Full Judgment Text
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PETITIONER:
LINGAPPA POCHANNA APPELWAR AND ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA AND ANR. ETC.
DATE OF JUDGMENT04/12/1984
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1985 AIR 389 1985 SCR (2) 224
1985 SCC (1) 479 1984 SCALE (2)1022
CITATOR INFO :
RF 1986 SC1571 (83)
D 1988 SC1626 (15)
R 1992 SC 195 (6A)
ACT:
Constitution of India 1950, Articles 14, 19 (1) (f ),
31, 46 and Entry 18 List II Seventh Schedule: Maharashtra
Restoration of Lands to Scheduled Tribes Act 1974, Sections
2 (1) (i), 3, 4 and 9A & Advocates Act 1961, Section 30.
State enactment providing for annulment of transfers of
agricultural lands by tribals to non-tribals and for
restoration of possession-State legislature-Competency to
enact-Enactment whether valid and constitutional-Prescribing
a date for annulment of transfers-Whether arbitrary and
void-Bar on advocates appearing in proceedings under the
Act-Whether valid and reasonable.
Statutory Interpretation-Distributive justice-what is-
Law to be used as instrument of distributive justice-
Emphasised.
HEADNOTE:
Legislation was undertaken by different States placing
restrictions on transfer of lands by members of Scheduled
Castes and Tribes in pursuance of the declared policy of the
State of safeguarding, protecting and improving the
conditions of weaker sections of the society by providing
that any such transfer except in terms of the provisions of
the different Acts shall be null and void.
The State Government of Maharashtra by a Government
Resolution appointed a Committee to inquire into and report
on how far the provisions of the Maharashtra Land Revenue
Code, 1966, the Bombay Tenancy & Agricultural Lands
(Vidharbha Region) Act, 1958 the Hyderabad Tenancy and
Agricultural Lands Act, 1950 and the Bombay Tenancy and
Agricultural Lands Act, 1948 had been effective in giving
protection to persons belonging to Scheduled Tribes and to
suggest suitable amendments, if any of the existing
provisions were found to be inadequate. The Committee
submitted its Report, and pointed out that inspite of
section 36 (2) Maharashtra Land Revenue Code 1966, and
analogous provisions in the earlier Land Revenue Laws, these
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were not found sufficient, and persons belonging to the
Scheduled Tribes because of their poverty, lack of education
and general backwardness had been exploited by various
persons and deprived of their lands, and recommended that
pro. vision should be made for restoring to persons
belonging to Scheduled Tribes the lands which had been duly
transferred to other persons. After considering the
aforesaid recommendation, the State Government of
Maharashtra enacted
225
the Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974. This Act was included in the Ninth Schedule of
the Constitution.
The Appellant purchased agricultural lands from the
father of Respondent No. 2 by a registered sale deed with
the prior permission of the Collector as required by Section
47 of the Hyderabad Tenancy and Agricultural Lands Act. 1950
and was placed in possession thereof. The Sub-Divisional
Officer finding that the vendor was a gond, and a tribal
within the meaning of section 2 (1) (j) of the Act initiated
suo motu proceedings under section 3 (1) of the Act for
restoration of the lands to respondent No. 2, and after
enquiry finding that respondent No. 2 had given an
undertaking in form III that he required the land for his
personal cultivation and was willing to deposit the amount
fixed by him for payment of the appellant, directed under
section 3 (1) (ii) of the Act that possession should be
restored to respondent No 2.
The appellant preferred an appeal under section 6 to
the Land Revenue Tribunal, which upheld the order passed by
the Sub-Divisional Officer. The Writ Petition of the
appellant, was dismissed in limine and this order was
confirmed by a Division Bench of the High Court.
In the Appeals to this Court, it was contended on
behalf of the appellants: (1) that sections 3 (1) and 4 of
the Act which provide for annulment of transfers of land by
tribals to non-tribals effected during the period from April
1, 1957 to July 6, 1974 and for restoration of possession to
them was beyond the legislative competence of the State
under Entry 18 in List 2 of the Seventh Schedule, (2)
sections 3 (1) and 4 are inconsistent with, take away and
abridge the fundamental rights conferred by Articles 14, 19
(1) (f) and 31, (3) The adoption of the date April 1, 1957
as the date from which there was to be an annulment of
transfer under sections 3 (1) and 4 was arbitrary and void
as contravening Article 14, (4) The Act was violative of
Article 14 because it treats equals unequally: in that
members of Scheduled Castes who also constitute the weaker
section of the society have been discriminated against and
there was preferential treatment afforded to non-tribal
transferees who had diverted the lands purchased by them to
non-agricultural purposes. (5) The definition of non-tribal
transferee contained in section 2 (1) (i) offends Article 14
as it permitted an assignee of non-tribal transferee
effected prior to March 15, 1971 to escape the consequence
of annulment under section 3 (1) and 4, (6) Sections 9A was
constitutionally void as it affected the fundamental right
of an advocate enrolled by the State Bar Council to carry on
his profession guaranteed by Article 19 (1) (g), and the
right of the appellants who are non-tribals by being
prevented to be represented by a legal practitioner of their
choice.
Dismissing the Appeals.
^
HELD: I (i) our Constitution permits and even directs
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the State to administer what may b- termed ’distributive
justice’. The concept of distributive justice in the sphere
of law-making conntes, the removal of economic inequalities
and rectifying the injustice resulting from dealings or
transactions between
226
unequals in society. Law should be used as an instrument of
distributive justice to A achieve a fair division of wealth
among the members of society based upon the principle: ’From
each according to his capacity, to each according to his
needs’. Distributive justice comprehends more than
achieving, lessening of inequalities by differential
taxation, giving debt relief or distribution of property
owned by one to many who have none by imposing ceiling on
holdings, both agricultural and urban, or by direct
regulation of contractual transactions by forbidding certain
transactions and, perhaps, by requiring others. l239F-H;
240A]
(ii) The present legislation is a typical illustration
of the concept of distributive justice. It is nothing but a
remedial measure in keeping with the policy of the State for
rendering social and economic justice to the weaker sections
of the society. It is intended and meant as an instrument
for alleviating opperession, redressing bargaining
imbalance, cancelling unfair advantages, and generally
overseeing and ensuring probity and fair dealings.’[239E;
241E; 242C]
It seeks to reopen transaction between parties having
unequal bargaining power resulting in transfer of title from
own to another due to force of circumstances and also seeks
to restitute the parties to their original position.
[242C]
Manchegowda & Ors. v. State of Karnataka & ors. [l984]
3 SCC 30I, Fateh Chand Himmatlal v. State of Maharashtra
[1977] 2 SCR 828 & Pathumma ate of Kerela [1978] 2 S.C.R.
537, referred to.
2 (i) The Act strikes at transactions relating to
agricultural lands effected between members of Scheduled
Tribes who admittedly belong to the weaker sections of the
society and persons not belonging to Scheduled Tribes.
Experience in the past showed that members of the Scheduled
Tribes had been exploited due to their ignorance and poverty
by members belonging to the affluent and powerful sections
of the society to obtain transfer of their lands by way of
sale, gift, mortagage, exchange etc. for a nominal
consideration or for no consideration at all rendering them
practically landless. The Sub Divisional Officers and
Collectors due to their multifarious duties accorded
sanction to such transfers without application of mind to
the prevalent circumstances. The Committee appointed by the
State Government pointed out in its Report that the
provisions of the Maharashtra Land Revenue Code 1966 and the
relevant tenancy Laws that were in existence had not been
effective in giving protection to persons belonging to the
Scheduled Tribes and recommended that provisions should be
made for restoring to members of Scheduled Tribes the lands
which had been duly transferred by them to other persons.
