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

In Southern Petrochemical Industries Co. Ltd. v. D Electricity Inspector & ETIO [(2007) 5 SCC 447], this Court -1 held:

"106. Furthermore, exemption from payment of tax in favour of the appellants herein would also constitute a right E or privilege. The expression "privHege" has a wider meaning than right. A right may be a vested right or an accrued right or an acquired right. Nature of such a right would depend upon and also vary from statute to statute. It has been so held by this Court, while construing Section • F 6 of the General Clauses Act, in Gurcharan Singh Baldev Singh v. Yashwant Singh in the following tenns: (SCC p. 432, para 3) ~ "The. objective of the provision is to ensure protection of any right or privilege acquired under the repe~led Act. The G only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability."

H [See also Kusumam Hotels Private Limited v. Kera/a

STATE OF KERALA v. PEOPLES Ur:-JION FOR CIVIL 199 ....... LIBERTIES, KERALA STATE UNIT [S.S. SINHA, J.]

~ State Electricity Board and Others (2008) 13 SCC 213 and A State of Punjab and Others v. Bhajan Kaur and Others (2008) 12 sec 1121

The question as to whether the members of Scheduled Tribe had a vested right or not, may now be considereEI. The B properties were sold by them to persons who were not the members of the Schedule Tribes long back. Such transactions, \ when entered into, were valid being not barred by any statute. The vendees, thus, acquired indefeasible right. They, however, were invalidated by Section 5 of the 1975 Act. The consequence of rendition of such transactions as invalid was c to restore the lands back to possession of the tribals wherefor certain procedural requirements were to be complied with. The 1975 Act, however, was only brought into force in 1986, that too with retrospective effect from 1982. In the meanwhile, many purchasers again acquired prescriptive rights. It was furthermore D .,, made effective only when the Rules were framed in 1986.

The right of restoration was of two kinds, one, in respect of agricultural land and the other in regard to non-agricultural land. We intend to deal with them separately. Indisputably, E despite the 1975 Act having been brought in force and the Rules having been framed for the effective implementation thereof, the State and the Revenue Officers took no steps for implementation therefor for a long time. The process started > only when a writ of mandamus was issued by the High Court. F For its i_mplementation, the substance of the proceedings has been noticed by us heretobefore. The 1975 Act and the 1986 Rules provided for several stages. The procedure laid down in the 1986 Rules consists of filing of application for restoration, calling for objections, determination of the issues, filing of appeals. Once that stage reached finality, the applicants are required to pay compensation to the land holder in terms of Section 9 of the 1975 Act which was a condition precedent therefor.

The 1975 Act contemplated raising of loan from the H

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

A government by the members of the Scheduled "Tribe, §YPj~ct to the conditions laid down in the Rules. The procedure for grant of loan and consequent payment of compensation to the owners of land was a pre-condition for actual restoration thereof.

When, thus, loans are raised and amount of compensation 8 is paid to the transferees~ in our opinion, only then the vested right for getting back possession of the lands gets accrued and not prior thereto. We say so because the 1975 Act itself provides for a statute depriving the land holders from a right of property, which is otherwise protected by reason of Article 300- c A of the Constitution of India. It is also a human right. [See Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 and Union of India & Ors. v. Mis. Martin Lottery Agencies Ltd. [(2009 4 SCALE 34)

0 The provisions of the 1975 Act, therefore, deserve ~trict construction. Although we are- not required to consider th(j validity of the 1975 Act stricto sensu, we may place on record that even the decisions of this Court have declared similar provisions to be intra vires. E Before, however, we advert thereto, we would like to make some general observations.

No territory in the State of Kerala has been declared as Scheduled Area within the meaning of Article 244 read with the 4. F Fifth Schedule of the Constitution of India. A distinction, thus, must be borne in mind in regard to the enactments which deal with tribal areas and which do not. If a law (e.g. Scheduled Area Regulation Act) deals with the tribal areas, the same amends provisions of the other Acts including the Limitation Act, 1963. G If a person is in possession of a land, which he had obtained by reason of a valid transaction as it then was, which was subsequently sought to be invalidated, he would ordinarily receive protection by reason of doctrine of prescription provided for under the Limitation Act, by reason whereof if he has been in possession thereof for a period of more than 12 years, he

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 201

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] would have acquired an indefeasible right thereto despite the fact that the transaction has been invalidated by a later Act. It was so held in Manchegowda (supra). Therein, a distinction was maqe between a defeasible right and an indefeasible right and this Court was concerned with a transaction which was voidable in nature. B It is, however, not a case where a transfer has be~n made in contravention of the terms of the grant or any law, regulation or rule governing such grant which could be legqlly avoid~d c:>r possession thereof could be recovered through process of law. C Therein, this Court clearly held:

"24. Though we have come to the conclusion that the Act is valid, yet, in our opinion, we have to make certain aspects clear. Granted lands which had been transferred after the expiry of the period of prohibition do not come within the purview of the Act, and cannot be proceeded against under the pruvisions of this Act. The provisions of the Act make this position clear, as Sections 4 and 5 l:>~~gm~ qpplicable only when granted lands are transferFed fn br~cich of the condition relating to prohibition on transfer of such 9rpnt~d lands, Granted lands transferred before the commencement of the Act and not in contravention of prohibition on transfer are clearly beyond the scope and purview of the present Act. Also in case where granted lands had been transferred before the commencement of the Act in violation of the condition regarding prohibition on such transfer and the transferee who had initially acquired only a voidable title in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, such granted lands would also not come within the purview of the present Act, as the title of such transferees to the granted lands has been perfected before the commencement of the Act. Since at the date of the H

