued under Act, 1975 – Act 1999 repealed Act 1975 only for certain purposes – Section 22(2) upholding certain actions taken under the 1975 Act as if taken in terms of 1999 Act – Only those laws which are in derogation of the provisions of the 1999 Act would stand repealed. (Para 171, 176)

       AIR 1963 SC 928 : [1963] Supp (2) SCR 435; [1965] 2 SCR 421; (2002) 2 SCC 645; (1974) 2 SCC 376; (1985) 1 SCC 641 – Referred

       (q) Legislative law – Repeal – Subsequent enactment wiping off the former enactment – Pro tanto repeal – Subsequent enactment merely modifying former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation – Not a repeal. (Para 186)

       (2007) 5 SCC 447 – Relied upon

       (r) Constitution of India – Seventh Schedule, Entry No. 49, List II and Entry 6, List III – Non-agricultural land – Enactment in regard to – Power of State legislature limited to Entry 49, List II relating to agricultural land – Non-agricultural land covered by Entry 6, List III – Beyond powers of State Legislature – Hence provisions of 1975 Act relating to non-agricultural land owned by Scheduled tribe people could not be repealed by 1999 Act. (Para 191)

       Facts of the case:

       Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis-à-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.

       The State of Kerala enacted the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 with the object of providing restriction on transfer of land by Members of Scheduled Tribes in the State of Kerala and for restoration of possession of lands alienated by such members and for matters connected therewith.

       The said Act received the assent of the President of India and was included in the Ninth Schedule of the Constitution of India, being item No.150. However, only on 24th January, 1986 a Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982.

       Kerala Scheduled Tribes (Restriction on Transfer of lands and Restoration of Alienated Land) Rules, 1986 were framed for effective implementation of the 1975 Act.

       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.

       One Dr. Nallathampy Thera filed a writ petition praying 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 and dispose of the applications filed therein. The application was disposed of calling upon the State to give directions to the Authorities under the 1975 Act to dispose of the applications pending before them within 6 months from the said date.

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

       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.

       On or about 13th August, 1996 the High Court issued directions for actual restoration.

       An intra court appeal was preferred thereagainst. The matter was referred to a Full Bench.

       The Full Bench on 21st May, 1998 granted six months time to the State for carrying out the restoration, without prejudice to the right of the Government in considering the various aspects of the matter to bring forward suitable legislation with suitable changes, if they so desire.

       On or about 23rd November, 1998 an application for initiating proceedings under the Contempt of Courts Act, 1971 was filed against the State and its officers on the premise that orders of the High Court had not been complied with.

       High Court extended the time by three months directing that the State shall introduce the Bill in the Assembly and complete all the other formalities within the time granted.

       The Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999, which deals with transfer and alienation of agricultural lands.

       Constitutional validity of the 1999 Act, specially the proviso appended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged by filing two writ petitions.

       By reason of the impugned judgment and order the High Court declared the aforesaid provisions as ultra vires.

       Finding of the Court:

       Provisions of the 1999 Act are intra vires.

       Provisions of 1975 Act relating to non-agricultural land owned by Scheduled tribe people could not be repealed by 1999 Act.

       Result:

       Civil Appeal Nos. 104-105 of 2001 and 899 of 2001 allowed in part.