The Legislature therefore stepped in and reopened such
transactions by directing that lands be restored to the
tribal transferers free from all encumbrances on payment by
them to the non-tribal transferees the amounts determined by
the Collector under Sub-section (4) of s. 3. [246E-H: 247A-
C]
(ii) The restoration of possession by sections 3 (1)
and 4 does not involve any deprivation of the property in
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the sense that there is unsettling of title without
consideration. It makes detailed provisions setting out the
conditions subject to which a transfer by a tribal of his
agricultural lands to a non-tribal
227
may be nullified and possession restored. The object of the
legislation is restitution of the property to the persons to
whom the lands originally belonged, A subject to the
adjustment of equities between the parties. [247D-F]
(iii) The 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 III but is within Entry 18 in
List II. 1217G] R
(iv) The words ’other than agricultural land’ in Entry
6 and the words ’but not including contracts relating to
agricultural land in Entry 7 in List III have the effect of
delimiting the legislative power of the union to make a law
with respect to contracts in relation thereto. 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 power to make
a law to reopen such transfers and alienations. Such a law
relatable to Entry 18 in list II of the Seventh Schedule was
clearly within the legislative competence of the State
Legislature. [248B-D]
3. The Act having been placed in the Ninth Schedule of
the Constitution the submission that sections 3(1) and 4 are
inconsistent with, or take away or abridge any of the
fundamental rights conferred by Art. 14, Art. l9(1)(f) or
Art. 31 of the Constitution must be rejected at the very
threshold because it is protected under Art. 31B. [248F]
4. (i) It is permissible for the legislature to make a
classification on the basis of time for a law to operate.
What is necessary is that there must be a reasonable nexus
between the basis of classification as to time and the
object sought to be achieved. [248H]
(ii) The Act adopts April 1,1957 for nullification of
transfers made by tribals to non-tribals under sections 3(1)
and 4 because that was the ’tillers’ day. for purposes of
the Bombay Tenancy & Agricultural Lands Act, 1948, on the
basis of which the non-tribal transferees could apply to the
Tenancy Court for purchase of their holdings on the ground
that they were in cultivating position thereof. There was
therefore reasonable nexus for the fixation of such date and
the object sought to be achieved and the impugned Act is not
violative of Art. 14. [249A-B]
5. (i) The appellants who were transferees from members
of scheduled Tribes cannot possibly plead the cause of
members of Scheduled Castes Members of Scheduled Tribes i.e.
tribals who are mostly aboriginals constitute a distinct
class who need a special protection of the State. [249E]
(ii) There is no question of any differential treatment
between two classes of persons equally situate when a part
of the land is diverted to a nonagricultural 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 by
tribals under Entry 18 in List II as
228
the lands having been diverted to non-agricultural purposes
ceased to be A agricultural lands. In the case of such non-
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agricultural land, if the State Legislature made such a law
it would not be effective unless it was reserved for the
assent of the President and received such assent. [249G-H;
250A]
6. The expression ’non-tribal transferee’ as defined in
section 2 (1) (i) is an inclusive one. It is not correct to
say that it permits an assignee of a non-tribal transferee
effected prior to March 15,1971 to escape the consequences
of annulment under sections 3(1) and 4 of the Act. The
Legislature appointed March IS, 1971 with a view to give
retrospective effect to the provisions of Sections 3(1) and
4 of the Act as that was the dale on which the Government
constituted the Committee to inquire into and report to the
State Government on how far the provisions of the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws had been effective in giving protection to persons
belonging to Scheduled Tribes. The provisos to sections 3(1)
and 4 are meant to mitigate the hardship which otherwise
would because to a non-tribal transferee who would again be
rendered landless if he were required to restore the entire
land under sections 3(1) and 4 of the Act. [250B-D;; G]
7. (i) A person enrolled as an advocate under the
Advocate’s Act, 1961 is not ipso facto entitled to a right
of audience in all Courts unless section 30 of the Advocates
Act, 1961 is first brought into force. The right of an
Advocate brought on the rolls to practice is, just what is
conferred on him by sections 14(1)(a), (b) and (c) of the
Bar Councils Act 1926. Section 9A is not therefore an
unconstitutional restriction on advocate’s right to practice
their profession. [251G-H; 252A]
(ii) Apart from the provisions of Art. 22(1) of the
Constitution, by which an accused who is arrested and
detained in custody is entitled to consult and be defended
by a legal practitioner of his choice, no litigant has a
fundamental right to be represented by a lawyer in any
Court, In all other matters i.e. in suits or other
proceedings in which the accused is not arrested and
detained on a criminal charge, the litigant has no
fundamental right to be represented by a legal practitioner
. [252B-C]
(iii) The legislature felt that for implementation of
the legislation. it would not subserve the public interest
if lawyers were allowed to appear, plead or act on behalf of
the non-tribal transferees. A tribal and a non-tribal are
unequally placed and non-tribal transferee being a person
belonging to the more affluent class, would unnecessarily
protract the proceedings before the Collector under sections
3(1) and 4 by raising all kinds of pleas calculated to delay
or defeat the right of the tribal for restoration of his
lands. The proceedings be. fore the Collector have to be
completed with sufficient despatch and the transferred lands
restored to a tribal without any of the law’s delays. [252D-
E]
JUDGMENT:
CIVIL, APPELLATE JURISDICTION : Civil Appeal No. 4384
of 1984.
From the Judgment and order dated 27.6.84 of the Bombay
High Court in L.P.A No. 147 of 84 in W.P. No. 1624 of 1977.
AND
Civil appeal No. 3288 of 1984.
229
(From the judgment & order dated 21.6.84 of the Bombay
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High Court in L.P.A. No. 135 of 1984.)
V.B. Joshi for the appellant in both the appeals.
V.S. Desai and M.N. Shroff for the respondents in both
the appeals.
The Judgment of the Court was delivered by B
SEN, J. These two appeals by special leave are directed
against the judgments and orders of a Division Bench of the
Nagpur Bench of the Bombay High Court dated June 21 and 27,
1984 and raise a common question relating to the
constitutional validity of ss 3 and 4 of the Maharashtra
Restoration of Lands to Scheduled Tribes Act, 1974. The
question is whether ss.3 and 4 of the impugned Act which
provided for annulment of transfers made by members of
Scheduled Tribes and for restoration of lands to them on
certain conditions were ultra vires the State Legislature as
being beyond the purview of Entry 18 of List II of the
Seventh Schedule or were otherwise violative of Art. 14,
Art. 19(1)(f) and Art. 31 of the Constitution.
Facts in these two appeals are more or less similar. In
Civil Appeal No. 4384 of 1984, the appellant Lingappa
Pochanna Appelwar had by a registered sale-deed dated
November 30, 1965 purchased agricultural land bearing
Survey No. 27 having an area of 20 acres 39 gunthas from
Raju Meshram, father of respondent No. 2 Sonerao Raju
Meyhram who being a gond was a tribal within the meaning of
s.2(1)(j) of the Act for a consideration of Rs. 1300 with
the prior permission of the Collector as required by s.47 of
the Hyderabad Tenancy & Agricultural Lands Act, 1950 and was
placed in possession thereof. Suo motu proceedings were
started by the Sub-Divisional Officer, Rajura in District
Chandrapur under s.3(1) of the Act for restoration of the
lands to respondent No. 2. The Sub-Divisional officer
initiated an inquiry, summoned the parties and recorded
their statements. By his order dated February 19, 1977 he
held that it was admitted by the appellant that his
transferor Raju Meshram was a gond and therefore a tribal
under s.2(1)(j) of the Act, that no improvements had been
made by him on the land and that there were no encumbrances
thereon. He therefore held that the case falls within s.3(1)
of the Act and recorded that respondent No. 2 Sonerao Raju
Meshram, the tribal, had given an undertaking in Form Ill
that he required the land for his personal cultivation and
was willing to deposit the amount fixed by him for
230
payment to the appellant. He accordingly directed in
exercise of the powers vested in him under s.3(1)(ii) of the
Act that possession of an area of 19 acres 19 gunthas out of
Survey No. 27 be taken from the appellant and restored to
respondent No. 2 on payment of Rs. 461.76p. towards the
consideration equal to 48 times of the assessment as
required by s.3(4)(b) after setting apart a part of the
remaining portion of 1 acre 20 gunthas covered by a dwelling
house. The appellant preferred an appeal under s.6 of the
Act to the Maharashtra Land Revenue Tribunal, Nagpur but a
Single Member of the Tribunal by his order dated August 5,
1977 upheld the order passed by the Sub-Divisional officer.