202 SUPREME COURT REPORTS [200£l] 11 S.C.R.

A commencement of the Act the title of such transferees had ceased to be voidable· by reason of acq4isJtion of prescriptive rights on account of long and continued user for the requisite perioq, the title of such transferees could not be rendered void by virtue of the provisions of the Act B without violating the con~titutional guarantee. We must, ~h§refore, reaq dqvvn the provisions of the Act by holding that th~ A9t will qpply tg transfers of gr~nted lands made in breach ofthe condition imposing prohibition on transfer of granted lands only in those cases where the title c acquired by the transferee was still voidable at the date of the commencement of the Act ·and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. D Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act."

E In Lingappa (supra), this Court held;

"26. The impugned Act in its true nature and character is a law relating to transfers and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes. Such a law • does not fall within Entries 6 and 7 in List Ill but is within Entry 18 in List 11. We may here set out Entries 6 and 7 in List Ill:

"6. Transfer of property other than agricultural land; registration of deeds and documents.

7. Contracts, including partnership, agency, contracts of carriage, and· other special forms of contracts, but not including contracts relating to agricultural lands." H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 203

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] The words "other than agricyltural land" in Entry 6 and the A

- words "but not including contracts relating to agricultural Ittner in Entry 7 in List Ill have the effect of delimiting the legislative p9wer of the Union to make a law with respect to transf~rs and alienations of agricultural lands or with respect to eontraets in relation thereto. The power to B legislate cannot be denied to the State on the ground that the provisions of Sections 3(1) and 4 which provide for annulm13nt of transfers by tribals incidentally 'trench upon the existing law, namely, the Transfer of Property Act, 1882 or a law rnade by Parliament viz. the Specific Relief Act, c

1963. The power of the State Legislature to make a law with respect to transfer and alienation of agricultural land under Entry 18 in List II carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the D power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable to Entry 18 in List II of the Seventh Schedule."

It was observed: E

'' .. ,That apart, members of Scheduled Tribes i.e. tribals who gre rnostly aboriginals constitute a distinct class who ~ need a special protection of the State. Further, the question as to how far and by what stages such laws are to be F implemented involves a matter of policy and therefore beyond the domain of the courts. Secondly, the Act no doubt makes a distinction between a non-tribal transferee who had oiverted the lands obtained by him under a transfer from atribal during the period from April 1, 1957 G to July 6, 1974 (:Ind had put such lands to non-agricultural purpose, a'nd other non-tribal transferees who got into possession under transfers effected by tribals during the same period but continued to use the lands for agricultural purposes. There is no question of any differential treatment H '

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

A between two classes of persons equally situate. When a part of the land is diverted to a non-agriq.Jlturar purpose viz. the construction of a dwelling house or the setting up of an industry, the State Legislature obviously could not have made a law for annulment of transfer of such lands B by tribals under Entry 18 in List II as the lands having beeri diverted to non-agricultural purposes ceased to be agricultural lands. In the case of such non-agric1,.1ltural land, if the Stat(3 Legjslatµre mad~ such a law it would not be eff~ctive unless it was reserved for the assent of the

c Presid@nt enc:f r~§eiveci sl1oh assent."

Therein, thus, this Court found that Sub-section (1) of Section 3 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 made detailed provision to strike a balance between the mutual rights and obligations of the parties, upon making of an order for restoration of such land to the members J

of the Scheduled Tribes.

It was furthermore held that the said Act having been placed in the Ninth Schedule of the Constitution of India, the validity thereof could not have been challenged for contraventi9n of Articles 14, 19(1)(f) or Article 31 of the Constitution of lndi~.

Yet again in P. Rami Reddy and Others v. State of Andhra Pradesh and Others [(1988) 3 SCC 433], there existed .. a law prohibiting transfer in the agency tract areas, viz., the F Agency Tracts Interest and Land Transfer Act, 1917. Those areas were notified as Scheduled Areas after coming into force of the Constitution by reason of the Scheduled Area. (Part 'A' States) Order, 1950. By reason of the power conferred on the Governor of the State by Para 5(2) of the Fifth Schedule, the regulations named as AP. Scheduled Areas Lanc:f Transfer Regulation, 1959 were made. In the aforementioned backdrop, it was opined:

"19 ... The community cannot shut its eyes to the fact that the competition between the "tribals" and the "non-tribals"

