Scheduled Castes and Scheduled Tribes This page is last updated on Jan

IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Hon'ble Mr. Justice. P.K. Balasubramanyam

And

The Hon'ble Mr. Justice. C.S. Rajan

Thursday, the 16^th day of December 1999/25^th Agrahayana 1921.

Contempt of Court Case No…5 4 2…….of 1998-S

Dr. P. Nalla Thampy Thera Vs. Shri. B.P. Singh and another.

This contempt of Court cse having come up for orders on 16-12-1999 the Court on the same day passed the following.

P.K. BALASUBRAMANYAN & C.S. RAJAN, JJ.

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C.C.C.NO. 542 OF 1998

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O R D E R

BALASUBRAMANYAN, J.

This Contempt of Court application is filed by the petitioner in O.P.8879 of 1988. He complains that there is a wilful disobedience of the writ of mandamus issued by this court directing the State of Kerala to implement the Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 and to dispose of the applications filed under that Act by the tribals pending before the authority constituted under that Act within six months of that date. The petitioner also submits that though there were subsequent directions in that Original Petition while granting extension of time to the State to implement that Act and the orders passed under that Act by the concerned authority, the said directions have also been wilfully disobeyed by the State and hence proceedings under the Contempt of Courts Act may be initiated. The petitioner submits that if the State itself does not obey the commands of the court validly issued and does not implement the directions issued by this court in exercise of its jurisdiction under Article 226 of the Constitution of India, that will cause serious damage to the institution of judiciary itself and will certainly be the negation of the rule of law which is the basic feature of our constitution. In this petition, the Union of India was also impleaded by the petitioner. But the learned Judges, before whom the matter came up, in their order on 26-11-1998, while issuing notice to the Chief Secretary, the Government of Kerala, respondent No.2 in the petition, took the view that no notice to the Union of India is called for, since their Lordships were inclined to think that the Union of India was not a necessary party. This notice was issued by this court after the preliminary hearing contemplated by Rule 9 of the Contempt of Courts (High Court of Kerala) Rules. Under Rule 9(ii)(a), the court issues notice.

"if satisfied that a prima facie case has been made out."

Pursuant to the said notice, the second respondent filed a reply in terms of Rule 13 of the Rules. Thereafter the matter was posted for hearing in terms of Rule 14 of the Rules.

2. On a scrutiny of the reply filed by the second respondent, it is seen that the said respondent has not admitted that he has committed contempt. In terms of Rule 14 of the Rules, the court has then either to proceed to frame the charge if it is satisfied that there is a prima facie case or to drop the proceeding and discharge the respondent if it is satisfied that there is no prima facie case or that it is not expedient to proceed. What is therefore now involved in whether the proceedings are to be dropped or whether a charge has to be framed on the materials available.

3. The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975, herein after called 'the 1975 Act' was passed by the Kerala Legislature with the avowed object:-

"To provide for restricting the transfer of lands by members of Scheduled

Tribes in the State of Kerala and for the restoration of possession of lands

Alienated by such members and for matters connected therewith."

The Act received the assent of the President on 11-4-1975. The Act was one under Entry 6 List III of the Seventh Schedule to the Constitution. The Act was subsequently included in the Ninth Schedule. It is item No.150. The constitutional validity of the Act was upheld by a Division Bench of this court in Fr. Thomas Kubukkat v. Union of India (1994 (2) K.L.T. 25). Earlier, a learned Judge of this court in Bhavani v. State of Kerala (1989)(1) K.L.T. SN 57 Case No.58) noticed that the Act has been included in the Ninth Schedule to the Constitution by the 40^th Amendment Act, 1976 and hence the attack to the provisions of the enactment on the ground that it violates the provisions in Part III of the Constitution cannot be upheld. The Act was not implemented in true spirit and applications filed by Tribals for restoration were not enquired into or decided with any commitment. So, the petitioner erein, filed O.P.8879 of 1988 praying inter alia for the issue of a writ of mandamus to compel the implementation of the Act and to deal with the applications for restoration filed under the Act. By judgment dated 15-10-1993 this court allowed O.P.No.8879 of 1988. In that judgment, this court recorded the submission of the then additional Advocate General to the effect

"utmost steps would be taken for the disposal of the applications

and that the Act would be enforced in all its rigour."

And directed the State to give directions to the authorities under the Act to dispose of the applications pending before them within six months of that date. The undertaking of the Additional Advocate General was not honoured. The direction issued by this court was not implemented. But the State sought extension of time to implement the direction of this court. By order dated 12-4-1994 this court extended the time originally granted on 15-10-1993, by another six months. On 11-10-1994, the State filed another application for further extension of time by on years. That prayer for extension was also allowed. The mandamus issued by this court was not oeyed even within that extended time which by then amounted to two years from the date of the original direction. It may remembered that the Act itself was brought into force with effect from 1-1-1982 by notification issued under Sec.1(3) of the Act on 24-1-1986 and a number of applications had been filed by the displaced tribals for the restoration of their lands.