The appellant than filed a writ petition before the Nagpur
Bench of the Bombay High Court assailing the orders of the
Maharashtra Land Revenue Tribunal as well as that of the
Sub-Divisional officer. A learned Single Judge by his order
dated March 13, 1984 dismissed the writ petition in limine
and a Letters Patent Appeal preferred by the appellant was
also dismissed by a Division Bench by its order dated June
27, 1984. Facts in Civil Appeal No. 3288 of 1984 are more or
less similar. We must here mention that the High Court in
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Sadashiv Ragho Kolambe & ors. v. State of Maharashtra & Anr.
being Special Civil Application No. 1064/76 decided on June
20, 1976 upheld the constitutional validity of the Act and
Civil Appeal No. 982/76 is pending before this Court.
The impugned Act is supplemental or incidental to the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws viz. the Bombay Tenancy & Agricultural Lands (Vidarbha
Region) Act, 1958 in relation to the Vidarbha region of the
State, the Hyderabad Tenancy & Agricultural Lands Act, 1950
in relation to the Hyderabad region of the State and the
Bombay Tenancy & Agricultural Lands Act, 1948 in relation to
the rest of the State. Similar measures have been undertaken
by different States placing restrictions on transfer of
lands by members of Scheduled Castes and Tribes for the
implementation of the Directive Principles of States Policy
enshrined in Art. 46 of the Constitution which enjoins that
"the State shall promote with special care the educational
and economic interests of the weaker sections of the people
and in particular of the Scheduled Castes and Tribes and
shall protect them from social injustice and all forms of
exploitation"
Although there is legislation undertaken by different
States
231
placing restrictions on transfer of lands by members of
Scheduled Castes and Tribes in pursuance of the declared
policy of the State of safeguarding, protecting and
improving the conditions or weaker sections of the society
by providing that any such transfer except in terms of the
provisions of the different Acts shall be null and void, the
State of Maharashtra has gone a step further for annulment
of such transfers by members of Scheduled Tribes and for
restoration of lands to them by enacting the Maharashtra
Restroration of Lands to Scheduled Tribes Act, 1974. The
impugned Act has been placed in the Ninth Schedule of the
Constitution and is thereof immune under Art. 31B from any
challenge on the ground that it is inconsistent with, or
takes away, or abridges any of the rights conferred by Art.
14, Art 19 or Art. 31 of the Constitution.
Before dealing with the contention raised, it would be
convenient to deal with the legislative history. By a
Government Resolution in the Revenue & Forest Department,
the State Government appointed a Committee to inquire into
and report the State Government inter alia on how for the
provisions of the Maharashtra Land Revenue Code, 1966 and
the relevant tenancy law had been effective in giving
protection to persons belonging to Scheduled Tribes and to
suggest among other things suitable amendments therein if
any of the existing provisions were found to be inadequate.
The said Committee by its Report to the Government dated
April 7, 1972 drew the attention of the State Government to
the difficulties experienced in the administration of the
provision contained in s 73 of the Bombay Land Revenue Code,
1897 (in Western Maharashtra) and the analogous provisions
in the Madhya Pradesh Land Revenue Code, 1954 (in Vidarbha)
and the Hyderabad Land Revenue Act, 1317F (in Marathawada)
which are now replaced by s.36 of the Maharashtra Land
Revenue Code, 1966. According to sub-s.(2) of s.36,
occupancies of persons belonging to such Scheduled Tribes as
had been notified by Government, and in the parts of the
State notified by Government, could not be transferred
except with the previous sanction of the Collector. The
intention of the Legislature in making this provision was
that this weaker section of the community should not become
landless and that persons belonging to the amount and
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powerful sections should not be allowed to take undue
advantage of the situation. However, inspite of this
provision and provisions of the earlier Land Revenue laws,
these were not found sufficient and persons belonging to the
Scheduled Tribes because of their poverty, lack of education
and general backwardness had been exploited by
232
various persons who could take advantage of the sad plight
of these poor persons depriving them of their lands. The
said Committee accordingly recommended inter alia that
provision should be made for restoring to persons belonging
to Scheduled Tribes the lands which had been duly
transferred to other persons. After considering the
aforesaid recommendation of the said Committee, the State
Government were of the opinion that steps should be taken
forthwith for restoring certain lands to persons belonging
to Scheduled Tribes.
Broadly stated, such illegal transfers fell into two
categories, namely: (1) occupancy holdings had been
transferred to persons not belonging to Scheduled Tribes by
the Collector or the Sub Divisional officer on the ground
that occupancy holdings were allowed to be transferred to
persons not belonging to Scheduled Tribes. This was in clear
violation of the provisions of s. 3 (2) of the Maharashtra
Land Revenue Code. (2) The lands were first allowed to be
leased out to persons not belonging to Scheduled Tribes by
the Collector or the Sub-Divisional officer on the ground
that members of the Scheduled Tribes holding such lands were
unable to cultivate them personally due to sickness or
otherwise. Later on, taking advantage of the provisions of
the Bombay Tenancy & Agricultural Lands Act, 1948, such
transferees applied to the Tenancy Courts for purchase of
the holdings on the ground that they were in cultivating
possession on April 1, 1957 i.e. On "the tillers’ day" The
Committee accordingly recommended that necessary legislation
be undertaken for restoration of lands to such Scheduled
Tribes which had been transferred whether by way of sale,
gift, mortgage or any other disposition made or had gone
into the possession of members not belonging to Scheduled
Tribes under a decree or order of a Court on or after April
1, 1957. It would therefore appear from the Report that the
provisions contained in the relevant Land Revenue laws were
not found sufficient to help the members of the Scheduled
Tribes whose ignorance and poverty had been exploited by
persons belonging to the affluent and powerful sections to
obtain sales or mortgages either for a nominal consideration
or for no consideration at all and they had become the
victims of circumstances.
The Statement of objects and Reasons accompanying the
Bill is as follows:
233
"It was noticed that in a number of cases lands
previously held by persons belonging to Scheduled
Tribes have A been transferred to non-Tribals as a
result of purchases made or deemed to have been made
under the Tenancy Laws or as a result of transfers
(including exchanges) validly effected after 1st April,
1957 under the provisions of the Maharashtra Land
Revenue Code, 1966 or other laws in force in the State.
After examining the recommendation of the Committee
appointed by Government to examine the difficulties
experienced by the Tribal land. holders in the
administration of certain provisions of the Maharashtra
Land Revenue Code and other laws in force in the State
it is considered necessary to provide for restoration
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of the lands which have gone into the hands of non
Tribals to their original Tribal owners. The bill seeks
to achieve this object".
