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

The Judgment of the Court was delivered by

S.B. SINHA, J.

ISSUE E

1Copy pinpoint1. Effect of a writ of or in the nature of mandamus issued by a High Court directing implementation of an enactment vis- a-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 ----i

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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-·

Notification was issued bringing the said Act into force with retrospective effect from 1st January, 1982. c RULES UNDER THE SAID ACT

3Copy pinpoint3. Kerala Scheduled Tribes (Restriction on Transfer of .lands and Restoration of Alienated Land) Rules, 1986 (1986 Rules) were framed for effective implementation of the 1975 0 Act and Were published in the Kerala Gazette Extraordinary on 18th Oct0ber, 1986.

PROCEEDINGS

4Copy pinpoint4. 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 :

"utmost steps would be taken for the disposal of the applications and that the Act would be enforced in all its " ' rigour." H

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 H

162 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 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-- 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 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 six weeks from today. c (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 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 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 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 granted earlier. The interim stay granted earlier is vacated. E

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. The time was extended from time to time for compliance with the directions till the order of stay was granted. Now that the order of stay having been vacated, we grant six months time to the State for carrying out the direction contained in the order of the learned single judge dated 13th August 1996, passed in C.M.P. No. 28950 of 1995, 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."

(emphasis added) H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 165

.. LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] t On or about 23rd November, 19.98 an application for A 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. A notice was issued therein. · · · · B A petition was filed by the State for extension of the period by six months from 21st November, 1998. However, a statement was made before the Full Bench that a new Bill would be introduced before the Legislative Assembly in terms whereof a permanent solution to the problem of alienation of tribal lands which had taken place during the period from 1.1.1960 and c 1.1.1986 shall be dealt with. The Full Bench, by its order dated 6th January, 1999, directed :-

"This petition has been filed by the State to extend the time (sic) granted already by a period of six months from D 21.11.98. We have perused the affidavit and heard the arguments of both sides. We have also heard Dr. P. Nalla Thampy Thera. He opposed the petition for extension of time tooth and nail. This Court has already granted six month's time. The State has explained the reasons for its E inability to introduce the new bill within the time granted earlier. We are satisfied with the reasons given in the affidavit. It is now stated in the affidavit that the Legislative Assembly is expected to commence its next session on 22.1.99 and that the new bill formulated by the Government F will be introduced in this session. According to the Government, the new bill is expected to find a permanent solution to the problem of alienation of tribal lands which had taken for the period from 1.1.1960 to 1.1.1986. Therefore, they pray that in the interest of justice the State G may be granted extension of time to introduce the Bill in

... { this session.

2. We have considered the rival submissions and are of the opinion that in the interest of justice, the time already granted has to be extended by three months from today. H

166 SUPREME COURT REPORTS [2009] 11 S.C.R.

...... A As already noticed, the Assembly session is to commence -1 on 22.1.1999 and the State is proposing to introduce the Bill in this session.

3. In view of the above, the time already granted by this Court is hereby extended by three months from today. The B State shall introducf3 the Bill in this session of the Assembly and complete all the other formalities within the time now granted. We make it clear that there will be no further extension of time .. The State is directed to pay cost of this petition to Dr. Nalla Thampy Thera which is fixed at c Rs.5000/-, by way of demand draft drawn in his name, within three weeks from today."

(emphasis supplied)

D WRIT PROCEEDINGS -t--

5Copy pinpoint5. Indisputably the Legislature of the State thereafter enacted the Kerala Restriction on Transfer by and Restoration of Lands to the Scheduled Tribes Act, 1999 (for short 'the 1999 Act'), which inter alia deals with transfer and alienation of E agricultural lands.

Constitutional validity of the 1999 Act, specially the proviso ~ppended to Section 5(1), Section 5(2), Section 6 and Section 22 were challenged by filing two writ petitions; one marked as F O.P. No.25332 of 1999 filed by Niyamvedi, respondent No.1 in Civil Appeal No.105 of 2001 and another 0.P; No.26499 of 1999 by Peoples Union for Civil Liberties, Kerala State Unit, respondent No.1 in Civil Appeal No.104 of 2001 .

. In the aforesaid writ petitions counter-affidavits were filed G on behalf of the Union of India supporting the stand of the tribes. > Malayora Karshaka Federation (appellant before us in -~

C.A. No.899 of 2001) was impleaded as a party therein. By H reason of the impugned judgment and order dated 24th August,

168 SUPREME COURT REPORTS [2009] 11 S.C.R.

. -;. A "In the light of our discussion as above, we declare the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, Act 12 of 1999 as unconstitutional and void. We strike down B the proviso to Section 5(1), Section 5(2), Section 6 and Section 22 of Act 12of1999. We direct the State and the Authorities under Act 31 of 1975 to implement the orders for restoration passed ur:ider the Kerala· Scheduled Tribes .- (Restriction of Transfer of land and Restoration of c Alienated Lands) Act, 1975,,..Act 31 of 1975 and restrain the State and the Authorities under Act 12 of 1999 from enfprcing the proviso to S!3Ction 5(1 ), Section 5(2), Secti~n 6 and Section 22 of Act 12 of 1999."

THE APPEALS BEFORE US D ·~

7Copy pinpoint7. Civil Appeal Nos. 104-105 of 2003 have been filed by the State of Kerala against the common judgment and order dated 24th August, 2000 passed by a Division Bench of the Kerala High Court in O.P. Nos. 25332 and 26499 of 1999 filed E by Niyamavedi and Peoples Union for Civil Liberties, Kerala State Unit striking down the proviso to Section 5(1 ), Section . 5(2), Section 6 and Section 22 of the 1999 Act.