4. The State filed yet another application for extension of time by one more year to implement the provisions of the Act and to obey the directions issued by this court. This court extended the time by six months but felt that it was necessary to monitor the progress of the implementation and with that in view, issued the following directions even while extending the time.

"(I) The State shall ensure that all the applications are disposed of within the extended time.

(ii) The State shall immediately communicate copies of this order to the Revenue divisional Officers of all the Districts for compliance.

(iii) The authorities under the Act, ie., the Revenue Divisional Officers of the concerned Districts shall file affidavits before this court once in a month showing the progress achieved in the disposal of applications during that month. The first of these affidavits showing the progress made until 31-12-1995 shall be filed before 15-1-1996. The next of the affidavits showing progress till 31-1-1996 shall be filed before 15-2-1996 and so on.

(iv) The State shall provide the necessary back up and support to the Revenue Divisional Officers to complete the work within the extended time now granted.

(v) The State or any of the Revenue Divisional Officers shall be at liberty to approach this court in the event of any difficulty being felt in disposing off the applications.

(vi) It is seen from the affidavit filed by the Government that the pendency of applications in the Districts of Palakkad, Wayanad, Idukki and Kottayam is unusually large. The revenue Divisional Officers of these Districts are directed in particular to dispose of all the applications within the extended time."

5. Various reports were filed pursuant to the direction. It was found that though a number of applications filed under the Act were allowed, no actual restoration was effected even in cases where there were no impediments in effecting the restoration either because of the pendency of an appeal or because of any liability to the tribal to pay compensation to the illegal occupant. It may be noted that Section 6(6)(b) of the Act cast a duty on the Revenue Divisional Officer to cause deliver of the property the restoration of which is ordered to a Tribal and to put the tribal in possession or enjoyment of the property, if need be by removing any person who refuses to vacate the same. On 28-3-1996, this court recorded the assurance given by the Additional Advocate General that the order would be implemented and passed the following order:-

"The learned Additional Advocate General assures the court that all out efforts will be made to dispose of all the pending applicationswithin the time stipulated by this court and further that wherever there has been final orders passed, actual restoration will also be effected. In view of this submission no formal orders are necessary today. Post on 31-5-1996."

In the light of all this, a situation was reached where most of the applications made by the tribals under the Act had been disposed of by the primary authority created by the Act. A number of orders of the primary authority became final. There were appeals from certain orders and a few applications alone were pending. On 24-6-1996, the matter came up without the assurance of the Additional Advocate General being honoured and the Government Pleader sought an adjournment. This court adjourned the proceeding, but bringing pointedly to the notice of the State, the order dated 28-3-1996 quoted above which contained the assurance of the Additional Advocate General. Reports continued to be filed by the Revenue Divisional Offices, reporting progress of the proceedings before them. The matter came up on 24-7-1996. Time was again sought for and that was granted. Ultimately, after a nuber of adjournments, the Principal Secretary, Revenue and SC/ST Development, filed an affidavit dated 8-8-1996 in which he put forward the contention that compensation had to be paid in some of the cases and without paying compensation, actual possession cannot be restored. This court then pointed out that there are cases where no compensation is payable and there are also cases where no appeal has been filed and there was absolutely no impediment in implementing the orders for restoration passed in such cases. Therefore on 3-8-1996, this court issued the directions as under.

"1) The Revenue Divisional Officers are directed to cause delivery of the properties covered by orders for restoration against which no appeals are pending and in which no compensation is payable, forthwith and in any event within six weeks from today.

2) In view of the submission that the Officers are meeting with resistance in restoring possession, the State and the District Superintendents of Police of all Districts are directed to afford the needed protection to the Revenue Divisional Officers to carry out their duty of restoring possession to the Tribals.

3) The State and the Collectors of the various Districts are directed to make available to the Revenue Divisional Officers the necessary man power and support to carry out the implementation of the orders for restoration passed under the Act.

4) The Revenue Divisional Officers will file statements before this court by 30-9-1996 reporting compliance with direction No.1."

The said order of this court dated 13-8-1996 is reported in State of Kerala v. P. Nalla Thamp Thera (1996(2) KLT 930)

6. The said order was appealed against by the State under Section 5(I) of the Kerala High Court Act providing for an appeal against a judgment or order of a Single Judge in the exercise of original jurisdiction. It may be noted that the order was one on an application filed by the State, subsequent to the decision rendered in the Original Petition, seeking an extension of time fixed by the judgment, to implement the directions contined therein. The order passed in the petition was one granting the extension of time prayed for by the State but directing the State, while so granting time, to take concrete action to comply with the direction issued in the Original Petition. How the State could feel aggrieved by a direction to implement the statute enacted by the State Legislature granting relief to tribals is not very clear. But, the Writ Appeal was entertained and referring to a Bill said to have been in the State Legislature (which had not yet become law), the hearing of the matter was postponed so as to reconsider the directions given by the Single Judge referred to above. The Civil Miscellaneous Petition pending before the Single Bench was also withdrawn by the Division Bench and placed before a Full Bench alongwith the Writ Appeal filed by the State. Meanwhile, the order of the Single Judge dated 13-8-1996 was kept stayed and no restoration of posession pursuant to he final orders passed, were made to the Tribals. It may be noted that there was no appeal against the judgment in O.P.No.8879 of 1988 dated 15-10-1993 issuing the writ of mandamus and the same had become final. The Full Bench continued the stay taking note of the alleged proposal to introduce a Bill in the Kerala state Legislature. Ultimately on 21-5-1998, the Full Bench was informed that the Act called the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Amendment Act, 1996 which had been passed and had been sent for the assent of the President of India, could not become effective since the President of India had declined assent to the Bill passed by the Legislative Assembly. The Full Bench therefore said:-