We have referred to the Statement of objects and
Reasons and the Report of the Committee not as an aid to
construction but for the limited purpose of ascertaining the
conditions prevailing at the time the Bill was introduced
and the object sought to be achieved.
Various contentions were raised but before we deal with
them, it is necessary to refer to certain provisions of the
Act. S. 2 (1) of the Act is the definition clause. The word
’transfer’ in relation to land is defined in s. 2 (1) (i) to
mean the transfer of land belonging to a tribal made in
favour of a non-tribal during the period commencing on the
1st day of April 1957 and ending on the 6th day of July 1974
either (a) by act of parties, whether by way of sale, gift,
exchange, mortgage or lease or any other disposition made
inter-vivos, or (b) under a decree or order of a court, or
(c) for recovering any amount of land revenue due from such
tribal, or for recovering any other amount due from him as
an arrear of land revenue, or otherwise under the
Maharashtra Cooperative Societies Act, 1960 or any other law
for the time being in force but does not include a transfer
of land falling under the provisions of sub-s. (3) of s. 36
of the Code and the terms ’tribal-transferor’ and ’non-
tribal transferee’ have to be construed accordingly. The
word ’tribal’ as defined in s. 2 (1) (j) means a person
belonging to a Scheduled Tribe within the meaning of the
Explanation to s. 36 of the Code and includes his
successors-in-interest. The expression ’relevant
234
tenancy law’ is defined in s. 2 (1) (g) to mean (1) the
Bombay A Tenancy & Agricultural Lands (Vidarbha Region) Act,
1958, in relation to the Vidarbha region of the State (2)
the Hyderabad Tenancy & Agricultural Lands Act, 1950, in
relation to the Hyderabad region of the State, and (3) the
Bombay Tenancy & Agricultural Lands Act, 1948, in relation
to the rest of the State.
Sub-s. (1) of s. 3 of the Act provides as follows:
"3. (1) Notwithstanding anything contained in
any other law for the time being in force or any
judgment, decree or order of any Court, Tribunal or
authority, the Collector either suo motu at any time,
or on the application of a Tribal-transferor made
within three years from the commencement of this Act
shall, after making such inquiry as he thinks fit,
direct that-
(i) the lands of the Tribal-transferor and non-Tribals
transferee so exchanged shall be restored to each
other; and the Tribal-transferor, or as the case
may be, the non-Tribal-transferee shall pay the
difference in value of improvements as determined
under cl. (a) of sub-s. (4), or
(ii) the land transferred otherwise than by exchange be
taken from the possession of the non-Tribal-
transferee, and restored to the Tribal-transferor,
free from all encumbrances, and the Tribal-
transferor shall pay such transferee and other
persons claiming encumbrances the amount
determined under cl. (b) of sub-s. (4).
Provided that, where land is transferred by a
Tribal transferor in favour of a non-Tribal-transferee
before the 6th day of July 1974, after such transferee
was rendered landless by reason of acquisition of his
land for a public purpose, then only half the land so
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transferred shall be restored to the Tribal-
transferor".
Sub-ss. (2) to (4) contain detailed provisions for the
terms upon which the Collector shall make an order for
restoration of lands to tribals by their non-tribal
transferees under cl. (i) or cl. (ii) of sub-s. (1) of s. 3
of the Act. Although these provisions are not
235
really material for our purposes, we would briefly refer to
A them to show that the impugned Act makes detailed
provisions with a view to strike a balance between the
mutual rights and obligations of the parties upon the making
of an order for restoration of such lands to members of
Scheduled Tribes under cl. (i) or cl. (ii) of sub-s. (1) of
s. 3 and the conditions upon which it can be effected. Sub-
s. (2) provides that where any land restored to a tribal
under cl. (i) of sub-s. (I ) is burdened with encumbrances,
then such encumbrances shall be transferred therefrom and
attached to the lands restored to the non-tribal or the
tribal, as the case may be. Sub.s. (3) injoins that a tribal
shall notwithstanding anything contained in any law for the
time being in force in the State, be entitled to restoration
of lands under the section only if he undertakes to
cultivate the land personally and to pay such amount to the
nontribal as the Collector may under sub-s. (4) determine.
Sub-s. (4) casts a duty on the Collector to determine in the
prescribed manner the value of the improvements, if any,
where lands are restored under cl. (i) or cl. (ii) of sub-s.
(1), and the manner of its payment. Clauses (a) to (g)
thereof contain detailed provisions as to the manner of
payment. By cl. (a) it is provided that where lands are
restored under cl. (i) of sub-s. (1) i. e. where the land of
a tribal exchanged with a non-tribal is restored to such
tribal, if the value of improvements made by a tribal is
found to be more, the difference shall be paid by the non-
tribal to the tribal and vice versa. By cl. (b) it is next
provided that where the land of a tribal transferred to a
non-tribal is restored to him, the amount payable by the
tribal shall be an amount equal to 48 times the assessment
of the land or the amount of consideration paid by the non-
tribal for acquisition of the land, whichever is less plus
the value of the improvements, if any, made by the non-
tribal to be determined by the Collector. Explanation to
cls. (a) and (b) lays down that the Collector in determining
the value of any improvements under cl. (b) shall have
regard to (i) the labour and capital provided or spent on
improvements, (ii) the present condition of improvements,
(iii) the extent to which the improvement is likely to
benefit the land during the period of 10 years next
following the year in which such determination is made, and
(iv) such other factors as may be prescribed. Cl. (c)
directs that the amount representing the difference in the
value of improvements as determined by the Collector under
cl. (a) shall be payable either in a lump sum or in such
annual instalments not exceeding 12 (with
236
simple interest a 4.5% per annum) as the Collector may
determine. Cl. (d) enjoins that where land in restored to a
tribal under cl. (i) of sub-s. (1) i. e. in case of
restoration of the land exchanged, the tribal shall pay to
the non-tribal or other person claiming encumbrances, the
amount determined under sub-s. (4) either in lump sum or in
such annual instalments not exceeding 12 (with simple
interest at 4.5% per annum) as the Collector may determine.
Cl. (e) provides for apportionment of the amount determined
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under cl. (b) among the transferee and the persons claiming
encumbrances in the manner provided therein. Cl. (f)
provides that during any period for which payment of rent is
suspended or remitted under the relevant tenancy law, the
tribal or non-tribal shall not be bound to pay the amount in
lump sum or the amount of any instalment fixed under sub-s.
(4) or interest thereon, if any. Cl. (g) is the eligibility
clause. If the tribal or the non-tribal, as the case may be,
fails to pay the amount in lump sum or remains in arrears of
two or more instalments, the amount so remaining unpaid
(with interest thereon at 4.5% per annum) shall be
recoverable by the Collector as arrears of land revenue. The
amount so recovered shall be paid by the Collector to the
non-tribal and persons claiming encumbrances, if any, or as
the case may be, the tribal.
S.4 of the Act is in these terms:
"4. Where any land of a Tribal is, at any time
on or after the 1st day of April 1957 and before the
6th day of July 1974, purchased or deemed to have been
purchased or acquired under or in accordance with the
provisions of the relevant tenancy law by a non-Tribal-
transferee or where any acquisition has been
regularised on payment of penalty under such law and
such land is in possession of a non Tribal-transferee
and has not been put to any non-agricultural use on or
before the 6th day of July 1974, then the Collector
shall, notwithstanding anything contained in any law
for the time being in force, either suo motu at any
time or on an application by the Tribal made within
three years from the commencement of this Act and after
making such inquiry as he thinks fit, direct that the
land shall, subject to the provisions of sub-s. (4) of
s. 3, be restored to the Tribal free from all
encumbrances and that the amount of purchase price of a
proportionate part thereof, if any, paid by
237
such non-tribal-transferee in respect of such land in
accordance with the relevant tenancy law shall be
refunded to A such non-Tribal-transferee either in lump
sum or in such annual instalments not exceeding twelve
(with simple interest at 4.5% per annum) as the
Collector may direct. The provisions of clauses (d),
(e), (f) and (g) of sub-s. (4) of s. 3 shall, so far as
may be, apply in relation to the recovery of the amount
from the Tribal and payment thereof to the non-Tribal-
transferee and the persons claiming encumbrances, if
any".