Civil Appeal No.899 of 2001 has been filed by Malayora Karshaka Federation Kerala Meenangadi (respondent No.7 F before the High Court in O.P. No.25332 of 1999) against the aforesaid order dated 24th August, 2000.

Civil Appeal No.7079 of 2001 has been filed by M. Mohan Kumar, Chief Secretary, Government of Kerala against the G order dated 4th December, 2000 passed by a Division Bench of the High Court in C.C.C. No. 542of1986 whereby the Court directed the appellant to appear before it for framing charges > against him in not complying with the final direction issued by ' ~ the Court on 18th December, 1999. H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 169

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.)

CONTENTIONS A

8Copy pinpoint8. Mr. T.L. Viswanath Iyer, learned senior counsel and Mr.Dayan Kishnan, Advocate, appearing on behalf of the appellants would submit:-

(i) The High Court committed a manifest error in ,_B holding that the 1999 Act suffers from the vice of colourable exercise of power or is otherwise mala fide despite holding that the Legislature of the State of Kerala had the requisite legislative competence ~~~ c (ii) The members of the Scheduled Tribes had no . fundamental or common law right to obtain restoration of possession of their lanqs which had already been alienated. · o (iii) Such a right having been conferred upon them by reason of the provisions of 1975 Act, the same could be taken away and/or modified or altered by reason of a subsequent Act which comes within Entry 18 of the List II of Seventh Schedule of the E Constitution of India.

(iv) Only because non.agricultural lands had been kept· out of purview of 1999 Act, the same by itself did not attract the wrath of Article 14 of the Constitution F of India..

(v) The provisions of the 1999 Act being more beneficial compared to the provisions of 1975 Act, only because the tribes would be allotted lands G outside their original habitants, the same would not attract Article 21 of the Constitution of India, particularly when they would be getting 2 hectares of land as also grant for payment of compensation to the land holder in stead and place of repayable amount of loan as provided for in the 1975 Act. H

170 SUPREME COURT REPORTS [2009] 11 S.C.R.

i A (vi) ·Keeping in view the nature of mandamus issued by the High Court in the earlier round of litigation, it would not mean that the State was not precluded from amending or repealing the 1975 Act.

(vii) The decision of this Court in Madan Mohan Pathak B (supra) and Hoechst Pharmaceuticals Ltd. v. State of Bihar, [ (1983) 4 SCC 45 ] having been explained in Indian Aluminium Co. v. State of Kera/a, [(1996) 7 SCC 637] as also a Constitution Bench of this Court in State of Tamilnadu v. c Arooran Sugars Ltd., [ (1997) 1 SCC 326 ], the impugned judgment cannot be sustained.

(viii) The tribals in whose favour the orders of restoration had been passed having not filed any writ petition, it must be presumed that they were not aggrieved lo· by the provisions of the 1999 Act, particularly in view of the fact that their association had been consulted by the Government Officials and in that view of the matter the writ petitioner - association had no locus standi to maintain the public interest litigation having regard to Baba Charan Dass Udhasi v. Mahant Basant Das Babaji Che/a Baba Laxmandas Udasi Sadhu [(2000) 6. SCC 1].

(x) In any event, a declaration by a Superior Court that F a subsequent statute is ultra vires would not wipe off the earlier statute automatically.

(xi) The purchasers· of land having acquired the prope~ies in 1950s must be held to have acquired G an indefeasible right over the same and thus the 1975 Act even to that extent was not applicable. ,)

·. Mr. Rajinder Sachar, learned senior counsel appearing on I-- behalf of respondents in C.A. Nos. 104-105 of 2001, on the other hand, would contend:- H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 171

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] (i) The 1999 Act being in the teeth of the mandamus A issued by the High Court has rightly been held to be unconstitutional in view of the fact that nothing has been brought on record to show that the 1999 Act was enacted by the legislature despite knowledge that the directions issued by the High B Court had attained finality.

(ii) The 1975 Act having conferred a right of restoration on the Members of the Scheduled Tribes, both in respect of agricultural and non-agricultural lands, the provisions of 1999 Act and in particular Section c 6 thereof having confined i's operation only to agricultural land and that to9 with retrospective effect from 24th January, 1986, must be held to be ultra vires Article 14 of the Constitution of India. D (iii) The Members of the Scheduled Tribes being mostly residents of forests and the lands restored in their favour being forest lands, no legal infirmity was committed by the High Court in holding that the tribals; the community being weakest of weak, should not be deprived therefrom having regard to their constitutional right of ·1ife as adumbrated in Article 21 of the Constitution of India . . (iv) As from the statistics furnished by the State itself it would appear that only about 1O percent of the applicants had more than 2 hectares of land, the right of restoration of the marginal farmers could not have been taken away.

(v) Once a statutory protection is granted to the beneficiaries, the same could not have been withdrawn. ......." " Mr. Verghese, learned counsel appearing on behalf of respondent No.1 in Civil Appeal No.899 of 2001 supplementing H

172 SUPREME COURT REPORTS [2009) 11 S.C.R.

A the arguments of Mr. Sachar urged: ~

(i) That the Members of Scheduled Tribes having come under attack by economically more advanced and politically more powerful ethnic groups who infiltrated into tribal regions in search of land and B new economic possibilities, keeping in view Article 46 of the Constitution of India, they were entitled to restoration of land in terms of the judgment of the ,,. High Court passed ,in O.P. No.8879 of 1988.

c (ii) Provisions of 1975 Act having been found to be constitutionally valid, the accrued and vested rights of the tribals could not have been taken away by reason of 1999 Act or otherwise.