"It was now stated in the affidavit that the Hon'ble President of India as declined assent to the bill passed by the Kerala State Legislative assembly. In the light of the Hon'ble President of India having declined assent to the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Amendment Act, 1996, there is no justification for this court extending the order of stay granted earlier. Interim stay granted earlier is vacated".

Thereafter, the Full Bench extended the time by six months for carrying out the directions contained in the order of the Single Judge dated 13-8-1996 in C.M.P.No.28950 of 1995 without prejudice to the right of the Government in considering the various aspects of the matter to being forward suitable legislation with uitable changes if they so desire. Thus the stay granted not of the writ of mandamus originally issued, but of the subsequent directions issued to ensure the obedience to the writ of mandamus earlier issued which had become final, also stood vacated.

7. Nothing was done within this six months either. But again, C.M.P.6605 of 1998 was filed fo extension of stay. How an extension of stay which had already been vacated, can be sought is not very clear. At best, an extension of time to implement could have been sought. But, the Full Bench by orde dated 9-12-1998 extended the stay granted earlier till 5-1-1999 though as per the earlier order dated 21-5-1998, stay was vacated as can be seen from that order. By another order dated 6-1-1999, further time of three months was granted presumably for the Government to bring forward a Bill in the Legislature. It was also stated in the order that there will be no further extension of time.

8. Meanwhile, the petitioner herein who was the petitioner in the Original Petition O.P.No.8879 of 1988, filed the present Contempt of Court Case, on 23-11-1998 and notice was issued to the Chief Secretary to the State, by the learned Judges on 26-11-1998 after the preliminary hearing. On 4-12-1998, respondent No.2 the Chief Secretary, filed a reply in terms of Rule 13 of the Rules. In that affidavit, the Chief Secretary to the Government, who was impleaded in the Contempt of Court Case as the respondent in his capacity as the Chief Secretary to the Government, filed an affidavit stating that the Government had decided to being forward a new legislation and a draft bill was already prepared and it was under legal scrutiny and the Government intended to introduce the bill in the next session of Assembly which was likely to commence shortly. It was contended by the Chief Secretary that he had no committed any wilful act or omission amounting to contempt of court. A further affidavit was filed on 8-6-1999 submitting that the bill was passed by the State Legislature and that the new Act had come into force and the Government was in the process of implementing the new Act. The direction in the Original Petition could not be complied with because of the difficulties experienced in the matter of implementing the direction. It may be noted that right from the time O.P.8879 of 1988 was filed, the parrot like stand of the State was that organised lawless elements were preventing the implementation of this welfare legislation and implying that the government did not have the will to come to the aid of the Scheduled Tribes and to implement the Act which was enacted to protect their interests. It was this defence that was overruled while issuing the writ of mandamus by the learned Judge who disposed of O.P.No.8879 of 1988 and at the subsequent stages when Government sought extension of time for obeying the writ of mandamus and complying with the directions contained therein. The Chief Secretary stated that he had not wilfully disobeyed the directions of this court.

9. On 28-6-1999 since it was argued that in view of the New Act, there was no obligation on the Government to implement the 1975 Act or to obey the writ of mandamus issued by the Court in O.P.No.8879 of 1988 and the subsequent orders passed therein, this court felt that the correctness of the stand adopted by the Chief Secretary that in view of the passing of the new Act, no right under the 1975 Act survives in favour of the Scheduled Tribes and the orders passed under that Act in favour of the Tribals need not be implemented, had tobe first considered and decided. This court found that important questions arise for consideration. This court felt that since the petitioner in the Contempt of Court Case, though experienced in litigation, was not a legally trained lawyer, the help of a competent lawyer would be needed to guide the court to come to the correct conclusion. An order was therefore passed appointing Sri. N.N. Venkatachalam, an Advocate of this court as amicus curie to assist the court to come to a correct decision on the question. This court passed the following order on 28-6-1999:-

"This proceeding under the Contempt of Court Act initiated on the plea that the respondents have not complied with the directions contained in Annexures I and II orders, was admitted by the court on 26-1-1998 as against respondent No.2 on the basis that the allegations disclosed a cause of action only against respondent No.2. Respondent No.2 subsequently appeared and filed a reply on 4-12-1998 submitting that the Government had decided to introduce a suitable new legislation and that a petition for extension of time for complying with the direction was filed beforethis court and it was pending. Subsequently on 8-6-1999, another reply was filed stating that a Bill was passed by the Legislative Assembly and the same had received the assent of the Governor of the State. Apparently the defence appears to be that the enactment of the new legislation is an answer to the proceeding initiated under the Contempt of Courts Act.

