Full Judgment Text
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PETITIONER:
DISTRICT COUNCIL OF UNITED KHASI & JAINTIA HILLS& ORS. ETC.
Vs.
RESPONDENT:
MISS SITIMON SAWIAN ETC.
DATE OF JUDGMENT25/08/1971
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SIKRI, S.M. (CJ)
MITTER, G.K.
VAIDYIALINGAM, C.A.
REDDY, P. JAGANMOHAN
CITATION:
1972 AIR 787 1972 SCR (1) 398
1971 SCC (3) 708
CITATOR INFO :
RF 1986 SC1930 (11)
ACT:
Constitution of India 1950-Sixth Schedule-Para 3(1)(a)-Power
of District Council to make law with respect to "allotment,
occupation or use, or the setting apart of land"-If includes
power to make laws with respect to transfer of land-United
Khasi-Jaintia Hills District (Transfer of Land) Act, 1953-
Section 3-Constitutionality of.
HEADNOTE:
By virtue of the Sixth Schedule to the Constitution the
United Khasi Jaintia Hills District has been constituted
into an autonomous district with a District Council. Para
3(1)(a) of the Schedule authorises the District Council to
make laws "with respect to" "the allotment occupation or
use, or the setting apart, of land", for the purposes
mentioned therein. The District Council passed the United
Khasi-Jaintia Hills District (Transfer of Land) Act, 1953
section 3 of which provided that "no land, within -the
District shall be sold, mortgaged leased bartered gifted or
otherwise transferred........ The preamble to the Act
recited that it was "necessary to make provisions in the
Autonomous District of the United Khasi Jaintia Hills with
respect to the transfer, allotment, occupation or use of
land for any purposes likely to promote the interests of the
inhabitants thereof". On the question whether para 3(1)(a)
of the Sixth Schedule confers on the District council power
to make laws with respect to transfer of land,
HELD : The subject of transfer is clearly beyond the scope
of the law-making power conferred on the District Council by
the Constitution and therefore, s. 3 of the impugned Act is
void being beyond the jurisdiction of the District Council.
The bracketing together of the words "allotment, occupation
or use, or -setting apart of land" for the purposes
mentioned therein without using words like "transfer" or
"alienation" is clearly indicative of the Constitution
makers’ intention to restrict power of the District Council
only to make laws with respect to actual use or occupation
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of the land allotted or set apart for the purposes stated
therein. It was not intended to extend to "transfer of
land". Nor can the words used in para 3(1)(a) of the
Schedule be read as implying transfer. The purpose, object
and scheme of making such provision for the hill areas also
goes against inclusion of the power of transfer. And the
addition, in the preamble to the Act, of the word "transfer"
to the words allotment occupation or use of land" used in
para 3 (1) (a) of the Schedule is indicative of an intent to
enlarge the scope of the object and purpose of enacting the
impugned Act beyond the limits of the power conferred by the
Constitution. [404 G-H, 405 B, 404 B]
It is clear from Para 12 of the Sixth Schedule read with
para 3 (1) (a) that the District Councils, unlike the
Parliament and the State Legislatures are not intended to be
clothed with plenary power of legislation. Their power to
make laws is expressly limited by the provisions of the
Sixth Schedule which has created them and they can do
nothing beyond the
399
limits which circumscribe their power. it is beyond the
domain of the courts to enlarge constructively their power
to make laws. [407 A-B]
Further, the proviso to para 3(1)(a) merely serves to ensure
that no law made by the Regional and District Councils with
respect to allotment, occupation or use or setting apart, of
land, as mentioned in that clause, shall have, the effect of
preventing compulsory acquisition of land for public
purposes, by the Government of Assam in accordance with the
law in force authorising such acquisition. The proviso does
not in any way after the operative effect of clause (a).
[407 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1546 and
1547 of 1968.
Appeals from the judgment and order dated June 3, 1968 of
the Assam and Nagaland High Court in Civil Rules Nos. 384
and 408 of 1965.
Niren De, Attorney-General and D. N. Mukherjee, for the
appellants (in both the appeals).
A.K. Sen, P. K. Chatterjee and Rathin, Das, for the
respondents (in both the appeals).