0 (iii) The Writ-Petitioner - association having been fighting for the cause of the tribals for a long time, it cannot be said that they had no locus standi to file the public interest litigation.

(iv) Even the Union of India having supported the case E of the tribals,· there is no reason as to why this Court should interfere with the impugned judgment.

(v) The 1999 Act being not a validating statute, the impugned judgment is unassailable, particularly • F having regard to ·the objective of 1975 Act vis-a-vis 1999 Act.

(vi) It is incorrect to contend that the State before enactment of 1999 Act consulted the true representatives of the tribals. G (vii) In any view of the matter as the members of the tribal community became entitled to restoration of )

their land by reason of the provisions of the 1975 Act, there was no reason as to why the original land '- H would not be restored to them.

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 173

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] The 1975 ACT A

9Copy pinpoint9. The 1975 Act was enacted by the State in terms of Entry 6 of List Ill of Seventh Schedule of the Constitution of India.

Section 2 contains interpretation clauses defining the terms specified therein. B

Section 2(b) defines 'immovable property' to include standing crops and trees but does not include growing grass.

'Scheduled tribe' has been defined in Section 2(e) to C · mean any of the Scheduled Tribes relating to the State as specified in the Constitution (Scheduled Tribes) Order, 1950~

Section 2(g) defines 'transfer' as under :-

" 'transfer' , in relation to immovable property, means an D act by which immovable property, is conveyed to any documentary or oral transaction, whether by way of mortgage with or without possession, lease, sale, gift or exchange, or in any other manner, not being a testamentary disposition; and includes a charge, E 'vilapanayam', 'unduruthi', contract relating to immovable property, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or otherwise, voluntary surrender and abandonment.

Explanation. - For the purposes of this clause. - F

(i) "vilapanyam" means hypothecation of traps ori payment of consideration or otherwise;

(ii) "unduruthi" means an assignment of the right to G collect the usufructs available or anticipated to be available to any land during specified term for a specified price."

Section 4 imposes restrictions on transfer by providing a non obstante clause in terms whereof after the commencement H

174 ·suPREME COURT REPORTS [2009) 11 S.C.R.

A of the Act any transfer effected by a member of the Scheduled Tribe of immovable property posses~ed, enjoyed or owned by him to a person other than a member of a Scheduled Tribe, without the previous consent in writing of the competent authority, would be invalid. B Section 5 of the Act invalidated certain transfers made by tribals to persons other than tribals after the first of January, 1970 and before commencement of the Act:-

"5. Certain transfers to be invalid - Notwithstanding c anything to the contrary contained in any other law for time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any court, any transfer of immovable property possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a D mernber of a Scheduled Tribe. effected on or after the 1st day of January, 1960, and before the commencement of this Act' shall be deemed to be invalid."

Under SeCtion 6of the 1975 Actrnembers of the Schedule E Tribes became entitled to restoration of possession of the properties, transfers which stood invalidated by operation of Section 4 and Section 5 of the Act. It provided for applications to be made by the Tribals for restoration of alienated lands to the Revenue Divisional Officer within the time prescribed _therefor. The Revenue Divisional Officer was to make enquiries F and after being satisfied with the application of the Act was to direct restoration of possession to the applicant.

Section 6 which is material for our purpose, inter alia, reads as under:- G "6. Reconveyance of property - (1) Where by reasons of a transfer of immovable property which is invalid under Section 4 or Section 5, a member of a Scheduled Tribe has ceased or ceases to be in possession or enjoyment thereof he shall be entitled to the restoration of possession H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 175

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] or enjoyment, as the case may be of such property. A

(2) Any person entitled to be restored to the possession or enjoyment of any immovable property under sub-section (1) or any other person on his behalf may make an application, either orally or in writing to the Revenue 8 Divisional Officer within a period of one year from the date of commencement of this Act or such further period as may • be specified by Government by notification in the Gazette

fci) fOf restoration of possession, or enjoyment, as the case may be, of such property, if such transfer had been made; before the date of commencement of this Act.

(b) for restoration of possession or enjoyment, as the case may be, of such property and o for the prosecution ofthe person-who has procured such transfer, if such transfe(was made on or after the date of commencement of this Act."

Section 11 provides for liability to pay amount. E Section 12 provides for advancement of loan by the Government for payment of the amount ·on such terms and conditions as has been laid down under sub-sections (2) and • (3) thereof. F The Act also prescribed offences and provided for penalties etc.

Section 22 contains the rule making power.

1999 ACT G The 1999 Act was published in the Kerala Gazette -f · Extraordinary on 20th April, 1999. It was given a retrospective effect and retroactive operation from 24th January, 1986.

'Land' has been defined in 2(b) to mean any agricultural H

176 SUPREMe COURT REPORTS [2009] .11 S.C.R.

A land. 1

Section 5.of the Act reads as under:-

"5. Certain transfer to be invalid -

B (1) Notwithstanding anything to the contrary contained in ·any other law for the time being in force, or in any contract. custom or usage, or in any judgment, decree or order of. any court, any transfer of land possessed, enjoyed or >

c owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe, effected on or r after ther 1st day of January, 1960, and before the commencement of this Acf shall be deemed to be invalid: I I ,..... Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the • aforesaid period and the extent of which does not exceed t jl two hectares. )-: E (2) Notwithstanding. anything contained in sub-section ( 1) or in any judgment, decree or ord~r of any Court or other authority, in cases where the land involved in such transfer is used for agricultural purposes, the transferee thereof shall be entitled to retain in his possession the said land ... F upto an extent of two hectares which shall be demarcated by the Revenue Divisional Officer by order and in the )- manner as may be prescribed."