2. When the matter came up, the learned Government Pleader brought to our notice the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999, act 12 of 1999 and submitted that in the light of that enactment, the proceeding may be dropped. The impact of Act 12 of 1999 on the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975, Act 31 of 1975, on the orders passed under Act 31 of 1975 and on the writ of mandamus issued by this court in relation to Act 31 of 1975, arises for consideration. The effect if any of Act 12 of 1999 on the orders passed under Act 31 of 1975 on applications made under that Act, also arises for consideration.

3. Obviously, the plea of respondent No.2 is that he is not guilty of contempt of court. In such a situation this court has to consider whether any charge has to be framed under Rule 14 of the Contempt of Courts (High Court of Kerala) Rules, or the proceeding has to be dropped. For deciding this, we feel that arguments have to be heard on the impact of act 12 of 1999 on the mandamus issued by this court and on Act 31 of 1975 and the orders passed under Act.31 of 195. The petitioner is not a legally trained Advocate and the questions involved are of an intricate legal nature. We therefore think it necessary to appoint Sri. N.N. Venkitachalam, counsel appearing in this court, as amicus curie to assist the court to come to a correct decision. This matter will therefore be posted on 19-7-1999 for hearing on this question."

10. The matter underwent some adjournments. On 4-10-1999, yet another affidavit was filed by the Chief Secretary in which he stated that a new Act called the Kerala Restrictin on Transfer By and Restoration of Land to Scheduled Tribes Act, 1999 was passed and that the Act was beneficial to the Scheduled Tribes and the said act has repealed the 1975 Act. The new Act would be implemented. There was no wilful disobedience. The repeal of the 1975 Act was referred to without taking any definite stand on the duty to implement the writ of mandamus issued by the Court. But at the time of arguments the stand was taken that in view of the bringing into force of the new Act, there was no obligation on the State and its officials to implement the writ of mandamus issued by this court and hence there was no contempt of court. It is in the light of this stand that the question was heard in the context of Rule 14 of the rules to decide whether charge should be framed against the second respondent or the proceedings should be dropped.

11. Mr. N.N.Venkitachalam, learned counsel, brought to our notice the relevant provisions of the 1975 Act and of the Kerala Restriction on Transfer By and Restoration of Lands to Scheduled Tribes act, 1999, hereinafter referred to as the '1999 Act'. He pointed out that whereas the 1975 Act related to transfr of property coming under Entry 6 in List III, the 19999 Act related only to land, meaning agricultural lands coming under Entry 18 in List II and the 1999 Act cannot affect the transfers of property which are nullified by the 1975 Act. He also pointed out that this was not a case where the Legisature was validating anything that was found invalid earlier or was making valid any order that had been struck down earlier as one without authority but this was a case where the benefit conferred on the Scheduled ribes by the 1975 Act was being taken away in the guise of bringing in another legislation under the State List, after the President had declined his assent to an amendment on similar lines attempted to the 1975 Act. He submitted that the 1999 act did not subserve the interests of the tribals but protected the illegal tranferrees in terms of the 1975 Act and really sought to deprive the hapless tribals, of the rights that had accrued to them under the 1975 Act. He submitted that this was clearly a case of colourable legislation. He also submitted withreference to Sections 4 and 5 of the 1975 Act and the 1999 Act that the proviso to Section 5 of the 1999 Act was against the main part of the Section and that it was also against Sec.4 of the 1999 Act and hence it ought to be noted that the proviso was ultra vires of the main Section itself. He also submitted that the repeal of the 1975 Act by section 22 of the 1999 Act could not be a full repeal of the 1975 Act since the repeal could not take in the transfers coming within the purview of 1975 Act enacted under entry 6 of List III. He also pointed out that in any event, the rights which have accrued under the 1975 Act in respect of those Tribals who had applied for restoration and in respect of those Tribals in whose favour final orders hgave been passed, are not intended to be taken away or taken away by the 1999 Act. He also pointed out that the writ of mandamus issued by this court in O.P.8879 of 1988 is in no manner affected by the c1999 Act and in the light of the decisions of the Supreme Court, the second respondent was bound to implement the direction given by this court while issuing the writ of mandamus in O.P.8879 of 1988. The learned Advocate General appearing on behalf of respondent No.2 argued that the Legislature had the power to enact a law which could take away the basis of the earlier decision rendered and since the 1999 Act was a legislation which repealed the 1975 Act, it cannot be argued that the State was bound to implement the direction of this court issued in O.P.8879 o 1988. Dr. Nallathampi Thera, the petitioner who appeared in person, contended that the entire action of the government was malafde and instead of protecting the Tribals, the Government was trying to destroy the Tribals by improperly rallying behind lawless elements who had dispossessed the tribals unlawfully and that this should not be countenanced by this court.