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 205

LIBERTIES 1 KERALA STATE UNIT [S.B. SINHA, J.] partakes of the character of a rar.::e between a handicapped one-legged person and an able-bodied two-legged .. person. True, transfer by "non-tribals" to "non-tribals" would not diminish the pool. It would maintain status quo. But is it sufficient or fair enough to freeze the exploitative deprivation of the "tribals" and thereby legalize and perpetuate the past wrong instead of effacing the same? As a matter of fact it would be unjust, unfair and highly unreasonable merely to freeze the situation instead of reversing the injustice and restoring the status quo ante. The provisions merely command that if a land holder c voluntarily and on his own volition is desirous of alienating the land, he may do so only in·favour of a "tribal". It would be adding insult to injury to impose such a disability only on the tribals (the victims of oppression and exploitation themselves) and discriminate against them in. this regard 0 whilst leaving the "non-tribals" to thrive on the fruits of their exploitation at the cost of "tribals". The "non-tribal" economic exploiters cannot be installed on the pedestal of immunity and accorded a privileged treatment by pefrmitting them to transfer the lands and structures, if any, raised on such lands, to "non-tribals" and make profits at the cost of the tribals. It would not only tantamount to perpetuating the exploitation and injustice, it would tantamount to placing premium on the exploitation and injustice perpetrated by the non-tribals. Thus it would be the height of unreasonableness to impose the disability only on the tribals whilst leaving out the "non-tribals". It would also be counterproductive to do so."

However, in K. T. Huchegowda v. Dy. Commissioner [(1994) 3 SCC 536], this Court held: G

"8. On a plain reading, granted land will mean, any land granted by the Government to a person, who is a member of the Scheduled Castes or Scheduled Tribes which includes land allotted to such persons. Grant may be of H

206 SUPREMtt COURT REPORTS [2009] 11 S.C.R.

A different types; it may be by absolute transfer of the interest of the State Government to the person concerned; it may be only by transfer of the possession of the land, by way of allotment, without conveying the title over such land of the State Government. If by grant, the transferee has B acquired absolute title to the land in question from the State Government, then subject to protection provided by the different provisions of the Act, he will be subject to the same period of limitation as is prescribed for other citizens by the provisions of .the Limitation Act,_ in respect of c extinguishment of title over land by adverse possession. On the other hand, if the land has been allotted by way of grant and the title remains With the State Government, then to extinguish the title that has remained of the State Government by adverse possession, by a transferee on the ba~is of an alienation made in his favour by an allottee, D the period of limitation shall be 30 years. Incidentally, it may be mentioned that some of the States in order to protect the members of the Scheduled Tribes from being / dispossessed from the lands which belong to them and of which they are absolute owners, for purpose of E . extinguishment of their title by adverse possession, have prescribed special period of limitation, saying that it shall be 30 years. In Bihar, vide Regulation No. 1 of 1969, in Article 65 of the Limitation Act, it has been prescribed that it would be 3Q years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part Ill to the Schedule to the Constitution (Scheduled Tribes) Order, 1950.

9. There is no dispute that so far as the Act with which we are concerned, no special period of limitation has been prescribed, in respect of lands which have been granted , to the members of the Scheduled Castes and Scheduled Tribes with absolute ownership by the State Government. In this background, when this Court in the case of Sunkara H Rajayalakshmi v. State of Karnataka said that the period

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 207

LIBERTIES, KERALA STATE UNIT [S.S. SINHA, J.] of limitation, which has to be taken into account for the purpose of determining, whether the title- has been \.. perfected by prescription, shall be that which runs against the State Government and therefore it would be 30 years and not 12 years, has to be read in context with the lands, the ownership whereof, has not been transferred absolutely, to the members of the Scheduled Castes and Scheduled Tribes; the lands having been only allotted to them, the title remaining with the State Government. The cases where the transfer by the State Government by way of grant has been absolute, then unless there is an c amendment so far the period of limitation is concerned, it is not possible to apply the special limitation of 30 years, c;o far such grantees are concerned, when the question to be determined, is as to whether a transferee in contravention of the terms of the grant, has perfected his D " title by remaining in continuous and adverse possession. The transferee, who has acquired the land from the grantee, in contravention of the terms of the grant shall perfect his title·by adverse possession by completing the period of 12 years .. When this Court said in its main judgment, in the case of Manchegowda v. State of Kamataka that in cases where granted lands had been transferred before the commencement of the Act in violation of the condition, regarding prohibition on such " transfer and the transferee who had initially acquired only a voidable title, in such granted lands had perfected his title in the granted lands by prescription by long and continuous enjoyment thereof in accordance with law before the commencement of the Act, has to be read, for purpose of determining the period of limitation in respect of lands granted with absolute ownership, to mean 12 G & years and grant by way of allotment without transfer of the ownership in favour of the grantee, to mean 30 years."

[See also Papaiah v. State of Karnataka (1996) 10. SCC Ill( 533] H

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

A The statutory provisions, therefore, must be interpreted ih the light of-the constitutionai provisions.

The decisions of this Court, therefore, are clear and unambiguous. In a case involving members of the Scheduled Tribe living in Scheduled Area the period of limitation can be 8 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.

E 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. .. F REASON FOR AMENDMENT

16Copy pinpoint16. This brings us to the question as to whether the 1999 Act is invalid inter alia because the State was apprehensive that the assignees may offer organized resistance for implementation of the 1975 Act and the State wanted to avert a conflict between the tribals and the non-tribals. the sltort answer to the said question is that the State cannot shut its eyes to the ground realities. The Statement of Objects and Reaso11s would clearly show that the State did not take an action in a half-hearted manner. It consulted the tribal

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 209

,. LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] .f organizations. It is stated in its Counter Affidavit by the State A before the High Court as under:

"... Under the above circumstances, urgent steps were taken to have discussion with the various tribal organisations did not insist upon getting the very same land 8 that had been alienated but would prefer to obtain an equal .. extent of land from the Government. Many organisations did not insist that the Act 31 of 1975 should be implemented in its original form. The Government also had serious discussions with various political parties and other concerned with tribal welfare. Discussions were also held c with the present occupants of the alienated tribal lands.