Section 6 providing for allotme_nt of lands reads thus:-

G "6. Allotment of lands.- Notwithstanding anything contained in section 5 or in any judgment, decree or order of any Court or other authority, a member of a Scheduled Tribe ).

who had effected any transfer of land, possessed, enjoyed or owned by him, to a person other than a member of a H Scheduled Tribe, between the 1st day of January, 1960

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 177

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.]

and the 24th day of January, 1986 and where an application for restoration of right under Section 6 of the Kerala Scheduled Tribes (Restriction of Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) has been filed before publication of this Act in the Gazette, but the possession or enjoyment thereof, has not been restored to him and such transfer has been validated by the proviso to sub-section (1) of Section 5 or the transferee thereof has been made eligible for the retention of said land under sub-section (2) of Section 5, shall be entitled to restoration of equal extent of land by way of c allotment from the Government:

Provided that where the extent of the land so allotted in respect of which there is eligibility for restoration of rights, is less than forty ares, Government shall allofthe rest of the land required to make the total extent equal to forty D ares (One acre)."

Section 8 providing for liability to pay amount reads :-

"8. Liability to pay amount.- E (1) Notwithstanding anything contained in any other law for the time being in force, where the possession or enjoyment of any land is restored to a member of a Scheduled Tribe under this Act, an amount equal to the aggregate of the actual amount of consideration received by such member at the time of the transfer and an amount determined by the competent authority for improvements, if any, made after the transfer and before such restoration shall be paid by him to the person from whom possession or enjoyment, as the case may be, was restored, in accordance with the rules made under this Act:

Provided that no amount shall be payable if the H

178 SUPREME COURT REPORTS (2009] 11 S.C.R.

i A transfer was effected on or after the commencement of this Act.

(2) The amount determined by the competent authority under sub-section (1) shall be final and shall not be called in question in any court. B t (3) The amount payable under sub-section (1)"shall be Ir- recoverable in such manner as may b'e prescribed. 1

'\ Section 10 provides for assignment of land, which reads:- c "10. Assignment of land.-

(1) Notwithstanding anything contained in Section 6 or in the Kerala Government Land Assignment Act, • 1960 (30of1960) and the rules issued thereunder, D , the Government shall assign land to the landless ,, families of the Scheduled Tribes in the State, an extent not exceeding forty ares of land. in. the district they reside within a period of two years from the date of publication of this Act in the Gazette, or such further period as may be specified by Government by notification in the Gazette, and 'in the manner as may be prescribed.

(2) Where the extent of the land in the pos$ession and ·-· J

enjoyr:nent of any family of the Scheduled Tribe in the State, is less than 40 Ares such family shall be entitled to get assigned more land which is ·necessary to make the total extent of the land equal to 40 Ares."

G Section 11 provides for constitutio·n of Scheduled Tribe Rehabilitation and Welfare Fund and utilization thereof.

Section 21 provides for power to make Rules.

Section 22 is the Repealing and Saving clause H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 179

f LIBERTIES, KERALA STATE UNIT [S.S. SINHA, J.] It reads as under:- A

i•22. Repeal and saving.-

(1) The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) is hereby repealed. B

(2) Notwithstandii'tg the repeal of the said Act, all orders issued by the competent authority or the Revenue Divisional Officer, so far as they are not inconsistent with the provisions of this Act shall be deemed to c have been made under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. Every proceedings pending before a Court on a D complaint under Section 14 of the said Act shall be deemed as a proceeding under the corresponding provisions of this Act and shall be continued accordingly."

CONSTITUTIONAL VALIDITY OF 1999 ACT E

.. LEGISLATIVE BACKDROP

11Copy pinpoint11. The validity of .1975 Act is not in question. It, having regard to its inclusion in the Ninth Schedule of the Constitution F of India by Constitution 40th Amendment Ac, 1976 read with Article 31 B which precludes an attack to the provisions of such an enactment on th~ ground that it violates any provisions of Part Ill of the Constitution of India, the validity thereof was upheld by a leaned Single Judge of the Kerala High Court in Bhavani v. State of Kera/a, [1989 (1) KLT _(Short Note Case No.58) at G

We may also notice that Jagannadha Rao, C.J. (as His Lordship then was) in Fr. Thomas Kubukkat v. Union of India, ( 1994 (2) KLT 25] also upheld the provisions of Section 1(3) H

180 SUPREME COURT REPORTS [2009] 11 S.C.R.

A of 1975 Act stating the said provision to be conditional legislation and not a delegated legislation.

The Constitutional validity of statutes enacted for the benefit of the members of Scheduled Tribe by some other State although not identical has been uph~ld by this Court in 8 Manchegowda and others v. State of Kamataka and others, [(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 c 191 ].

These decisions have been rendered on statutes which are not absolutely identical. All of which are not in pari materia with the other.