12. On hearing the arguments, we think that before deciding whether a charge is liable to be framed in terms of Rule 14 of the Rules in this Contempt of court Case, we may have to at least prima facie examine some of the aspects projected. They include the aspect whether the writ of mandamus issued by the court in O.P.NO.8879 of 1988 is any manner affected by the enacting of the 1999 Act, the aspect whether any rights have accrued to the tribals under the 1975 Act and if rights have accrued, whether those rights are in any manner affected by the bringing into force of the 1999 Act. We also feel that since the 1975 Act was enacted for protection of the Constitutionally protected Scheduled tribes and for restoration of their lands to them and what is now sought to be done is to deny the rights accrued to them underthe 1975 Act, it is our Constitutional duty to consider the effect of th new enactment on the rights already accrued to them even though the resent proceeding might have come to us in the guise of a proceeding under the Contept of Courts Act. We may here observe that two original petitions under Article 226 of the constitution of India have been filed challenging the constititional validity of the 1999 Act and they could not be heard first only because of the failure of the State to file its counter-affidavit inspite of specific directions in that behalf. The observations of the Supreme Court in Sri.Manchegowda v. State of Karnataka (AIR.1984 SC 1151) upholding an enactment like the 1975 Act enacted by the Karnataka Legislature, in LingappaPochanna v. State of Maharashtra (A.I.R. 1985 SC 389 ) upholding the enactment akin to the 1975 Act passed by the Maharashtra Legislature and P. Rami Reddy v. State of A.P. (AIR. 1988 SC 1626) upholding the Act passed by the Andhra Pradesh Legislature embolden us to think that it is our duty to decide the questons posed in this proceeding in which it is contended that the mandamus already issued by this court for enforcing the rights under the 1975 Act is not being obeyed by the executive and the Scheduled Tribes are illegally and unjustly kept out of their just dues. We believe that the ratio of the decision in Samatha v. State of Andhra Pradesh (A.I.R. 1997 SC 3297) also supports our approach.

13. We may once again notice tht the constitutional validity of the 1999 Act and the legislative competence to bring about that law and the validity of the repealing section have been challenged in O.P.No.25332 of 1999 and 26449 of 1999. The said Original Petitions were referred to a Division Bench by the learned Single Judge and those Origial Petitions have been ordered to be posted with this Contempt of Court Case. The respondent State has not filed its counter affidavit in those Original Petitions within the time granted. The time for counter has been extended and the time has been given till 12-1-2000 for the filing of the counter. The arguments relating to the constitutional validity of the 1999 Act and the related questins of legislative competence ad of it being a colourable legislation will have to be considered in those Original Petitions. We do not thik that those questions need be addressed in this proceeding arising under the Contempt of Courts Act. But we find that we will have to decide the question of the effect of the mandamus issued by this court in O.P.8879 of 1988, the question whether the repeal by the 1999 Act of the 1975 Act can be considered to be a full repeal of the 1975 Act, whether any rights have accrued to the tribals who have applied under the 1975 Act for restoration and if rights have accrued whether they are impaired in any manner by the 1999 Act, and if such rights have accrued to the said tribals, in the light of the mandamus issued by this court, whether the said rights should not be worked out and whether the stand of the Government that it need not implement the writ of mandamus in the light of the 1999 Act is justified and if so whether this is not a case where proceedings in contempt should not be continued atleast after giving one more opportunity to be State and its officers to comply with the directions of this court.

14. Before proceeding further, we think that it is necessary to refer to some of the salient provision of the 1975 Act and the 1999 Act. The 1975 Act defined 'immovable property' in Section 2(b) as including standing crops and trees but not including growing grass. Section 2(g) defined a 'transfer' in relation to immovable property as meaning

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

Section 4 of that Act provided that notwithstanding anything to the contrary contained in any other law or in any contract or custom or usage, or in any judgment, decree or order of any court, any transfer effected by a member of a Scheduled Tribe, of immovable property possessed, enjoyed or owned by him, on or after the commencement of the 1975 Act (1-1-1982) to a person other than a mmber of a Scheduled Tribe, without the previous consent in writing of the competent authority shall be invalid. Section 5 invalidated certain transfers effected by a member of a Scheduled Tribe on or after the first day of January 1960 and before the commencement of the Act and deemed the transfers to be invalid. Section 6 have a right to a member of a Scheduled Tribe who had effected a transfer which has become invalid under Section 4 or 5 of the Act, or had lost possession of immovable property, to apply to the Revenue Divisional Officer for getting restoration of possession or enjoyment of the property as the case may be. The Revenue divisional Officer was directed to make an enquiry and to pass an order directing the person in possession or enjoyment of the property, to deliver possession thereof to the applicant or on whose behalf the application has been made so as to allow him to ejoy such property within a period of 30 days from the date of service of the order. It was the mandate of Section 6 in the light of Sections 4 and 5 of the 1975 Act that was being flouted by the concerned Revenue Divisional Officers and others and that led to this court issuing the writ of mandamus in O.P.8879 of 1988. Section 11 which provided for payment of compensation to the person who was to be dispossessed pursuant to an order under Section 6 of the Act also specifically provided that no amount would be payable if the transfer was effected on or after the commencement of the Act on 1-1-1982. Section 6 of the Act had also provided for an appeal and it was provided that on the filing of an appeal, order for restoration of possession would not be enforced until the appeal was disposed of.