On the basis of the discussions and deliberations the Government thought it proper to introduce a suitable legislation which would adequately take care of the D "' interests of the Tribals and also find a solution to the problems of landlessness and homelessness of the Tribals. Accordingly, the Kerala Restriction on transfer by and Restoration of Land to the Scheduled Tribes Act, 1999 was introduced in the State Assembly and the same was unanimously passed by the Assembly. The Bill became an Act (Act 12 of 1999) on 20.4.1999."

~ If the contention of the State is correct that most of the tribal organizations did not insist upon getting the same land that they had been alienated from but would have preferred to have ~ltemate land allotted to them by the government and as many organizations insisted that the 1975 Act may not be implemented in its original form, we think that action of the State cannot be termed to be arbitrary so as to attract the wrath of the equality clause contained in Article· 14 of the Constitution G of India.

While doing so, the State had taken into consideration the change in the situation by reason of passage of time. The tribals had been out of possession of their lands for decades. It was H

210 SUPREME COURT REPORTS [2009] 11 S.C.R. , •,

~ A for the elected representatives 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 impinge on their culture connected with their lands. ' ' -

The ground realities are presumed to be knoWh to the State 8 ~ and if anybody raises a contrary contention, it would· be for'him to bring on record sufficient materials to show so as· tci enable ... · the court to arrive at a conclusion that the State's action was arbitrary.

' c - It is furthermore a well-settled principle of law that the superior 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 D bringing out the legislation in question or not. . Such inquisitorial inquiry on the part of the court, in our opinion, is beyond the province of the court.

BENEFICIENT NATURE OF THE 1999 ACT VIS-A-V-5 E 1975 ACT

17.. The 1999 Act, in our opinion, is more beneficial in nature so far as the people of the State of Kerala are ~ concerned. F The 1975 Act came into f9rce with retrospectiv~ effect from - 1.01.1982. But, as noticed hereinbefore, the 'Rules were framed -only·on 18;10.1986. Act 12 of 1999, however, came into force _ on _20.04, 1999 but was gi_ven ? retrospective effect and retroactive operation -from 24.01.1986. : G ,' · We heretobelow may notice a comparative chart of the - salient provisions of the tWo Acts:

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 211

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] Act 31/75 - Came into force Act 12/99 came into force A on 01.01.1982 Pages 135 on 20.04.1999 Page - 142 Nos.161 - 169, but ·deemed to have come into force on 24.01.1986 2(b) "Immovable property" 2(4) Section B defined as including "Land" defined means standing crops and trees. agricultural land - Act Act applies to such property applies to such land.

4. Transfer of any immovable 4. Transfer of any land (i.e. c property by a tribal to a non Agricultural land) by tribal to tribal without previous non-tribal after consent of competent commencement of Act authority after without previous consent of commencement of the Act competent authority shall shall be void. be void.

5. Transfer of immovable 5. (1) Transfer of land by tribal property by Tribal. to non to non tribal after tribal after 01.01.1960 shall 01.01.1960 and before Act be deemed to be invalid shall be deemed to be invalid. Proviso : But this will not invalidate transfers where the extent of land transferred does not exceed two hectares (2) Notwithstanding (1) above, where the land transferred is used for agriculture purpose the transferor may retain the treansferred land or 2 Hectres to be demarcated by the RDO. H

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

A 6(1) The Tribal whose 6. Styled as allotment of land. transfer is invalidated under (1) Tribal who has effected Sections 4 and 5 shall be transfer of land between entitled to restoration of 01.01.1960 and 2.4. 1986 possession of the property. and B Sub Sectton (5) provide for (a) who has filed an a remedy of appeal to the application for restoration a,ggrieved persons to the u/s. 6 of Act 31 of 1975 .competent authority. (b) but whose possession c has not been restored. (c) and which transfer has been validated by the provisions of Sec.5 above shall be entitled to D allotment of equal extent of land by Government to the extent of 40 Ares.

7. Govt. may take Suo-moto Proviso: action for restoration E Where the extent of land to be so allotted is less than 40 be· Ares (One Acre) Government will make further allotment to make F the total extent 4o Ares.

11. Where possession is 7. Where a transfer ofland is restored to tribal under invalidated U/s. 4 and 5 of Section 6 he shall pay to the the Tribal is entitled to quantum transferee the restoration of such land. G consideration received as also the value of the improvement effected by the transferee as determined by .the competent authority. H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 213

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

12. Government may advance Sub-section 2 to 4 A loans to tribal for; payment of prescribe the procedure for the amount u/s.11 to be restoration with a right of repaid in half yearly or annual appeal under sub section 6 instalment and to be (Akin to section 6 of Act 31 recovered as an arrear of of 75) B land revenue if kept in arrears.