D However, we may notice that in Manchegowda (supra) this Court held:-

"19. We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer,of the E granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right

F or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the • enactment of this Act and particularly Section 4 and Section 5 thereof, the Legislature is seeking to defeat the G defeasible right of the transferee in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled H Castes and Scheduled Tribes communities. In our opinion,

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 181

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31-A. The nature of the right of the transferee in the gr~nted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object ~nd the scheme of the present Act enacted for the benefit of the weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles c 31 and 31-A of the Constitution."

We are not concerned with the constitutional validity of 1975 Act. We would at an appropriate stage deal with the matter in regard to the effect thereof. ii D COLOURABLE LEGISLATION

12Copy pinpoint12. We have noticed hereinbefore that the Division Bench of the High Court has upheld the legislative competence of the Legislature of the State"of Kerala. We, therefore, really at pains E to understand as to how the doctrine of 'Colourable Legislation' could be invoked by the learned Judge of the High Court.

"- The doctrine of 'Colourable Legislation" is directly connected with the legislative competence of the State. Whereas the 1975 Act was enacted in terms of Entry 6 List Ill F of t~e S~venth Schedule of the Constitution of India providing for transfer of lands; the 1999 Act was enacted in terms of Entry 18 List II thereof. It reads as under:-

"18. Land, that is to say, right in or over land, land tenures, G including the relation of landlord and tenant, and the -+ ~' collection of rents; transfer and alienation of agricultural land ; land improvement and agricultural loans; \ colonization." =S The 1999 Act, thus, having confined itself to 'agricultural H

182 SUPREME COURT REPORTS [2009) 1t S.C.R.

A land', indisputably the State Legislature only has the requisite legislative competence therefor.

It is one thing to say that an enactment suffers from vice of colourable legislation on the premise that it does not have legislative competence but it is another thing to say that only 8 because the Act was amended purporting to nullify an earlier Act (in the words of the High Court), the same by itself would attract the said doctrine.

For invoking the doctrine of 'Colourable Legislation' the C legislature must have transgressed the limits of its constitutional power patently, manifestly and directly.

The doctrine of 'Colourable Legislation', in our opinion, has no application in the instant case. The said doctrine is founded 0 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 the statute must be considered keeping in view only the provisions of the Constitut1on. In K. C. Gajapathi Narayan Oeo v. The State of Orissa [(1954) 1 SCR 1), this Court held:

"9. It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power." ·

In R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit H Mills Limited and Another [(1977) 4 SCC 98), this Court held

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 183

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] as under: A

"2. A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal - in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court iri Munn v. lllinois1 viz. "that courts do 0 not substitute their social and economic beliefs for the judgment of legislative bodies". Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution. D *** *** ***

13Copy pinpoint13. Bearing in mind the quintessential aspects of the rival contentions, let us stop and take stock. The facts of the case are plain. The professed object of the law is clear. E The motive of the legislature is irrelevant to castigate an Act as a colourable device. The interdict on public mischief and the insurance of consumer interests against likely, albeit, unwitting or "ex abundanti cautela" excesses in the working of a statute are not merely an ancillary power but surely a necessary obligation of a social welfare state. One F potent prohibitory process for this consummation is to penalize the trader by casting a no-fault or absolute liability to "cough up" to the State the total "unjust" takings snapped up and retained by him "by way of tax" where tax is not so due from him, apart from other punitive impositions to deter G and to sober the merchants whose arts of dealing with customers may include "many a little makes a mickle'. If these steps in reasoning have the necessary nexus with the power to tax under Entry 54 List 11, it passes one's comprehension how the impugned legislation can be H

184 SUPREME COURT REPORTS [2009] 11 S.C.R.

A denounced as exceeding legislative competence or as a "colourable device" or as "supplementary; not complementary'."

[See also Dharam Dutt and others v. Union of India, [(2004) 1 sec 712]." 8 The principles of determining the constitutionality of statute + has been stated in Gujarat Ambuja Cements Ltd. v. Union of India, [(2005) 4 sec 214 ] thus:-

c "28. Having determined the parameters of the two legislative entries the principles for determining the constitutionality of a statute come into play. These principles may briefly be summarised thus:

(a) The substance of the impugned Act must be looked 7· D at to determine whether it is in pith and substance within a particular entry whatever its ancillary effect may be [Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR at p. 65, A.S. Krishna v. State of Madras, State of Rajasthan v. G. Chawla, Katra Educational Society v. E State of U.P., D.C. Johar & Sons (P) Ltd. v. STO and Kannan Devan Hills Produce v. State of Kera/a].

(b) Where the encroachment is ostensibly ancillary but in truth beyond the competence of the enacting authority, the statute will be a colourable piece of legislation and constitutionally invalid (A. S. Krishna v. State of Madras, A.B. Abdul Kadir v. State of Kera/a, SCC at p. 232 and Federation of Hotel & Restaurant Assn. of India v. Union of India, SCC at p. 651). If the statute is legislatively competent the enquiry into the motive which persuaded Parliament or the State Legislature into passing the Act is irrelevant (Dharam Dutt v. Union of India).

(c) Apart from passing the test of legislative competency, the Act must be otherwise legally valid and

-- STATE OF KERALA v. PEOPLES UNION FOR CIVIL 185 LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] would also have to pass the test of constitutionality in the A ,,,..... sense that it cannot be in violation of the provisions of the Constitution nor can it operate extraterritorially. (See Poppatla/ Shah v. State of Madras.)"

Has the legislature of the State of Kerala transgressed the B limitations of its constituti.anal power, as has been held by the High Court, is the question?