It also contains a proviso which is in terms identical
with the proviso to sub-s. (1) of s. 3 and also serves the
same purpose.
Under the scheme of the Constitution, the Scheduled
Tribes as a class require special protection against
exploitation. The very existence of Scheduled Tribes as a
distinctive class and the preservation of their culture and
way of life based as it is upon agriculture which is
inextricable linked with ownership of land, requires
preventing an invasion upon their lands. The impugned Act
and similar measures undertaken by different States placing
restrictions on transfer of lands by members of the
Scheduled Castes and Tribes are aimed at the State Policy
enshrined in Art. 46 of the Constitution which enjoins that
The State shall promote with special care the educational
and economic interests of the weaker sections of the people
and in particular of the Scheduled Castes and Tribes and
shall protect them from social injustice and all forms of
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exploitation". One has only to look at the artlessness, the
total lack of guill, the ignorance and the innocence, the
helplessness, the economic and the educational backwardness
of the tribals pitted against the artful, usurious, greedy
land grabber and exploiter invading the tribal area from
outside to realize the urgency of the need for special
protection for the tribals if they are to survive and to
enjoy the benefits of belonging to the ’Sovereign,
Socialist, Secular, Democratic Republic’ which has vowed to
secure to its citizen ’justice, social, economic and
political’ ’assuring the dignity of the individual’. The
great importance which the Founding Fathers of the
Constitution attached to the protection, advancement and
prevention of exploitation of tribal people may be gathered
from the several provisions of the Constitution. Apart from
Art. 14 which, interpreted positively, must promote
legislation to protect and further the aspirations of the
weak and oppressed, including the
238
tribal, there are Arts. IS (4) and 16 (4) which make special
provision for reservation in Government posts and admissions
to educational institutions. Even the Fundamental Rights
guaranteed by Art. 19 (1) (d) and (e)7 that is, the right to
move freely throughout the territory of India and the right
to reside and settle in any part of the territory of India
are made expressly subject to reasonable restrictions for
the protection of the interests of any Scheduled Tribe. The
proviso to Art. 275 specially provides for the payment out
of the Consolidated Fund of India as grants-in-aid of the
revenues of a State such capital and recurring sums as may
be necessary to meet the cost of development schemes for the
promotion of the welfare of the Scheduled Tribes in the
State. Art. 330 provides for reservation in the House of the
people for the Scheduled Tribes. Art. 332 provides for the
reservation of seat for the Scheduled Tribes in the
Legislative Assemblies of the States. Art. 335 specially
directs that the claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments
to services and posts in connection with the affairs of the
Union or of the State. Art. 343 (2) empowers the President
to specify the tribes or tribal communities or parts of them
which shall be deemed to be Scheduled Tribes for the purpose
of the Constitution. Arts. 244 and 244A of the Constitution
make special provision for the administration and control of
the scheduled areas and the scheduled tribes in any State by
the application of the Fifth and the Sixth Schedules.
Paragraph 3 of the Fifth Schedule particularly enjoins the
Governor of each State having scheduled areas to report to
the President annually or whenever so required, regarding
the administration of the scheduled area in that State, and
the executive power of the Union is extended by that
paragraph to giving directions to the State as to the
administration of the said area. Paragraph S (2) empowers
the Governor to make regulations for the peace and good
Government of any area in - any State which is for the time
being a scheduled area and, in particular, and without
prejudice to the generality of the foregoing power, such
regulations may-(a) prohibit or restrict the transfer of
land by or among members of the Scheduled Tribes in such
area: (b) regulate the allotment of land to members of
Scheduled Tribes in such areas; and (c) regulate the
carrying on of business as money-lender by persons who lend
- money to members of the Scheduled Tribes in such area.
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Mention
239
has already been made of Art. 46 of the Directive Principle
which A specially enjoins the State to protect the Scheduled
Castes and Tribes from all social injustice and from all
forms of exploitation. All these provisions emphasize the
particular care and duty required of all the organs of the
State to take positive and stern measures for the survival,
the protection and the preservation of the integrity and the
dignity of the tribals. B
The problem of how far and to what extent the law of
contract should be used as an instrument of distributive
justice has been engaging the attention not only of the
Legislatures and the Courts but also of scholars. Kronman(l)
in his thoughtful article ’Contract . Law and Distributive
Justice, observes: C
"If one believes it is morally acceptable for
the State to forcibly redistribute wealth from one
group to another, the only question that remains is how
far the redistribution should be accomplished".
According to learned author, this could be achieved not
only by taxation but also by regulatory control of private
transactions. He accepts that distributive fairness can only
be achieved by taxation or contractual regulation, at some
sacrifice in individual liberty.
The present legislation is a typical illustration of
the concept of distributive justice, as modern jurisprudents
know it. Legislators, Judges and administrators are now
familiar with the concept of distributive justice. Our
Constitution permits and even directs the State to
administer what may be termed ’distributive justice’. The
concept of distributive justice in the sphere of law-making
connotes, inter alia, the removal of economic inequalities
and rectifying the injustice resulting from dealings or
transaction between unequals in society. Law should be used
as an instruments of distributive justice to achieve a fair
division of wealth among the members of society based upon
the principle: ’From each according to his capacity, to each
according to his needs’. Distributive justice comprehends
more than achieving lessening of inequalities by
differential taxation, giving debt relief or distribution of
property owned by on to many who have none by imposing
ceiling on hol-
1. Yale Law Journal 1979-80, Vol. 89, p. 472.
240
dings, both agricultural and urban, or by direct regulation
of A contractual transactions by forbidding certain
transactions and, perhaps, by requiring others. It also
means that those who have been deprived of their properties
by unconscionable bargains should be restored their
property. All such laws may take the form of forced
redistribution of wealth as a means of achieving a fair
division of material resources among the members of society
or there may be legislative control of unfair agreements.
In the past forty years, most of the tribal
societies have come under attack by economically more
advanced and politically more powerful ethnic groups, who
infilt-rated into tribal regions in search of lands and new
economic possibilities. These population movements triggered
a struggle for land in which the aboriginal tribesmen
were usually losers, and deprived of their anoestral lands,
turned into impoverished landless labourers. In order to
meet the situation various forms of legislations have been
brought in to save the tribals from extinction and prevent
their enslavement n and degradation as destitutes. Much
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pioneering work has been done in the field of study of the
Tribes and Tribals*. It is beyond the scope of this judgment
to deal in depth with the sad plight of the Tribals or the
insuperable problems facing them and the various measures
adopted to prevent their extinction. One has only to read
Professor Christoph von Furer-Heinmendorf’s "Tribes of
India-the struggle for survival" to understand the enormity
of the social crimes that the non-tribals have been
committing against the tribals. As the learned author
rightly points out:
"It is inherent in any plan for the protection
and support of the tribal minorities that whatever
benefits are envisaged for tribesmen must adversely
affect the interests of some more advanced sections of
the population. Alienation of tribal land cannot be
prevented without depriving non-tribal landowners of
the chance to enlarge their holdings, a curb on
exploitation by moneylenders interferes with the
activities of local businessmen, and any attempt to
eradicate corrupt practices of minor officials
diminishes
Elwin Verrir: The Religion of an Indian Tribe
(Bombay, 1955)
Russell, R. V. The Tribes and Castes of the Central
Provinces of India
(London, 1916)
Grigson. Sir Wilfrid: The Maria Gonds of Bastar
(London, 1949)
241
the income from dealings with ignorant and illiterate
tribals. Thus any policy of tribal rehabilitation arouse the
opposition of vested interests",
The impugned Act is nothing but a remedial measure in
keeping with the policy of the State for rendering social
and economic justice to this weaker section of the society.