8. 1 Similar to section 11 of Act 31 of 75

9. Government shall provide C grant to eligible tribal/ liable to pay the amount

- under Section 8.

10. (1) Government shall assign land to landless tribal families not 0 exceeding 40 Ares in extent in his own district within two years or extended time. E (2) If any family owns land below 40 Ares I extent Govt. to assign such extent of land as is necessary to make up 40 F Ares . . 11. Schedule Tribe rehabili- tation and Welfare Fund to be constituted for GOnstru- ction of houses for tribal families and for other welfare measures.

12. Provision for legal assistance 22 Repeal of Act 31 of 1975 with usual saving clause.

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

A Broadly, speaking, the provisions of the 1999 Act are more beneficial to the members of the Scheduled Tribe. For determining the said question, we must take a holistic view of .the matter. However, we are not oblivious of the fact that restoration in respect of non-agricultural land and to the extent B of 2 acres are not contemplated by the 1999 Act. We are also not oblivious of the fact that, it would appear, on the basis of the statistics furnished by the learned Additional Advocate General before the High Court, to which we have referred to heretobefore itself that a large number of members of the c Scheduled Tribe would be deprived of the benefit of restoration oftheir own lands constituted in forest areas.

In the counter-affidavit filed by the State, it is stated:

"It is submitted that the Government found that Act 31 of D 1975 would not really serve the purpose of ameliorating the problems of the scheduled tribes and might instead lead to law and order situation in various parts of the State. After a comprehensive study of the matter the Government passed Act 12 of 1999. The allegation that the intention of Act 12 of 1999 is other than protection of the rights of schedule tribes is incorrect and denied. A reading of all the provisions of the Act 12 of 1999 would make it clear that the legislature has kept the over all interests of the tribals and all the people of the State is general while enacting Act 12 of 1999. It is submitted that no right ·conferred by Act 31 of 1975 has been taken away by Act 12 of 1999. The allegation that Act 12 of 1999 is meant to protect the right of tribals is incorrect and is denied. It is submitted that the various provisions of Act 12 of 1999 G had already been delineated elsewhere in the counter affidavit and the reasons for the enactment of Act 12 of 1999 have also been explained."

Out of 4724 applications for restoration filed, 1475 applications involved transfer of less than 50 cents, 898 H applications involved transfer of "extent between 50 cents and

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 215

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] o 1 acre", 904 applications covered cases of "transfer of extent A between 1 and 2 acres and 1074 applications related to "transfer of extent between 2 acres and 5 acres and that only 373 applications involved cases of transfer of more than 5 acres or 2 hectares. B The State has clearly brought on record the fact that it had conducted further studies wherefrom it came 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. c It is necessary, according to us, 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 away. The 1975 Act postulates grant of compensation to the alienees, the amount wherefor was required to be determined by a competent authority. The D amount of cor,rtpensation so determined was to be paid by the members of the Scheduled Tribe to their vendees in respect whereof he was to take loan from the State. The amount of loan taken was, thus, requlred to be repaid. The 1999 Act, however, ~provides for a grant which need not be repaid. . E

The members of the Scheduled Tribe were further to get one acre of land from the State although they might have transferred even 5 or 10 cents of land. In the case of a transfer made upto two acres, he is to be allotted two acres of land by the State. Whether such land is avaiilable with the State F Government or not is a different questio'n, which we intend to deal with separately. 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 G fund.

The 1999 Act, therefore, if given a holistic view, is more beneficial to the members of the Scheduled Tribe than the 1975 - Act. If the State contemplated a legjslative policy for grant of H

216 SUPRF.ME COURT REPORTS [2009] 11 S.C.R.

A more benefits to a vast section of people, taking care of not only restoration of land but those who have not 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.

B ARTICLE 21 ISSUE

18Copy pinpoint18. Article 21 deals with right to life and liberty. Would it bring within its umbrage a right of tribals to be rehabilitated in their own habitat is the question? If the answer is to be rendered C · in the affirmative, then, for no reason whatsoever even an inch of land belonging to a member of Scheduled Tribe can ever be acquired. Furthermore, a distinction must be borne between a right of rehabilitation required to be provided when the land of the members of the Scheduled Tribe are acquired vis-a-vis D a prohibition imposed upon the State from doing so at all. The question must be considered from another angle. The Scheduled Tribes are not in an agency area or Scheduled Area. The literacy rate of the tribals of Kerala is 57% which is much more than the national average. Most of the tribal children have elementary education. In the schools and colleges of Kerala, Malayalam, Tamil or English is taught. It has been noticed by various writers that the tribal teachers have not been interacting with the students in the tribal terms and, thus; gradually the tribal students have lost respect for their language and begun to disregard their language, their culture and, thus, their own primitive way of life. [See Tribes of Kerala - Identity Crisis by Rayson K. Alex]

The learned author states:

G "What is the criterion for the government to label a tribe as a "scheduled" tribe in the constitution? Has the government conducted a detailed study on the culture, traditions, their interrelationship with the place they live in, their socio-economic structures and judiciary before i H labeling them as "scheduled" tribes? The reason for this '