We have pointed out heretobefore that the doctrine of colourable legislation is strictly confined to the question of legislative competence of the State Legislature to enact a c 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 have been held to be the end of the matter. The High Court could D not have, in our respectful opinion, 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. E The High Court, in our opinion, again with utmost respect, has 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 character.

A statute in view of the decision of this Court in Gujarat Ambuja Cements Ltd. (supra), in the event of it being held within the ambit of the legislative competence of the State, could be declared ultra vires 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 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 H

186 SUPREME COURT REPORTS [2009) 11 S.C.R.

A on the touchstone of ~he provisions of Part 111 of the Constitution of India a!ld not otherwise. In that view of the matter, the High Court committed a serious error in relying upon Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Company Ltd. and Others [AIR 1954 SC 119] and Jagannath B Baksh Singh v. State of UP. [AIR 1962 SC 1563], which did not deal with the question of legislative competence of the legislature of a State, as was the question before the High Court.

C No material was placed before the High Court to establish that the 1999 Act was confiscatory in nature.

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 D compensation and, thus, the same would be violative of Article 300A of the Constitution of India, but, it is another thing to say that on that ground alone the legislation should be befd to be a colourable one.

E We have adverted to the statement of Objects and Reasons of the 1_999 Act. The legislature had a broad object in mind. Whether the Act stands the scrutiny of limitations of the- 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 F of the citizen taxed as was the case in K. T. Moopil Nair v. State of Kera/a [AIR 1961 SC 552].

The High Court in its judgment has referred to Shankaranarayana v. State of Mysore [AIR 1966 SC 1571]. But, G in our opinion, and with utmost respect, it again failed to apply the pr~nciples laid down therein correctly. Therein itself the court ._ had noted that if the legislature is competent to pass a particular law, the motives which impel it to pass the same become really irrelevant. H-

STATE QF, KERALA v. PEOPLES UNION FOR CIVIL 187 I LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] The High Court furthermore committed a serious error A 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 in our opinion, was not a relevant question. B

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, in our opinion, 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. D The rights conferred upon the class of persons 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 E 21, but, it would not be 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 become a constitutional threshold, against which constitutionality of a statute can be tested. It is trite that a right which may be conferred by a statute can also be taken away by another. F

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 enacting a new statute or amending the same G • so as to keep pace with the changing societal condition as well as taking into consideration the development of law, both domestic and international.

The High Court, in our opinion, furthermore committed a H

188 SUPREME COURT REPORTS [2009] (1 S.C.R.

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 have examined the question of their constitutionality on the touchstone of B Articles 14 and 21 of the Constitution of India and not on the · premise that the said provisions are colourable in nature.

PRESIDENTIAL ASSENT

13. It was held by the High Court that Presidential Assent C was necessary and the 1999 Act was enacted to by-pass the mandatory requirement of the President's Assent. In determining the said issue, it again ought to have posed unto itself the right question, viz., whether the Presidential Assent was necessary for enacting a statute which came within the D purview of List II of the Seventh Schedule of the Constitution of India. The answer thereto must be rendered in negative.

The 1975 Act dealt with both agricultural and non- agricultural lands. Transfer of land comes within the purview of E. Entry 6, List Ill of the Seventh Schedule of the Constitution of India. There exists a Parliamentary Act in that behalf, as for example, Transfer of Property Act. Only because the 1975 Act could be held to be in conflict with the provisions of the Transfer of Property Act, the Presidential Assent was necessary having regard to Clause (2) of Article 254 of the Constitution of India F but once the said statute is repealed and in its place a new Act is brought on the statute book, which comes strictly within the purview of Entry 49, List II of the Seventh Schedule of the Constitution of India, no Presidential Assent would be necessary. Presidential Assent would be necessary for the G 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 Constitution of India would be attracted only in a case where

.. STATE OF KERALA v. PEOPLES UNl.Ot:J FOR CIVIL 189 ~ LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] two statutes are enacted under the Concurrent List, viz., one A "' by the State Legislature and the other by the- Parliament of India, and not in any other case.

EFFECT OF ISSUANCE OF A WRIT OF MANDAMUS B •

14Copy pinpoint14. Before adverting to the said question, we may notice: the background facts leading to the issuance of a writ of mandamus.

Admittedly the State was not implementing the provisions of the 1975 Act. Dr. P. Nalla Thampy Thera filed O.P. No.8879 c of 1988 for direction upon the State and its officers to implement the provisions of the 1975 Act. The learned Additional Advocate General appearing for the Stat~ gave an undertaking to the effect that "utmost steps would be taken for the disposal of the applications and that the Act would be D enforced in all its rigour'', on the basis whereof the Original Petition was allowed on 15th October, 1993 directing the State to give directions to the Authorities under the Act to dispose of the applications pending before them within six months of that date. ., ' E As the State had taken extension of time by an order -4 dated 13th August, 1996, a learned Single Judge, inter alia, directed the Revenue Divisional Officers to cause delivery of the properties covered by orders for restoration against which no appeals were pending and in which no compensation was payable, forthwith and in any event within six weeks from that date.

A writ appeal was preferred thereagainst and an interim order of stay was passed on 11th October, 1996. Th~ matter was referred to a Full Bench. We have noticed heretobefore the order dated 25th November, 1998.

We have also noticed the order of the Full Bench dated 6th January, 1999. H

190 SUPREME COURT REPORTS [2009] 11 S.C.R. ...

A The High Court was, thus, aware of fhe impending legislation. The extension of time was subject to a new legislation.