The Judgment of the Court was delivered by
Dua, J. The short question requiring decision in these
appeals on certificate of fitness granted by the’ High Court
of Assam and Nagaland under Art. 132(1) of the Constitution
relates to the validity of s. 3 of the United Khasi-Jaintia
Hills District (Transfer- of Land) Act (No. IV of 1953)
(hereinafter called the impugned Act), passed by the United
Khasi-Jaintia Hills District Council (hereinafter called the
District Council The High Court struck down this section as
beyond the competence of the District Council and also as
offending Art. 14 of, the Constitution. The facts giving
rise to these appeals are not in dispute. It is, however,
unnecessary to state them because the question of ’the
constitutional validity of s. 3 of ’the impugned Act falls
for determination solely on the interpretation 1 of the
relevant provisions of the Constitution without any
reference to the facts.
Part X of the Constitution dealing with the Scheduled and
Tribal Areas consists of the solitary Art. 244 which
provides for the administration of such areas. According to
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sub-Art. (2) of this Article the provisions of the Sixth
Schedule of the Constitution apply to the administration of
the tribal areas in Assam. By virtue of Para 1 (1) read
with Para 20 and Part A of the Table appended to this
Schedule the United Khasi-Jaintia Hills District has been
constituted into an autonomous District and under Para 2 ( 1
) of the Schedule there has to be a District Council for
each autonomous District with not less than three-fourths of
its members to be elected on the basis of adult suffrage.
Para 3 (1 ) (a)
400
of the Schedule with which we are directly concerned in
these appeals reads as under :-
3.Powers of the District Councils and Regional
Councils to make laws.-
(1)The Regional Council for an autonomous
region in respect of all areas within such
region and the District Council for an
autonomous district in respect of all areas
within the district except those which are
under the authority of Regional Councils, if
any, within the district shall have power to
make laws with respect to-
(a) the allotment, occupation or use, or the
setting apart, of land, other than any land
which is a reserved forest, for the purposes
of agriculture or grazing or for residential
or other non-agricultural purposes or for any
other purposes likely to promote, the
interests
of the inhabitants of any village or town:
Provided that nothing in such laws shall
prevent the compulsory acquisition of any
land, whether occupied or unoccupied, for
public purposes by the Government of Assam in
accordance with the law for the time being in
force authorising such acquisition;"
As its preamble shows the impugned Act was enacted because
it was considered "necessary to make provisions in the
autonomous district of the United Khasi-Jaintia Hills with
respect to the transfer, allotment occupation or use of land
for any purposes likely to promote the interests of the
inhabitants thereof". Section 3 thereof provides as follows
:
"No land within the District shall be sold,
mortgaged, leased, bartered, gifted or
otherwise transferred by tribal to a non-
tribal or by a non-tribal to another non-
tribal, except with the previous sanction of
the District Council :
Provided that no sanction will be necessary in
the case of lease of a building on rent
Provided further-
(a) That sanction shall not be accorded to
the sale from a tribal to a non-tribal if the
intended transferee either already holds one
piece Of house property or land in Shilling,
within 5 miles from the Deputy Commissioner’s
Court
401
either is his name or in the name or names. of
other members of his family or falls within
the category (in the opinion of the Chief
Executive Member) of the class of profiteering
landlords;
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(b) That reason shall be recorded for any
refusal of transfer from a tribal to a non-
tribal or from a non-tribal to another non-
tribal."
The narrow question posed in the present controversy is
whether para 3 (1 ) (a) of the Sixth Schedule confers on the
District Council power to make laws with respect to transfer
of land; in other words whether the subject of transfer of
land is covered by the expression "allotment, occupation or
use or the setting apart of land."
The High Court has held that Para 3 (1) (a) of the Sixth
Schedule does not empower the District Council to legislate
with respect to transfer of land. According to that Court
the expression "the allotment, occupation or use, or the
setting apart of land. . . " does not take within its fold
"transfer of land".