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 217

LIBERTIES, KERALA STATE UNIT [S.S. SINHA, J.] ., categorization can be attributed to their "supposed" A backwardness and not their distinct identity from the dominant society of the country. Without taking into consideration aforementioned aspects of the culture of the tribes, to create "awareness" and to finally "develop" (in the narrow sense of the word) them, the tribes were forced to B merge and condition themselves along the lines of the so- called "main-stream" Indian society. "When that was challenged, the ideologues of the aggressing society presented the theory of "integration" which in reality is the other side of the same coin. And now has come the final c blow from the armory of the India state for the indigenous people of the country in the form of total denial of their existence in India. "India does not have indigenous population"! Thus declared the Indian Permanent Mission in the United Nation in Geneva (Mullick et al 7). 0 This is not an argument made to showcase the tribes of Kera la as "scheduled tribes." Now a question of serious importance can be raised: Is there a need to uphold/ preserve this indigenous culture? The outer (can be read as "other") influences have spread their ·roots so strong E that their minds have been colonized (can be read as 'altered'). Even though the tribes carry wonderful memories of their rich past, they do not want to be in the same situation as they were in days of yore. So, the need for conservation of the tribal culture is the problem of the non- F tribes, especially the researchers, scholars and activists working in this area. Intentionally or unintentionally, changes are the only constant feature of any culture. It can be observed that no culture can retain its flavor at different points of time. But the questions to be addressed to the G "main-stream" and its government are: Are the tribes given freedom to accept or deny what ever they want? Are they given a free space to think, act and establish (as they used to in days of yore?)" H

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

A We may notice that in Indigenous and Tribal Populations Convention, 1957 which has been ratified by 27 countries including India contained following clauses:

"Article 11 8 The right of ownership, collective or individual, of the members of the populations concernec:I over the lands which these populations traditionally occupy shall be recognised.

c Article 12

1. The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations.

2. When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation ~.

F in money or in. kind, they shall be so compensated under appropriate guarantees.

3. Persons thus removed $hall be fully compensated for any resulting loss or injury.

G Article 13

1. Procedures for the transmission of rights ofownership and use of land which are established by the customs of the populations concerned shall t?e respected, within the framework of national laws and regulations, in so far as

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 219

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] they satisfy the needs of these populations and do not hinder their economic and social development

2. Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on ihe part of the members of these populations to secure the ownership or use of the lands belonging to . such members."

Thus, removal of the population, by way of an exceptional measure, is not ruled out. It is only subject to the condition that c lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. We may, however, notice that this Convention has not been ratified by many cou_i:itries in the Convention held in 1989. Those who have ratified the 1989 D Convention are not bound by it.

Furthermore, the United ~ations adopted a declaration on the rights of indigenous peoples in September, 2007. Articles 3 to 5 thereof read as under: E "Article 3

Indigenous peoples have the right to self-Oetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural F development.

Article 4

Indigenous peoples, in exercising their right to self- determination, have the right to autonomy or self- G government in matters relating to their internal and local

,,, • affairs, as well as ways and means for financing autonomous functions. their

Article 5 H 4

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

A Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State." B It is now accepted that the Panchasheel doctrine which provided that the tribes could flourish and develop only if the State interfered minimally and functioned chiefly as a support system in view of passage of time is no longer valid. Even the notion of autonomy contained in the 1989 Convention has been c rejected by India. However, India appears to have softened its stand against autonomy for tribal people and it has voted in favour of United Nations declaration on the rights of indigenous people which affirms various rights to autonomy that are inherent in the tribal peoples of the world. This declaration, D however, is not binding.

This Court furthermore in Narmada Bachao Ando/an v. Union of India and Others [(2000) 10 SCC 664] while considering the validity of acquisition of lands by the State of E Madhya Pradesh for a project known as Sardar Sarovar Project (SSP) by constructing a dam on river Narmada as a result whereof the residence of tribals in various States, viz., Madhya .. Pradesh, Gujarat, Maharashtra and Rajasthan were affected, opined as under: F "62. The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites they wi.11 have more and better amenities than those they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress." " For the purpose of going into the question with regard to the adjudication of the water dispute regarding the inter-State ~~

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 221

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] ..., River Narmada and the river valley thereof in terms of the provisions of the inter-State Water Disputes Act, the award inter alia provided for relief and rehabilitation stating that no submergence of an area would take place unless the oustees are rehabilitated. B This Court referred to Article 12 of the ILO Convention No. ..\ 107 holding: '

"58. The said article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of c quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resultin,g loss or injury. The rehabilitation package contained in the award of the Tribunal as improved further by the State of Gujarat and the other States prima facie D ~ shows that the land required to be allotted to the tribals is likely to be equal, if not better than what they had owned."