15. The 1999 Act defines land in Sec.2(b) as meaning any 'agricultural land'. Sec.2(g) defines a transfer in relation to land as meaning an act by which land is conveyed by any documentary or oral transfer whether by way of mortgage with or without possession, lease, sale, gift or exchange, or in any other manner not being a testamentary disposition and as including a charge, 'Vilapanayam', and 'Unduruthy', contract relating to land, mortgage, pledge or hypothecation of crops or standing trees on payment of consideration or otherwise, voluntary surrender and abandonment. Section 4 of the Act is in pari materia with Section 4 of the 1975 Act except that instead of 'immovable property' it is transfer of 'land' that is prohibited and it has reference to the commencement of the 1999 Act as against the 1975 Act. Section 5 also is more or less on the same terms as in the 1975 Act except that instead of 'immovable property' 'land possessed' is used. But a proviso is introduced that practically nullifies the main section. It may be better to quote Section 5 of the 1999 Act in its entirety at this stage:-

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

Provided that nothing in this section shall render invalid any transfer of land possessed, enjoyed or owned by a member of a Scheduled Tribe to a person other than a member of a Scheduled Tribe effected during the aforesaid period and the extent of which does not exceed two hectares.

(2) Notwithstanding anything contained in sub-section (1), or in any judgment, decree or order of any court or other authority, in cases where the land involved in such transfer is used for agricultural purposes, the transferee thereof shall be entitled to retain in his possession the said land upto an extent of two hectares which shall be demarcated by the Revenue Divisional Officer by order and in the manner as may be prescribed."

There was an argument before us that if transfer of 2 hectares and below are excluded from restoration, there will not be many cases in which restoration of land can be made to the Scheduled Tribes under the 1999 Act. This was sought to be countered by the learned Advocate General. The advocate General agreed to furnish details of case where more than two hectares of land was involved in a transfer by a tribal. But no such detail was furnished inspite of a number of adjournments of the case and the grant of time at the request of the Advocate general or of the Senior government Pleader. Section 6 contemplates allotment of other lands to the tribal who cannot get restoration in view of the proviso to Sec.5 of the Act. Where that land is to come from in the natural habitat of the tribal was no explained. Nor was anything said about the availability f land in the context of the Forest (*Conservation) Act, 1980. Section 7 of the Act provides for an application to the Revenue Divisional Officer within a period of one year from the date of the Act for restoration of possession or enjoyment and the Revenue Divisional Officer is to pass an order in case the claim was being upheld, directing the person in possession or enjoyment of the land to deliver possession thereof to the applicant. The other relevant provision to be noted is section 22 of the Act which repeals the 1975 Act. Since this Section has a bearing on the aspects to be considered by us, it may be appropriate to set down that Section hereunder:-

"22. Repeal and saving.-(1) The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (31 of 1975) is hereby repealed.

(2) Notwithstanding the repeal of the said Act, all orders issued by the competent authority or the Revenue divisional Officr, so far as they are not inconsistent with the provisions of this At shall be deemed to have been made under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act. Every proceedings pending before a court on a complaint under section 14 of the said act shall be deemed as a proceeding under the correspondent provisions of this Act and shall be continued accordingly."

16. We find that a serious inrode has been made by the proviso to sub section 1 of Section 5 and by sub section 2 of Section 5 by denying restoration to Tribals in cases where the transfers otherwise hit by Sections 4 and 5 of the act did not exceed two hectares of agricultural land. It is submitted by Dr. Nallathampi Thera, the petitioner who has been espousing the cause of the Scheduled Tribes in this court right from the year 1988 and by Mr. A.X. Varghese, counsel appearing for the petitioners in one of the Original Petitions challenging the Constitutional validity of the 1999 Act which was posted along with this case, that there will be very few cases in which the transfers involved extents beyond two hectares of land and this provision is really a fraud played on the Scheduled Tribes and should be viewed as such. We have already noted that the learned Advocate General who had submitted that he would furnish details of cases where ore than two hectares of agricultural land are involved, has not yet done so. But at this stage, we do not want to say anything final on this aspect. But that will be an aspect which may have to be considered at some stage or other.