The learned Attorney-General has questioned the correctness
of this view and has submitted that bearing in mind the
legislative history of the Sixth Schedule which reflects the
real object and purpose of inserting in the Constitution a
separate provision for the administration of tribal areas in
the State of Assam, the expression in question as used in
cl. (a) of para 3 (1 ) must be given a wider meaning so as
to include ’transfer of land’. The learned Attorney-General
has in support of this submission drawn our attention to
Art. 46 of the Constitution which embodies as one of the
directive principles of State policy, requiring the State to
promote with special care the educational and economic
interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled
Tribes, and to protect them from social injustice and all
forms of exploitation. Reference has also been made by him
to certain portions of the report of the Sub-Committee on
North-East Frontier (Assam) Tribal and Excluded Areas
submitted in July, 1947 to the Advisory Committee on
"fundamental rights, minorities, tribal areas etc." of the
Constituent Assembly, entrusted with the task of- framing
the Constitution of India. The Advisory Committee accepted
the recommendations to which reference has been made by the
learned Attorney General. In that report, emphasis was laid
on the anxiety of the Hill people of the North-Eastern
Frontier areas about their land and fear of their
exploitation by the people from the more advanced and
crowded areas in the plains. The atmosphere of fear and
suspicion prevailing in the hill areas even though
considered by some to be unjustified, was felt to.-be a
reality, and in order to allay those suspicions and fears
the necessity of making
402
requisite provisions by way of constitutional safeguards was
emphasised. According to the report there was an emphatic
unanimity of opinion among the hill people that there should
be control of immigration of outsiders and of allocation of
land to them, such control being already vested in the hill
people themselves. In the areas where no right to private
property or proprietary right of the hereditary chief was
recognised, the land, including the forests, was regarded as
the property of the clan. It was accordingly recommended in
the report, to quote its own words:
"..... that the Hill Districts should have
powers of legislation over occupation or use
of land other than land comprising reserved
forest under the Assam Forest Regulation of
1891 or other law applicable. The only
limitation we would place upon this is to
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provide that the, local councils should not
require payment for the occupation of vacant
land by the Provincial, Government for public
purposes or prevent the acquisition of private
land, also required for public purposes, on
payment of compensation."
According to the submission of the learned Attorney General
para 3 (1) (a) of the Sixth Schedule must be held to have
been intended to carry out the above recommendation of the
aforementioned sub-committee duly. accepted by the Advisory
Committee concerned.
Support for the construction of cl. (a) of para 3(1) of the
Sixth Schedule as suggested by the learned Attorney General
has been sought from the decision of the Federal Court in
Bhola Prasad v. The King-Emperor(1) and from a recent
decision of this Court in Indu Bhusan Bose v. Rama Sundari
Devi & anr(2). In Bhola Prasad’s case(1) it was observed
that the expression "with respect to" contained in s. 100(3)
of the Government of India Act, 1935, which gives to a
Provisional Legislature power to make laws for the Province
or any part thereof should be given a wide construction. On
this analogy the learned Attorney-General has contended that
the expression "with respect to" contained in para 3(1) also
deserves to be construed widely so as to include within the
expression "the allotment, occupation or use" employed by
the Constitution in cl. (a) ’transfer of lands".In Indu
Bhusan Bose’s case (2) this Court construed the word "
regulation" in the expression" regulation of house
accommodation’ in Entry No. 3, List I, in the Seventh
Schedule of the Constitution of India to be wide enough to
include within it all aspects as to who is to make the
constructions, under what conditions the
(1) [1942] F.C.R. 17. (2) [1970] 1 S.C.R. 443.
403
constructions can be altered, who is to occupy the
accommodation and for how long, on what terms it is to be
occupied, when and under what circumstances the occupant is
to cease to occupy it, and the manner in which the
accommodation is to be utilised. On the analogy of these
two decisions, the learned Attorney General has tried to
persuade us to hold that the expression "the allotment,
occupation or use" occurring in para 3 (1 ) (a) must be
deemed to have been intended to be used in a wide sense so
as to include transfer of land.
The proviso to cl. (a) of para 3 (1) of the Sixth Schedule,
according to the learned Attorney-General, should not be
construed as indicative of the narrower construction,
namely, that the expression "the allotment, occupation or
use" as used in that clause did not cover transfer of land.
According to his contention the proviso merely places a
restricted limitation on the power of the District Council
to make laws by providing that no law made by the Council
shall prevent acquisition of land for public purpose by the
Government of Assam in accordance with law. It has been
argued that the meaning and scope of a proviso is to be
determined according to the legislative intent, there
being no fixed rule of universal application governing its
function, and that in the present case the legislative
intent does not go beyond the limitation suggested by the
learned Attorney-General. He has cited Commissioner of
Commercial Taxes & ors. v. R. S. Jhaver & ors.(1) in which
it was explained that the question whether a proviso in a
given case is, by way of an exception or a condition to the
substantive provision or whether it is in itself a
substantive provision, must be determined on the substance
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of the proviso and not its form.
On behalf of the respondents Shri A. K. Sen has drawn our
attention to certain passages from "Notes on Khasi Law" by
Keith Cantlie of the Indian Civil Service, who was Deputy
Commissioner of the Khasi and Jaintia Hills (1930-34).