Noticing that construction of a dam is of utmost importance for development of the country as it plays an important role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood waters back. It repelled a submission that the execution of SSP without ,. a comprehensive assessment and evaluation of its . environmental impact and a decision regarding its acceptability would be in violation of the rights of the affected people under Article 21 of the Constitution of .India stating that requisite environmental clearance had been taken opining that the same had been granted on due application of mind. It took into .consideration the question of relief and rehabilitation, consequent upon the displacement of people, holding: G

- 'v \ "151. The displacement of the people due to major river valley projects has occurred in both developed and developing countries. In the past, there was no definite policy for rehabilitation of ciisplaced·persons associated H

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

A with the river valley projects in India. There were certain project-specific programmes for implementation on a 'temporary basis. For the land acquired, compensation · under the provisions of the Land Acquisition Act, 1894 used to be given to the project-affected families. This B payment in cash did not result in satisfactory resettlement of the displaced families. Realising the difficulties of displaced persons·. the requirement of relief and rehabilitation of PAFs in the case of Sardar Sarovar Project was considered_ by the Narmada Water Disputes c Tribunal and the decision and final order of the Tribunal given in 1979 contains detailed directions in regard to acquisition of land and properties, provision for land, house plots and civic amenities for the resettlement and rehabilitation of the affected families. The resettlement policy has thus emerged and developed along with the D Sardar Sarovar Project."

This Court opined that where two views are permissible, the court ordinarily would not sit in appeal over a policy decision adopted by the government. Regarding displacement of people E on proposed project, it was held:

" ... It is not fair that tribals and the people in undeveloped villages should continue in the same condition without ever enjoying the fruits of science and technology for better 1

F health and have a higher quality of lifestyle. _Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it, eitherthrough their own efforts due to information exchange or due to outside compulsions. It is with this object in view that the H&R plans which are developed are meant to ensure-that those who move must · G be better off in the new locations at government cost. In the present case, the R&R packages of the States, specially of Gujarat, are such that the living conditions of the oustees Will be much better than what they had in their tribal_ hamlets." H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 223

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] -.. As regards the question of necessity to balance the loss of forest because of· activities carried on therein and construction of a dam, it was held:

Fifth Schedule of the ,,Constitution and an area which. is not, / opined as under: ·

"71. While we have strong -reservations with regard to the correctness o.f,;the majority decision in Samatha case, which has not only interpreted the provisions of the G aforesaid Section 3(1) of the A.P. Scheduled Areas Land "' Transfer Regulation, 1959 but has also interpreted the provisions of the Fifth Schedule of the Constitution, the said decision is not applicable in the present case because the law applicable in Madhya Pradesh is not H

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

A similar or identical to the aforesaid Regulation of Andhra Pradesh. Article 145(3) of the Constitution provides that any substantial question of law as to the interpretation-of the provisions of the Constitution can only be decided by a Bench offive Judges. In Samatha case, it is a Bench of B three Hon'ble Judges who by majority of 2:1, interpreted the Fifth Schedule of the Constitution. However, what is important to note here is, as already observed hereinabove, that the provisions of the Madhya Pradesh Land Revenue Code, 1959 and Section 165, in particular, c are not in pari materia with the aforesaid Section 3 of the Andhra Pradesh Regulation."

Furthermore, 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. D Admittedly, even after the provisions thereof having been given ... full effect, the members of the Scheduled Tribe had not been put in possession of their own land for decades.

i=urthermore, we have noticed hereinbefore that the members of the Scheduled Tribe are educated and we can . safely presume that most of them are serving various institutions in the State of Kerala and/ or in other parts 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 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 ~arid would depend upon the type of Scheduled Tribe category in question. 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 Tribe~ of H North-East and in some cases the Islands of Andaman and

STATE OF KERAU\ v. PEOPLES UNION FOR CIVIL 225 LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in ~ mind.

We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest 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 and non-tribals- which has been sought to be achieved, the c provisions of the 1999 Act are intra vires.

In the counter-affidavit filed by the State, it is stated:

" ... It is no doubt true that Act 31 of 1975 was integrated D ·..\ in the light of the non-tribals depriving tribals of their land and the tribals being exploited. However, over the years considering the population of land ratio even the non-tribals occupying land which was once in possession of the tribals stood to have their livelihood seriously jeopardise by total E implementation of Act 31 of 1975. Ultimately; the Government had to consider all the aspects of the matter and the Government found that the optimum solution would be to bring a new legislation. It is in view of this that Act 12 of 1999 has been passed by the State legislature ... " F NON-AVAILABILITY OF THE LAND

19Copy pinpoint19. Mr. Iyer, learned counsel would contend that the State of Kerala is striving hard for making the lands available to the _, tribal people. The learned counsel contended that the State has G approached the Forest Bench of this Court for this purpose. We are, however, not concerned therewith. Keeping in view the ,.), promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. ,If they do not have sufficient land, they may H

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

A have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations 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. B We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot 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 before us by the learned counsel for 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.

EFFECT OF INVALIDATING THE ACT AND CONSEQUENTLY REVIVING OF THE OLD ACT 'E

20Copy pinpoint20. Whether striking down clan enactment as unconstitutional would result in automatic revival of an earlier Act which has been repealed? The High Court wherefor, as noticed hereinbefore, has struck down Section 22 of 1999 Act F providing for repeal of 1975 Act. On the aforesaid premise it was held that the effect must be given to the right accrued under the 1975 Act.

Sections 6(1) and 7 of the General Clauses Act, 1897, · which are relevant for this purpose, read as under:- G "6. Effect of repeal.

Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a H different intention appears, the repeal shall not-

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 227

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

"" (a) revive anything not in force or existing at the time A at which the repeal takes effect; or ... ~

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or B (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment c incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in resp~ct of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

7. Revival of repealed enactments -

(1) In any (Central Act) or Regulations made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.