The taking of their lands may have been done by way of
transfer under the ordinary laws in various ways. The
processes and forms of law were apparently followed. But the
result has been devastating. As a result of such unequal
transactions which were grossly unconscionable and unjust,
the tribals lost their lands to non-tribals and were
rendered landless. It is implicit in the nature of the
legislation that the law regards such transactions as
unconscionable and oppressive, and directs restoration of
the property to the tribal transferor treating the transfer
to be non-est. It is axiomatic that a contract is liable to
be set aside due to inequality of bargaining power, if
someone without independent advice, enters into a con- tract
on terms which are very unfair or transfers property for a
consideration which grossly inadequate when his bargaining
power is previously impaired by reason of his own need or
circumstances, or by his own ignorance or infirmity, coupled
with undue influences or pressures brought to bear on him by
or for the benefit of the other. .
B. Bandyopadhyaya, Joint Secretary. Ministry of Labour,
Government of India, and B. N. Yugandhar, Special Assistant
to the Deputy Chairman, Planning Commission in their Report
submitted to the Government in 1975 brought out the reasons
for the justified sense of grievance felt by so many tribal
populations in these words:
"The Girijans came in touch with the
administration only in a state of confrontation when
they were tackled for infringement or infraction of one
or the other regulation which in fact abridged,
annulled or tinkered with their customary rights and
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privileges. Thus the Girijans of the Parvathipuram
agency tract found themselves totally alienated from
the administrative machinery and newly set up self-
governing institutions and were denied opportunities of
gainful economic activities. They Suffered not only
242
from poverty but also from a deep of insecurity. They
found themselves deprived at each point and at each front. A
deep sense of grievance and injustice enveloped the entire
tribal population through decades of neglect by the local
administration.
(Emphasis supplied)
The legislation is based on the principle of
distributive justice. The impugned Act is intended and meant
as an instrument for alleviating oppression, redressing
bargaining imbalance, canceling unfair advantages, and
generally overseeing and ensuring probity and fair dealing.
It seeks to reopen transactions between parties having
unequal bargaining power resulting in transfer of title from
one to another due to force of circumstances and also seeks
to restitute the parties to their original position. Quite
recently, this Court in Manchegowde & Ors v. State of
Karnataka & Ors.(l) upheld the constitutional validity of
the Karnataka Scheduled Castes and Scheduled Tribes
(Prohibition of Transfer Certain Lands) Act, 1973. It
provided for restoration of lands transferred by members of
Scheduled Castes and Tribes where the grant of land was
attached with a condition regarding prohibition of transfer
of the granted lands. It repelled the contention that ss.4
and S of the Act which provided for avoidance of transfers
were violative of Art. 14, Art. 19 (1) (f) and Art. 31 of
the Constitution and observed that any transfer of such
lands in violation of the prohibition conferred on the
transferee only a defensible tit1e and therefore the
provisions could not be held to be arbitrary, illegal and
void.
Instances of legislations undertaken for distributive
justice are not unknown. In Fateh Chand Himmatlal v. State
of Maharashtra(2) the challenge was to the provisions of the
Maharashtra Debt Relief Act, 1976. That Act did not prohibit
the business of moneylending but it wiped out all debts due
to moneylenders upto a certain date and obliged them to
return to the debtors the securities obtained as a security
for their debts. The Court held that the moneylending was
not a trade or business, but if it was, the Act imposed
reasonable restrictions on the business of moneylending with
in the meaning of Art. 304 (b). The evil of money lending
was not confined to isolated cases but was widespread as it
affected a
(1) [1984] 3 S.C.C. 301.
(2) [1977] 2 S.C.R. 828 .
243
very large number of agricultural and rural debtors.
Considerable material was placed before the High Court and
this Court held A that the material so placed showed that
moneylending can be looked upon as a pernicious activity.
The material disclosed that previous legislative attempts to
grant relief to the debtors had failed, either because
resolute attempts were not made to enforce the law, or
because of the illiteracy, ignorance and above all the need
of the borrowers or because of the dishonesty of the
moneylenders or by a combination of all these factors. The
question before the Court therefore was whether in view of
all this evidence and the failure of the earlier laws to
give relief to borrowers, could a Legislature, without
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violation any constitutional limitations, wipe out all debts
and restore the security given for the debts to the
borrowers. C
In Pathumma v. State of Kerala(1) s.20 of the Kerala
Agriculturists’ Debt Relief Act, 1970 was challenged, first
for lack of legislative competence, secondly as violative of
Art. 19 (1) (f) and thirdly as violative of Art. 14. The
Court by two separate judgments reiterated the view
expressed in Fateh Chand Himmatlal’s case, supra. S.20 of
the Act provided for restoration of property of
agriculturists sold in execution of decrees on repayment of
purchase price in the manner specified therein. It made a
distinction between a decreeholder who had become the
purchaser of the property of an agriculturist sold in
execution of a mortgage decree, and a stranger who purchased
such property by Court sale. Again, s.20 distinguished
between a stranger auction-purchaser and a bona fide alience
who purchased such property from the auction-purchaser
before the date of the publication of the Act. The Court
held that the classification of the creditors was founded on
an intelligible differentia that there was a reasonable
nexus between the basis of classification and the object
sought to be achieved and therefore the Act was not
violative of Art. 14. Nor was provision contained in s.20
for restoration of property to agricultural debtors an
unreasonable restriction within Art. 19 (S). As regards
legislative competence the concurring judgment held that the
Act was clearly relatable to Entry 30 in List II, namely,
moneylending and moneylenders: relief of indebtedness. It
was argued that s.20 of the Act gave relief when by sale of
property the debt had ceased to exist. It was held that
there was no reason why relief from indebtedness should be
limited to subsisting indebtedness and could not cover
(1) [1978] 2 S.C.R. 537.
244
the necessity of providing relief to agriculturists who had
lost their immovable property by court’s sales in execution
of decrees against them and who had been rendered destitute.
What is of significance is that the Court in Pathumna’s case
having regard to the legislative history in the State of the
relief from agricultural indebtedness and the sad plight of
agriculturists who had, been rendered destitute upheld the
validity of s.20 of the Act which provided for restoration
of their immovable property sold in execution of any decree
for recovery of a debt or sold under the provisions of the
Revenue Recovery Act or sold in execution of any decree for
arrears of rent etc. The Act did not deprive the purchaser
of the property without payment of compensation but on the
contrary it enjoined that the purchase money shall be
refunded to him In the case where the decreeholder was the
purchaser, the debtor was allowed to deposit one-half of the
purchase money along with the application to the Court for
restoration of possession and to repay the balance amount in
10 equal half-yearly instalments, together with interest
thereon. As regards a stranger auction-purchaser the Court
observed that he stood mere or less in the same position as
the decreeholder cannot be heard to complain since he
purchased the property as a distress sale and was therefore
bound to restore the same to the agriculturist debtor. The
law however treated him differently because he had nothing
to do with the decree and was therefore enjoined to return
the property to the agriculturist debtor on payment of the
entire amount in lump sum. Further, where improvements had
been effected on the property, the debtor was required to
deposit the cost of such improvements for payment to the
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purchaser. It is not necessary to encumber the judgment with
many citations.