Those passages which are found in Ch. XIII dealing with
"Land Tenures in the States" contributed by Mr. David Roy of
Assam Civil Service, do not, in our view, usefully add to
the information contained in the report of the Sub-Committee
to which the learned Attorney-General has already drawn our
attention.
We have given full consideration to the arguments addressed
by the learned Attorney-General, but we feel that the High
Court was right in placing the construction it did on the
scope and effect of cl. (a) of para 3 (1) of the Sixth
Schedule.
(1) [1968] 1 S.C.R. 148.
404
On the plain reading of para 3 (1) (a) of the Sixth Schedule
and of the preamble and S. 3 of the impugned Act the first
prima facie difficulty which one faces in accepting the
appellant’s argument is created by the departure by the
District Council from the language used in para 3 (1) (a) of
the Schedule in the language used in the preamble and S. 3
of the impugned Act. The addition in the preamble of the
word "transfer" to the, words "allotment, occupation or use
of land. . . . " used in para 3 (1) (a) of the Schedule is
indicative of an intent to enlarge the scope of the object
and purpose of enacting the impugned Act beyond the limits
of the power conferred by the Constitution. And then in s.
3 of the impugned Act we find that a completely different
phraseology has been employed for prohibiting various kinds
of transfers in express terms. This leaves no doubt about
the great importance attached by the District Council to the
addition of the word "transfer" in the preamble to, the
expression actually used in the Sixth Schedule for
conferring legislative power on the District Council. No
convincing explanation has been offered for this departure
from the language used in the Constitution from which alone
the District Council draws its power to make laws. If, as
is forcefully contended on behalf of the appellant, the
words used in para 3 (1) (a) of the Sixth Schedule are
comprehensive enough to include within their sweep "transfer
of land" then it is not understood where was the necessity
of adding the word "transfer" in the preamble and using a
wholly different phraseology in s. 3 of the impugned Act.
The law maker, it may be pointed out. may well be presumed
ordinarily not to waste words by adding them as mere
surplusage.
We now proceed to deal with the arguments relating to the
meaning of the controversial words used in para 3 (1 ) (a)
of the Schedule. The word "allot" according to standard
dictionaries means, distribute by lot, or in such a way that
the recipients have no choice,- to assign as a lot or
apportion to; and the word "allotment" means, apportioning
the action of allotting; share allotted to one; small
portion of land let out for cultivation. The words
"occupation" and "use" by themselves do not convey the idea
of transfer of title. Similarly the "setting apart of land"
for the purposes mentioned in cl. (a) cannot be read as
implying transfer of title. The bracketing together of the
words "allotment, occupation or use, or setting apart of
land" for the purposes mentioned therein without using words
like "transfer" or "alienation" is clearly indicative of the
Constitution makers’ intention to restrict power of the
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District Council only to make laws with respect to actual
use or occupation of the land allotted or set apart for the
purposes stated therein. It was not intended to extend to
"transfer of land". Words like "transfer" or "alienation of
land", it may be pointed out, have been used in the Seventh
Schedule to
405
the Constitution when describing the-power of the State
Legislature to make laws vide Entry 18, List II. There is
no cogent .-round why such expression could not be used in
para 3 (1) (a) also, if power to make laws with respect to
transfer of land was intended to be conferred on the
District Council. In our opinion, the plain language of
this sub-para does not admit of any ambiguity and no
compelling reasons have been brought to our notice why the
language should be unduly stretched so as to include the
power of transfer. The purpose, object and scheme of making
such provision for the hill areas also goes against the
appellant’s contention.
It therefore seems to us to be quite clear that the framers
of the Constitution wanted to confine the power of the
District Councils to make laws under para 3 (1) (a) to the
distribution or setting apart, of the land mentioned therein
only for the purposes of occupation or use as expressly
stated therein, without intending to extend that power to
the transfer of land. This construction is not only in
accord with the real sense discernible from the plain
meaning of the language used in. this clause, but it also
serves more effectively to carry out the manifest purpose,
policy and scheme underlying the provisions of the
Constitution, namely, protection of the hill people in the
North-Eastern Hills Districts against exploitation by the
more sophisticated outsiders from the plains than the
construction which would extend the District Councils’ power
of making laws to the transfer of land. The report of the
Sub-Committee referred to earlier clearly supports this
construction. The passages from the report to which our
attention has been drawn do not show that power to make laws
for transfer of land was recommended to be vested in the
District Councils. On the other hand, the recommendations
contained in the report were restricted to the power to
control only use and occupation of the land and it was this
limited power which was recommended to be vested in the
District Councils. This would be clear from the following
passage in the report :
"Accepting this then as a fundamental feature
of the administration of the hills, we
recommend that the Hill Districts should have
powers of legislation over occupation or use
of land other than land comprising reserved
forest under the Assam Forest Regulation of
1891 or other law applicable. The only
limitation we would place upon this is to
provide that the local councils should not
require payment for the occupation of vacant
land by the Provincial Government for public
purposes or prevent the acquisition of private
land, also required for public purposes, on
payment of compensation."