This section applies also to all (Central Acts) made after the third day of January, 1968 and to all Regulations made ,. on or after the fourteenth day of January, 1887."

In our opinion, there exists a distinction between a statutory rule and a Legislative Act. The Legislature did not want a H

228 SUPREME COURT REPORTS [2009] 11 ,s.c.R.

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 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 B Revenue Officers, under both the Acts, are more or less the same.

We may notice Sections 19 and 22 of 1999 Act, which are relevant. They read :-

C "19. Saving of other laws. - The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force regulating any of the matters dealt with in this Act, except to the extent provided in this Act."

0 "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.

E (2) Notwithstanding t~e 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 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 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."

It is, therefore, evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed.

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 229

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

We may in this connection notice certain decisions relied upon PY Mr. Krishnan.

A. T.B. Mehtab Majid & Co. v. State of Madras, [AIR 1963 SC 928 = [1963] Supp (2) SCR 435 ] was a case of substitution · of an old rule by a new rule. It, therefore, ceased to exist and 8 did not automatically get revived when new rule was held to be invalid.

We are, however, dealing with a Legislative Act, validity wh~reof was determined in the light of constitutional, provisions. c In B.N. Tiwari v. Union of India and others, [ [1965] 2 SCR 421 ], this Court was again dealing with a statutory rule. It was held that the old rule did not revive opining :-

"When th~refore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry D forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive." E However, the legal position was made clear by a Three Judge bench of this Court in West U.P. Sugar Mills v. State of U.P., [ (2002) 2 sec 645 ] whereupon also the learned counsel had placed reliance, stating:- F "18. A perusal of Section 20 shows that several provisions of the Uttar Pradesh General Clauses Act have been made applicable in relation to statutory instruments including the statutory Rules issued under any Uttar Pradesh Act. However, Section 6-C does not find place G in sub-section (2) of Section 20 of the U.P. General Clauses Act. In the absence of application of Section 6-C to the statutory instrument, including the statutory rule, which is the case before us, the contention of the respondents deserves to be rejected. Since Section 6-C of the U.P. General Clauses Act has not been applied to the statutory H

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

A rule framed by the Government of qttar Pradesh, the substituted rule after it became inopera,tive, the old Rule 49 would not revive." ·

The aforementioned observations were, thus, made having regard to the fact that Section 6-C of the U.P. General Clauses 8 Act had not been applied to the statutory Rules, which reads as under:-

"6-C. Repeal or expiration of law-making textual amendments in other laws.-( 1) Except as provided by sub-section (2), where any Uttar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substitution of any matter, the amending enactment is subsequently repealed, the repeal shall not affect the continuance of. any such amendment made by the enactment so repealed and in operation at the time of such repeal.

(2) Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State E Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re-enacted (with or without ... modifications} the amendment of text made thereby shall F also cease to ·operate."

However, the Bench opined:-

"15. It would have been a different case where a G subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the H

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 231

,.. LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] ~ legislature or the authority was denuded of the power to A amend the existing law, in such a case the old law would revive and continue. But it is not the case here."

Mohd. Shaukat Hussain Khan v. State of A.P., ((1974) 2 SCC 376] is a case where the statute was modified and a B different view was taken. I

:,. But the principle laid down therein has been held to be inapplicable in Indian Express Newspapers v. Union of India, l (1985) 1 sec 641 1 c "106. The rule in Mohd. Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State D Legislature. In such a case the earlier law could be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case I where the earlier law had not been either modified or repealed effectively."

Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or 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 modification would not amount "" to a repeal.

In Southern Petrochemical Industries (supra), the H

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

A subsequent Act did not contain the words "unless a different intention appears". It was heltj that the later Act was not different from the earlier Act.

This Court is required to assume that the Legislature did so deliberately. 8 In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submi~sion of Mr. Dayan Krishnan.

c AGRICULTURAL AND NON-AGRICULTURAL LAND ·

21Copy pinpoint21. Classification between agricultural and non-agricu!:- '.al 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 relation to non-agricultural land. Such a power has been noticed hereinbefore. 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 non-agricultural land, having enacted the 1975 Act and, thus, could not have repealed a portion thereof by raising the following contention:

" ... If in a given situation a tribal possess non-agricultural "' """-- F land that only indicates that though the person is a tribal by birth he has come a long way from the way of Scheduled Tribe and has acquired the trappings of non tribals and thereafter has come to own immovable property other than the agricultural land. The exploitation of the tribals has studied would indicate (sic) has always taken G n place by deprivation of the agricultural land of the tribals ... .... ...... Once they 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 H ....

STATE OF KERALA v. PEOPLES UNION FOR CIVIL 233

LIBERTIES, KERALA STATE UNIT [S.B. SINHA, J.] right conferred on the owners of the non-agricultural land, A therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be .applied. The State has no legislati~ competence to repeal that portion of the 1975 ~ B For the reasons aforesaid, Civil Appeal Nos. 104-105 of 2001 and 899 of 2001 are allowed in part to the extent mentioned above.

In view of our judgment in Civil Appeal Nos. 104-105 of C 2001 and 899 .of 2001, no orders are called for in Civil Appeal No. 7079 of 2001. No costs

G.N. Appeals partly allowed.