The 1975 Act was a conditional legislation. It came into • foree with eff-ect from 24th January, 1986. Directions were B issued only tn regard to implementation of the statutory ' provisions It was not a case where by reason of issuance of writ of mandamus, certain benefits were conferred on a person or a group of persons. c In Madan MohanPathak (supra), the Calcutta High Court had issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class 111 and Class IV employees for years April 1, 1975 to March 31, 1976 along with their salary for the month of April, 1976 as provided by the D Settlement:The said decision attained finality as Letters Patent Appeal pryferred thereagainst had been withdrawn by the Life Insurance Corporation. In the meantime a Parliamentary Act, known as Life Insurance Corporation (Modification of Settlement) Act, 1976 came into force. E In the said factual backgrounds, it was held :-

"7. But before we proceed further, it would be convenient I- at this stage to refer to one other contention of the petitioner based on the judgment of the, Calcutta High Court F in Writ Petition 371 of1976. The contentionwas that since the Calcutta High Court had by its judgment dated May 21, 1976 issued a writ of mandamus directing the Life Insurance Corporation to pay annual cash bonus to Class Ill and Class IV employees for the year April 1, 1975 to G March 31, 1976 along with their salary for the month of April, 1976 as provided by the Settlement and this )

judgment had become final by reason of withdrawal of the Letters Patent Appeal preferred against it, the Life Insurance Corporation was bound to obey the writ of mandamus and to pay annual cash bonus for the year April

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 191

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] 1, 1975 to March 31, 1976 in accordance with the terms of clause 8(!i) of the Settlement. It is, no doubt, true, said the petitioners, that the impugned Act, if vc.:lid, struck at clause 8(ii) of the Settlement and rendered it ineffective and without force with effect from April 1, 1975 but it did not have the effect of absolving the Life Insurance B Corporation from its obligation to carry out the writ of mandamus. There was, according to the petitioners, nothing in the impugned Act which set at naught the effect of the judgment of the Calcutta High Court or the binding character of the writ of mandamus issued against the Life c lnsuranc? Corporation. This contention of the petitioners requires_ serious consideration and we are inclined to accept it.

1. It is significant to note that the~e was no reference to the judgment of the Calcutta High Court in the D Statement of Objects and Reasons, nor any non obstante clause referring to a judgment of a Court in Section 3 of the impugned Act. The attention of Parliament does not appear to have been drawn to the fact that the Calcutta High Court has already issued a writ of mandamus commanding the Life Insurance Corporation to pay the amount of bonus for the year April 1, 1975 to March 31, 1976. It appears that unfortunately the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement insofar as they relate to payment of annual cash bonus to Class Ill and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect from April 1, 1975. But the writ of ' ' mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year April 1, 1975 to March H

192 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 31, 1976remained untouched by the impugned Act. So far as the right of Class Ill and Class IV employees to annual cash bonus for the year April 1, 1975 to March 31, 1976 was concerned, it became crystallised in the judgment and thereafter B they became entitled to enforce the writ of mandamus granted by the judgment and not any right to annual cash bonus under the Settlement. This right under the judgment was not sought to be taken away· by the impugned Act. The judgment ', i

c continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus ~ to Class Ill and Class IV employees for the year April 1, 1975 to March 31, 1976 in obedience to the writ of mandamus. The error committed by the D Life Insurance Corporation was that it withdrew the . Letters Patent Appeal and allowed the judgment of the learned Single Judge to become final. By the time the Letters Patenf Appeal came up for hearing, the impugned Act had already come into force and ' I

the Life Insurance Corporation could, therefore, have I ' E successfully contended in the Letters Patent ' Appeal that, since the Settlement, insofar as it provided for payment of annual cash bonus, was ~ annihilated by the impugned Act with effect from April 1, 1975, Class 111 and Class IV employees F were not entitled to annual cash bonus for the year ,,. ' April 1, 1975 to March 31, 1976 and hence no writ '

of mandamus could issue directing the Life '

G Insurance Corporation to make payment of such bonus. If such contention had been raised, there is little doubt, subject of course to any constitutional ·- challenge to the validity of the impugned Act, that i,

the judgment of the learned Single Judge would have been upturned and the writ petition dismissed. }- But on account of some inexplicable reason, which H is difficult to appreciate, the Life Insurance

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 193

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] ., Corporation did not press the Letters Patent A Appeal and the result was that the judgment of the learned Single Judge granting writ of mandamus became final and binding on the parties. It is difficult to see how in these circumstances the Life Insurance Corporation could claim to be absolved B from the obligation imposed by the judgment to carry out the writ of mandamus by relying on the impugned Act.".

Madan Mohan Pathak (supra) has been followed in P. Venugopal v. Union of India, [ (2008) 5 SCC 1 ], wherein it c was opined :~

"As in Mohan Pathak case (para 8), as quoted hereinabove, in the instant case also Parliament does not seern to have been apprised about the pendency of the proceedings before the Delhi High Court and this Court and declaration made and directions issued by the Delhi High Court at different stages. In the impugned amendment, there is no non obstante clause. The impugned amendment introducing the proviso, therefore, cannot be treated to be a validating Act."

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 learned Single Judge of the High Court issued a direction that the applications 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, in our opinion, did not mean that the High Court itself had issued a writ of mandamus directing restoration of'tfle~_ lands in question.

As in most 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 a_ttain finality. H

194 SUPREME COURT REPORTS [2009] 11 S.C.R.

r A If that be so, in our opinion question of invoking the decision of Madan Mohan Pathak (supra) in the factual matrix involved herein does not· arise. ,. \-

Further, it is one thing to say that a writ of mandamus shall B 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 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 c adjudicated upon. It did not attain finality in that sense of the term.