17. It may noted that the non obstante clause in none of the relevant sections of the 1999 Act refer either to the orders passed under the 1975 Ac on applications made under that Act by the authorities under that Act or to the writ of mandamus issued by this court directing the State and its officers to enforce the provisions of the 1975 Act. The repeal of the 1975 Act by Section 22 of the Act is seen to a simple repeal. But sub section 2 of Section 22 says that notwithstanding he repeal of the 1975 Act, all orders issued by the competent authority or the Revenue Divisional Officer under the 175 Act so far as they are not inconsistent with the provisions of the 1999 Act shall be deemed to have been made under the corresponding provisions of the 1999 Act and until superseded by anything done or any action taken under the 1999 Act. We think that sub section 2 of Section 22 does not in any manner affect the orders finally passed under the 1975 Act and the rights that have accrued to the tribals who had applied for and obtained orders of restoration under the 1975 Act. Obviously the line of enquiry is not whether the rights under the 1975 Act are preserved by the 1999 Act but whether the rights accrued under the 1975 Act are destroyed by the 1999 Act. (See State of Punjab v. Mohar Singh (A.I.R. 1955 SC 84) and Indira Sohanlal v. Custodian of E.P. (A>I.R. 1956 SC 77). It therefore appears to us that the orders passed under the 1975 Act remain unaffected, though all of them do not qualify as orders under the 1999 Act.

18. A large bench of this court had occasion to consider the question as t when a right can be said to have accrued and under what circumstances they will continue to survive in Echuma amma v. Devassy (1970 K.L.T. 204 (FB)). That was a case under Section 27 of he Kerala Land Reforms Act n which the concerned provision relating to small holder was subsequently repealed. The section conferred the right on a small holder as defined in the Land Reforms Act the option of having the fair rent determined in terms of Sec.27(2) of the Act by having the fair rent at 75% of the contract rent. Sub Sec.(2) was subsequently dropped. The question was, what was to happen in those cases where small holders had either obtained orders in terms of Section 27(2) of the Act or had applied for fixation of fair rent by opting to come under Section 27(2) of the Act as it stood prior to its deletion. The Full Bench held:

"The moment a small holder elects to come under sub-section 2 of Sc.27 by exercising his option under that sub section, right to fair rent under that sub section accrues to him. It is none-the-less an occurred right for its implementation being postponed until there has been a determination by the Tribunal".

Their Lordships relied on the decisions of the Supreme Court in Moti Ram v. Suraj (AIR 1960 SC 665), Sakharam Bapu Saheb Narayan Sanasv. Manik Chand Shah (1962(2) SCR 59) and Gujarat Electricity Board v. Santhilal (AIR 1969 SC 239). Their Lordships also referred to Director of Public Works v. Ho Po Sang (1961 AC 901). We think that the same principle applies in the case on hand.

19. Section 4 of the Interpretation and General Clauses Act, 1125 which corresponds to Section 6 of the General Clauses Act of 1897, specifically provides that where any act repeals any enactment earlier made, unless a different intention appears, the repeal shall not affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder or affect any right, privilage, obligation or liability acquired, accrued on incurred under any enactment so repealed. In Income Tax commissioner, U.P. v. M/s. Shah Sadiq & Sons. (AIR 1987 SC 1217) their Lordships held that a right given to an assessee to claim a set off as provided under Section 24(2) of the Income Tax Act 1922 was an accrued right and it could have been taken away only expressly or by necessary implication. So long as that wa not done, the right was saved by section 6(c) of the General Clauses Act. There Lordships held

"A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly. This is the effect of Section 6 of the General Clauses Act 1897."

Relating to the savings provision in the repealing enactment, their Lordships observed.

"In this case the 'savings' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind S.6(c), General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income-tax Act of 1922 is not saved expressly by S.297, Income-tax act, 1961. But, it is not necessary to save a right expressly inorder to keept it alive after the repeal of the old Act of 1922. Section 6(c) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by S.297 either expressly or by implication."