406
The argument that in construing the provisions conferring
power to legislate the words should be interpreted broadly
and no narrow or pedantic interpretation should be placed
upon them is, in our opinion, inapplicable to the case in
hand. The power of legislation conferred on bodies like the
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District Councils, which concerns us, must be confined
strictly within the limits prescribed by the plain language
used and the doctrine of wide construction visions
conferring plenary nature of legislative power on the Par-
liament or State Legislatures in which case the appellant’s
argument may be more appropriately accepted. We consider it
proper at this stage to refer to para 12 of the Sixth
Schedule which provides :
"12. Application of Acts of Parliament and of the
Legislature of the State to autonomous districts and
autonomous regions.--(1) Notwithstanding anything in this
Constitution--
(a) no Act of the Legislature of the State
in respect of any of the matters specified in
paragraph 3 of this Schedule as matters with
respect to which a District Council or a
Regional Council may make laws, and no Act of
the Legislature of the State prohibiting or
restricting the consumption of
any non
distilled alcoholic liquor shall apply to any
autonomous district or autonomous region
unless in either case the District Council for
such district or having jurisdiction over such
region by public notification so directs, and
the District Council in giving such direction
with respect to any Act may direct that the
Act shall in its application to such district
or region or any part thereof have effect
subject to such exceptions or modifications as
it thinks fit;
(b) the Governor may, by public
notification, direct that any Act of
Parliament or of the Legislature of the State
to which the provisions of clause (a) of
this sub-paragraph do not apply shall not
apply to any autonomous district or an auto-
nomous region, or shall apply to such district
or region or any part thereof subject to such
exceptions or modifications as he. may specify
in the notification.
(2) Any direction given under sub-paragraph (1) of this
paragraph may be given so as to have retrospective effect."
407
It is clear from this provision, read with para 3 (1) (a)
already, reproduced, that the District Councils unlike the
Parliament and the State Legislatures are not intended to be
clothed with plenary power of legislation. Their power to
make laws is expressly limited by the provisions of the
Sixth Schedule which has created them and they can do
nothing beyond the limits which circumscribe their power.
It is beyond the domain of the courts to enlarge
constructively their power to make laws.
The proviso to para 3 (1) (a) merely serves to ensure that
no, law made by the Regional and District Councils with
respect to, allotment, occupation or use or setting apart,
of land, as mentioned in that clause, shall have the effect
of preventing compulsory acquisition of land for public
purposes, by the Government of Assam in accordance with the
law in force authorising such acquisition. This proviso by
no means enlarges the scope of the power conferred on the
Regional and District Councils by cl. (a) and indeed it has
not been so claimed by the learned Attorney General. A
proviso may undoubtedly be sometimes inserted to, allay
fears considered by some to be unfounded. But the question
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must ultimately come back to the point whether or not power
to make laws conferred by cl. (a) includes the power to do
so, with respect to transfer of land and this must turn upon
the exact language and its primary meaning. The simple
words used in cl. (a) are incapable of bearing the
construction suggested by the learned Attorney-General and
the provision found in the proviso does not in any way alter
the operative effect of this clause.
The preamble of the impugned Act no doubt does speak of the
necessity to make provisions with respect to "transfer,
allotment, occupation or use of land for any purpose likely
to promote the interests of the inhabitants thereof" but the
subject of transfer is clearly beyond the scope of the law-
making power conferred on the District Council by the
Constitution and to that extent, therefore, the impugned Act
which means S. 3 thereof is void being. beyond the
jurisdiction of the District Council.
On the view we have taken of the plain meaning of para 3 (1)
(a) of the Sixth Schedule it is unnecessary to consider the
other points relating to the violation of Art. 14 of the
Constitution. This Court normally does not decide points
which are not strictly necessary for disposing of the appeal
before it.
This appeal accordingly fails and is dismissed with costs.
K.B.N. Appeal dismissed:
408