The constitutional validity of the impugned Act has
been challenged on several grounds, namely: (1) The
provisions contained in ss.3(1) and 4 of the Act which
provide for annulment of transfers of lands by tribals to
non-tribals effected during the period specified therein and
for restoration of possession to them is beyond the
legislative competence of the State under Entry 18 in List
II of the Seventh Schedule. (2) The adoption of the date
April 1,1957 as the date from which there is annulment of
transfers under ss.3 (1) and 4 is arbitrary and void as
contravening Art. 14, as there is no reasonable nexus for
the fixation of such date and the object sought to be
achieved by the legislation. (3) The
245
impugned Act is also violative of Art. 14 as it treats
equals unequally since there is preferential treatment given
to members of 4; Scheduled Tribes as against those of
Scheduled Castes who also constitute the weaker section of
the society without any rational basis. (4) The provisions
contained in ss.3 (1) and 4 are void under Art. 13 (2) as
they offend the principle of equality which is the basic
structure of the Constitution, for a distinction is made
between a non-tribal transferee who had diverted the lands
obtained by him under a transfer from a tribal during the
period from April 1, l957 and July 6, 1974 and put such
lands to non-agricultural purposes, and other non-tribal
transferees who also got into possession of the lands
belonging to tribals under transfers effected during the
same period but continued to use the lands for agricultural
purposes, and such differential treatment is without any
reasonable classification and thus offends against Art. 14
(5). The definition of non-tribal transferee contained in
s.2 (1) (1) also suffers from the same vice as it allows
transfers effected prior to March 15, 1971 to assignees of
non tribal transfrees to escape the consequence of annulment
under ss.3 (1) and 4 for which there is no lawful
justification and thus the Act is in flagrant violation of
the equality clause contained in Art. 14. And (6) s.9A of
the Act amounts to an unreasonable restriction on the right
to acquire, hold and dispose of property guaranteed under
Art. 19 (1) (f) as there is denial of opportunity to the
non-tribal transferees to be represented by a lawyer of
their choice in proceedings initiated by the Collector suo
motu or on an application by the tribal under s. 3 (1) or s.
4 of the Act. We are afraid, none of these contentions can
prevail.
The first and foremost contention Is that the
provisions contained in ss. 3(1) and 4 of the Act which
provide for annulment of transfer of lands by tribals to
non-tribals effected during the period specified therein and
for restoration of possession of such lands to them are
beyond the legislative competence of the State Legislature
under Entry 18 in List 11 of the Seventh Schedule. It is
urged that the State has no competence to make a law under
Entry 18 in List II which had the effect to unsettle the
titles which had vested validly in the non-tribal
transferees either by transfer inter-vivos or by the decree
or order of a Court. It is contended that there is no
Legislative competence of the State Legislature to enact a
law of this kind which purports to direct A’ to transfer the
lands to ’B’ for
246
the only reason that he got the lands by transfer from and
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happens to be a tribal. It is urged that there is no
provision anywhere in the Constitution under which such a
law could be enacted since the nexus of the impugned Act is
not so much the land but the tribal. The submission is that
without acquisition of the lands by the State from the non-
tribal transferees the lands could not be restored to the
tribals by mere annulment of transfers. We are unable to
accept this line of argument.
The submission as regards lack of legislative
competence of the State to enact the impugned Act stems on ,
a misconception of nature and content of the legislative
power of the State under Entry 18 in List II which reads:
"18. Land, that is to say, rights in or over
land, land tenures including the relation of landlord
and tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement and
agricultural loans; colonization . "
The contention advanced fails to take note that the
impugned Act strikes at transactions relating to
agricultural lands effected between members of Scheduled
Tribes who admittedly belong to the weaker section of the
society and persons not be longing to Scheduled Tribes.
Experience in the past showed that members of the Scheduled
Tribes had been exploited due to their ignorance and poverty
by members belonging to the affluent and powerful sections
of the society to obtain transfer of their lands by way of
sale, gift, mortgage, exchange etc. for a nominal
consideration or for no consideration at all rendering them
practically landless. It was also realized that due to their
multifarious duties the Sub-Divisional officers and the
Collectors had accorded sanction to such transfers without
application of mind to the prevalent circumstances. It was
further felt that the members of Scheduled Tribes had become
victims of circumstances by reason of their lands being sold
for realization of arrears of land revenue or otherwise
under the Maharashtra Cooperative Societies Act, 1960 or any
other law for the time being in force. Much of the lands had
been transferred by members of Scheduled Tribes under
compulsion due to their indebtedness and their lands had
passed into the hands of creditors landing money at an
unusually high rate of interest and were thus in a position
to dominate the will of the
247
borrowers. The Committee appointed by the State Government
pointed out in its Report that the provisions of the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws had not been effective in giving protection to persons
belonging to the Scheduled Tribes. It recommended inter alia
that provision should be made for restoring possession to
’members of Scheduled Tribes the lands which had been duly
transferred by them to other persons. There is always a
presumption when there is a transfer between a tribal and a
non-tribal that it is an unequal bargain. As regards the
weak and the helpless, the law guards them with a special
protective care. The Legislature therefore stepped in and
reopened such transactions by directing that lands be
restored to the tribal-transferors free from all
encumbrances tribal on payment by them to the non-tribal
transferees the amounts determined by the Collector under
sub-s. (4) of s. 3 The restoration of the possession under
ss.3 (1) and 4 does not involve any deprivation of the
property in the sense that there is unsettling of title
without consideration. It makes detailed provisions setting
out the conditions subject to which a transfer of
agricultural lands by a tribal to a non-tribal may be
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nullified and possession restored. It also provides for the
legal consequences that must ensue upon restoration of such
possession like repayment of the consideration by the
tribal-transferor. to the non-tribal transfree together with
his liability to pay for the costs of improvements, if any,
effected. The transferor has in addition to give an
undertaking that he needs the lands for his personal
cultivation, It further prescribes the mode of payment of
the amount so determined. In substance the object of the
legislation is restitution of the property to the persons to
whom the lands originally belonged, subject to the
adjustment y of equities between the parties.
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 III but is within Entry 18 in
List II. We may here set out Entries 6 and 7 in List llI:
"6. Transfer of property other than agricultural
land; registration of deeds and documents "
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"7. Contracts, including partnership, agency,
con tracts of carriage, and other special forms of
contracts, but not including contracts relating to
agricultural lands."
The words ’other than agricultural land’ in Entry 6 and
the words ’but not including contracts relating to
agricultural land’ in Entry 7 in List llI have the effect of
delimiting the legislative power of the Union to make a law
with respect to transfers and alienations of agricultural
lands or with respect to contracts in relation thereto. The
power to legislate cannot be denied to the State on the
ground that the provisions of ss. 3 (1) and 4 of the Act
incidentally trench upon the existing law, namely, the
Transfer of Property Act, 1882 and the Contract Act 1872 or
a law made by Parliament namely the Specific Relief Act,
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 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.
The remaining contentions are of little or no avail to
the appellants. The impugned Act having been placed in the
ninth Schedule of the Constitution, the submission that the
provisions of ss. 3 (1) and 4 thereof are inconsistent with,
or take away, or p abridge any of the fundamental rights
conferred by Art. 14, Art. 19 (1) (f) or Art. 31 of the
Constitution, must be rejected at the very threshold because
it is protected from any such challenge under Art 31 B.