We may notice that scope of Madan Mohan Pathak (supra) has been explained in Indian Aluminium Co. (supra), D stating :-

"49. In Madan Mohan Pathak v. Union of India, on the basis of a settlement, bonus became payable by the LIC to its Class Ill and Class IV employees. In a writ, a Single E Judge of the Calcutta High Court issued mandamus directing payment of bonus as provided in the settlement. During the pendency of letters patent appeal, LIC (Modification of Settlement) Act, 1976 was-enacted J- denying bonus payable to the employees. The appeal was • withd.rawn. The validity of 1976 Act was challenged in this . F Court under Article 32 of the Constitution. A Bench of • ~ seven Judges had held that Parliament was not aware of the mandamus issued by the court and it was declared that the 1976 Act was void and writ of mandamus was issued to obey the mandamus by implementing or enforcing the G provisions of that Act and directed payment of bonus in f terms of the settleme!lt. It was pointed out that there was 1 '

no reference to the judgment of the High Court in the ·Statement of Objects and Reasons, nor any non obstante clause referring to the judgment of the Court was made in ;- H Section 3 of the Act. Attention of Parliament was not drawn

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 195

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.) to the mandamus issued by the High Court. When the mandamus issued by the High Court became final, the 1976 Act was held invalid. Shri R.F. Nariman laid special emphasis on the observations of learned Chief Justice Beg who in a separate judgment had pointed out that the basis of the mandamus issued by the court could not be taken away by indirect fashion as obser1ed at p. 743, C to F. From the observations made by Bhagwati, J. per majority, it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, c the observation of Chief Justice Beg is to be understood in the context that as long as the effect of mandamus Issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But it does not mean that 0 the learned Chief Justice intended to lay down the law that mandamus issued by court cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the court."

Madan Mohan Pathak (supra), thus, stood explained in E Indian Aluminium Co. v. State of Kera/a (supra) to be understood in the context that. as long ·as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is boun.d to obey the directions. F Yet again, in National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India, [(2003) 5 SCC 23], explaining Madan Mohan Pathak, it has been held:-

"26. The decision is an authority for the principle that a judicial decision which has become final inter partes, G cannot be set at naught by legislative action,· a principle that is well entrenched. Therefore, if, as has been contended by the appellant, the High Court in 1981 had in proceedings between th~ appellant and the Revenue held that the appellant was entitled to the benefit of the deduction H

196 SUPREME COURT REPORTS [2009} 11 S.C.R.

A under Section 80-P(2)(a)(iii) of the Act, and the Revenue f

has not impugned the High Court's decision, that decision binds the parties for the assessment years in question and cannot be reopened because of the 1998 Amendment. This principle, however, does not in any way detract from B the principle that the legislature may "cure" the statute so that it more correctly represents its intention. Such curative legislation does not in fact touch the validity of a judicial decision which may have attained finality albeit under the pre-amended law." c In Mylapore Club v. State of T.N. [ (2005) 12 SCC 752 ), P.K. Balasubramanyan, J opined-:-

"The power to legislate is a plenary power vested in the legislature and unless those who challenge the legislation clearly establish that their fundamental tights under the Constitution are affected or that the legislature lacked legislative competence, they would not succeed in their challenge to the enactment brought forward in the wisdom of the legislature. Conferment of a right to claim the benefit of a statute, being not a vested right, the same could be withdrawn by the legislature which madg the enactment. It could not be said that the Amendment Act lacked either legislative competence or that it is unconstitutional."

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, in our opinion, such a question does not arise as the 1975 Act was not declared to be invalid. ~

G In Bakhtawar Trust v. M.D. Narayan, [(2003) 5 SCC 298] this Court held :-

"In order to validate an executive action or any provision of a statute, it is not sufficient for the legislature to declare - H that a judicial pronouncement given by a court of law would

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 197

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.]

not be binding, as the legislature does not possess that A pgwer. A decision of a court of law has a binding effect unless the very basis upon which it is given is so altered that the said decision would not have been given in the changed circumstances." B The reason is not far to seek. The Legislature can not over- rule a judgment but it can remove the basis on which the judgment has been rendered.

The Act was implemented both in respect of those who had two acres of land and those who had more. C

The 1999 Act removes the basis for passing of the judgments so far as the applications for restoration filed by Members of the Scheduled Tribes in regard to their lands which was less than 2 hectares is concerned. o It 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. (See Section 2(b) and Section 5 of 1999 Act). E Admittedly, the 1999 Act was made effective retrospectively from 24th day of January, 1986. It contains a Repeal and Savings clause. In that view of the matter, in our # opinion, it was not neGessary to term the statute as a validating statute containing a non-obstante clause. F It is difficult to conceive, having regard to 'the orders issued by the Full Bench, that the Legislature were not aware of 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 G would be subject to the new enactment.

We, therefore, are of the opinion that Madan Mohan Pathak (supra) has no application to the present cases.

198 SUPREME COURT REPORTS [2009] 11 S.C.R.

' A YESTED RIGHT VIS-A-VIS ARTICLE 14

15Copy pinpoint15. A vested right has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, page 4888, in the following terms: 8 "Vested rights. Property rights.

The expression 'vested right' means an absolute or indefeasible right. It is an immediate fixed right in present or future enjoyment in respect of property. The claim based c on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced against public interest and conveniences which are sought to be served. n