Even otherwise, the remaining contentions cannot
prevail. The contention that the adoption of the date April
1, 1957 as the date from which there is annulment of
transfers under ss. 3 (1) and 4 was arbitrary and void as
infring Art. 14, appears to be wholly misconceived. The
adoption of the date April 1, 1957 in the definition of the
term ’transfer’ in s. 2 (1) (i) as the date for the
provisions of ss. 3 (1) and 4 of the Act to operate is based
on an intelligible or rational classification. It is
permissible for the Legislature to make a classification on
the basis of time for a law to operate. What is necessary is
that there must be a reasonable
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nexus between the basis of classification as to time and the
object A sought to be achieved. The Act adopts April 1, 1957
for nullification of transfers made by tribals to non-
tribals under ss. 3 (1) and 4 because that was the ’tillers’
day’ for purposes of the Bombay Tenancy & Agricultural Lands
Act, 1948 on the basis of which the non-tribal transferees
could apply to the Tenancy Courts for purchase of their
holdings on the ground that they were in cultivating
possession thereof. There was therefore reasonable nexus for
the fixation of such date and the object sought to be
achieved and the impugned Act if not violative of Art. 14.
The next contention is that the impugned Act offends
against Art. 14 of the Constitution because it treats equals
unequally in that (1) members of Scheduled Castes who also
constitute the weaker section of the society have been
discriminated against, and (2) there is preferential
treatment afforded to non-tribal transferees who had
diverted the lands purchased by them to non-agricultural
purposes and other non-tribal transferees who continued to
use the same for agricultural purposes without any rational
basis. Both the submissions are devoid of substance. In the
first place, the appellants who are transferees from members
of Scheduled Tribes cannot possibly plead the cause of
members of Scheduled Castes. That apart, members of .
Scheduled Tribes i.e. tribes who are mostly aboriginals
constitute a distinct class who need the special protection
of the State. Further, the question as to how far and by
what stage such laws are to be 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 diverted the lands obtained by
him under transfer from a p tribal during the period from
April 1, 1957 to July 6, 1974 and had put such lands to non-
agricultural purposes, and 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 between two classes of persons
equally situate. When a part of the land is diverted to a
non-agricultural 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 by tribals under Entry
18 in List II as the lands having been diverted to
agricultural purpose ceased to be agricultural lands. In the
case of such non-agricultural
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Land, if the State Legislature made such law it would not be
effective unless it was reserved for the assent of the
President and received such assent.
Equally futile is the argument that the definition of
’non-tribal transferee’ contained in s.2(1)(1) offends
against Art. 14 as it permits . an assignee of a non-tribal
tranferee effected prior to March 15, 1971 to escape the
consequence of annulment under s.3(1) or s.4 of the Act. The
definition of non-tribal transferee’ in s.2(1)(1) is an
inclusive one. the expression non-tribal transferee’ as
defined includes his successore-in-interest; and if he or
his successor had, on or after March 15, 1971, transferred
land in favour of any person whether a tribal or a non-
tribal, comes within the preview of the definition. The
Legislature appointed March 15, 1971 with a view to give
retrospective effect to the provisions of ss.3(1) and 4 of
the Act as that was the date on which the Government
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constituted the Committee to inquire into and report to the
State Government on how for the provisions of the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws had been effective in giving protection to persons
belonging to Scheduled Tribes. But it is not correct to say
that the definition of ’non-tribal transferee’ contained in
s.2(1)(1) permits an assignee of non-tribal transferee
effected prior to that date i.e. March 15, 1971 to escape
the consequences of annulment under ss.3(1) and 4 of the
Act. Such a construction of the definition of the expression
’non-tribal transferee’ under s.2(1()1) would run counter to
the scheme of the Act.
As regards the two provisos to ss.3(1) and 4 of the Act
which are identical in terms, they are meant to operate in a
case where a non-tribal transferee had acquired the land
from a tribal by transfer during the period in question
after his own land had been acquired for a public purpose.
In such a case, only one-half of the land so transferred
shall be restored to the tribal-transferor while the non-
tribal transferee is allowed to retain the compensation
amount for the land acquired. These provisos are meant to
mitigate the hardship which otherwise would be caused to a
non-tribal transferee who would again be rendered landless
if he were required to restore the entire land under s.3(1)
or s.4 of the Act.
The next and the last question that arises is whether
s.9A of
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the Act is constitutionally void as it affects (i) the
fundamental right of an advocate enrolled by the State Bar
Council of Maharashtra to carry on his profession guaranteed
by Art. 19(1)(g) of the Constitution and (ii) the right of
the appellants who are non-tribals being prevented to be
represented by a legal practitioner of their choice.
The problem before us has to be viewed from two angles:
first, from the viewpoint of the legal practitioner, and
secondly from that of the litigants. Though the question for
consideration as to whether s.9A of the Act offends Art.
19(1)(g) is of considerable importance to the litigant
public in general, and the legal profession in particular,
it is no longer res integra, it being practically concluded
by several decisions of the various High Courts, from both
the view points noted above. S.9A of the Act reads:
"9A. Notwithstanding anything contained in this Act or
any law for the time being in force, no pleader shall be
entitled to appear on behalf of any party in any proceedings
under this Act before the Collector, the Commissioner or the
Maharashtra Revenue Tribunal:
Provided that, where a party is a minor or
lunatic, his guardian may appear, and in the case of
any other person under disability, his authorised agent
may appear, in such proceedings."
The contention that an advocate enrolled under the
Advocates Act, 1961 has an absolute right to practice before
all Courts and Tribunals can hardly be accepted. Such a
right is no doubt conferred by s.30 of the Advocates Act.
But unfortunately for the legal profession, s.30 has not
been brought into force so far though the Act has been on
the Statute Book for the last 22 years. There is very little
that we can do in the matter and it is for the Bar to take
it up elsewhere. A person enrolled as an advocate under the
Advocate Act is not ipso facto entitled to a right of
audience in all Courts unless s.30 of that Act is first
brought into force. That is a matter which is still
regulated by different statutes and the extent of the right
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to practice must depend on the terms of those statutes. The
right of an advocate brought on the rolls to practise is,
therefore, just what is conferred on him by s.l4(1)(a), (b)
and (c) the Bar Conncils Act, 1926.
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In view of the settled law on the subject, we cannot
but held that s.9A of the Act is not an unconstitutional
restriction on advocates to practise their profession.
That brings us to the second aspect of the matter i.e.
the socalled right of a litigant to be represented before
the Collector in matters not covered by ss.3(1) and 4 of the
Act. Now it is wellsettled that apart from the provisions of
Art.22(1) of the Constitution, no litigant has a fundamental
right to be represented by a lawyer in any Court. The only
fundamental rights recognized by the Constitution is that
under Art.22(1) by which an accused who is arrested and
detained in custody is entitled to consult and be defended
by a legal practitioner of his choice. In all other matters
i.e. in suits or other proceedings in which the accused is
not arrested and detained on a criminal charge, the litigant
has no fundamental right to be represented by a legal
practitioner. For aught we know the legislature felt that
for the implementation of the legislation, it would not
subserve the public interest if lawyers were allowed to
appear, plead or act on behalf of the non-tribal
transferees. It cannot be denied that a tribal and a non-
tribal are unequally placed and non-tribal transferee being
a person belonging to the more affluent class, would
unnecessarily protract the proceedings before the Collector
under ss.3(1) and 4 of the Act by raising all kinds of pleas
calculated to delay or defeat the rights of the tribal for
restoration of his lands The proceedings before the
Collector have to be completed will sufficient despatch and
the transferred lands restored to a tribal under sub-s.(l)
of s.3 and s.4 of the Act without any of the law’s delays.
In the result, the appeals must fail and are dismissed
with costs.
N.V.K. Appeal dismissed.
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