In Deputy Collector v. S. Venata Ramanaiah (AIR 1996 SC 224) the Supreme Courtquoted wih approval the relevant passage from Francis Bennon's Statutory Interpretation and after referring to the decision in R. Rajagopal Reddy v. Padmini Chandrasekharan (1995(2) SCC 630) and the earlier decision in Garikapathi Veeraya v. N. Subbaiah Chowdhry (AIR 1957 SC 540) came to the conclusion that the provisions of the Andhra Pradesh (Scheduled Areas) Land Transfer Regulations was only prospective in nature and did not affect past transactions of transfers ffected between tribals and non-tribals or between non-tribals and non-tribals themselves in the Agency Tracts at a time when neither Regulation 1 of 1959 nor Regulation II of 1963 or Regulation I of 1970 was in force. Such past transactions remained untouched by the sweep of the aforesaid subsequently enacted Regulations. We do not think it necessary to multiply authorities on this aspect. But we must notice here that the 1999 Act is not a declaratory enactment. It is also not a repealing and re-enacting enactment. The title to the earlier Act and the title to the new Act and the relevant provisions clearly indicate that the 1999 Act applies only to restoration of agricultural land since land is defind as agricultural land and the 1975 Act affected transfer of all immovable property. Similar, the 1975 Act defined transfer on wider terms than the 1999 Act. The scope of the definition of transfer in the 1999 Act is narrower than the scope of the definition in the 1975 Act and even a 'charge' is taken out of the purview of transfer in she 1999 Act. 1975 Act came into force from 1-1-1982 but the 1999 Act cam into force only on 24-1-1986. It appears to us that the 1999 Act has not affected the wider rights that had accrued to the tribals who had applied under the 1975 Act. The operation of the 1999 Act is also confined to agricultural lands. In the light of this position we think that if rights have accrued to the Scheduled Tribes under the 1975 Act, the same are not in any manner affected by the 1999 Act. Sub section 2 of Section 22 of the 1999 Act relief on by the learned Advocate General only provides that the orders issued by the competent authority or the Revenue Divisional Officer under the 1975 Act so far as they are not inconsistent with the provisions of the 1999 Act shall be deemed to have been made under the corresponding provisions of 1999 Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the 1999 Act. In the light of Section 4 of the General Clauses Act 1125 corresponding Sec.6 of the General Clauses Act of 1897, it is clear that there is nothing in the new Act which destroys the rights accured under the 175 Act. We may also notice here that Sec.5 of the ct which by virtue of the proviso to it and by virtue of sub section 2 makes a serious inrode into the rights of the Tribals to get restoration, does not include within its non obstante clause, an order passed by the authority under the 1975 Act. The non-obstante clause contemplates only any other law for the time being in force or any contract, custom or usage or any judgment or decree or order of any court and does not take within its sweep, an order passed by the authority under Section 6 of the 1975 Act. This also gives a clear indication that the rights accrued under the 1975 Act to the Tribals are not destroyed by the coming into force of the 1999 Act. The mandamus issued by this court is for implementing the 1975 Act and to pass orders on the various applications filed by the Tribals under that Act. That mandamus stands obeyed to the extent of passing final orders on those applications by the concerned authority in most of the pending applications under that Act. What requires to be complied with is the direction to restore the land as envisaged by Section 6 of the 1975 Act itself and by the mandamus issued by this court and the further directions issued by this court while granting time to the State on its applications for extension of time for complying with the mandamus issued by this court. According to us, rights have clearly accrued to the Scheduled Tribes who had applied under Section 6 of the 1975 Act, some of whom have also secured orders for restoration before the commencement of the 1999 Act, and since the 1999 Act does not in any manner affect the rights accrued to the Scheduled Tribes under the 1975 Act, respondent No.2 has the clear obligation to continue with the proceedings under the 1975 Act in cases where the appeals are pending and are not yet disposed of and in cases of applications where final orders are not yet passed and in cases where orders have been passed for restoration which have become final prior to the coming into force of the 1999 Act. It cannot therefore be said that by the mere bringing in of the 1999 Act, the obligation of the State and its officers to obey the writ of mandamus issued by this court in O.P.887 of 1988, has come to an end.

20. We may also notice in this context that the Constitutional validity of the 1975 Act was upheld by this court and there was no infirmity pointed out in that Act by this court or by any other court. There was nothing infirm in the 1975 Act which required validation by a subsequent enactment. It is therefore clear that the 1999 Act cannot be considered to be a Validating Act or an Act that became necessary to give legal sanction to some of the orders made under that Act in view of the infirmities subsequently found by the court or invalidity attached to any of the proceedings as per any decision rendered by the Constitutional court. The theory of validation cannot therefore be applied in the case on hand. There was nothing to be validated. All that required to be done was to implement the orders passed under the 1975 Act and to implement the provisions of that Act enacted as a measure of protection to the Scheduled Tribes in the light of the Constitutional mandate in that behalf.

21. The learned Advocate General argued that it was within the power of the legislature to enact the 1999 Act and the present law must be understood as a law enacted in public interest. We have already noticed that the constitutional validity of the 1999 Act has been challenged before us and though those Original Petitions were also posted with this Contempt of Court Case, we were not able to hear and dispose of those Original Petitions first because of the fact that the State had not filed its counter affidavit in those Original Petitions inspite of specific directions in that behalf. But what we are considering here is the effect of the 1999 Act on the orders already passed under the 1975 Act and in that cotext, the scope of the legislation enacted under entry 18 of List II of the Seventh Schedule and its effect on the 1975 Act enacted under Entry 6 of List III of the Seventh Schedule to the Constitution, may also have to be considered. But we find that the stand that the 1999 Act is a validating enactment cannot be accepted since nothing invalid was found in the 1975 Act and there was nothing to be validated. The 1975 Act had in fact been upheld. The decision of the Supreme Court in Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637) relied on by the Advocate General and his contention that the legislature can render a judicial decision ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively, cannot answer the question whether the accured rights are lost to the tribals. There was also no decision invalidating the 1975 Act or anything done under that Act. In the above case, in paragraph 56, while setting down the principles, the Supreme Court has itself stated as principle No.9

"The consistent thread that runds through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."

We have to notice that the 1975 Act was enacted pursuant to the mandate of Art.46 of the Constitution for promotion of the economic interests of the Scheduled Tribes and no infirmity was found either in that law or in the orders passed under that Act and it cannot be said that by enacting the present enactment the basis on which the earlier decision was rendered by the court has disappeared. Moreover, this aspect urged by the learned Advocate General cannot have much effect on the question whether rights have no accured to the tribals by virtue of their applying under the 1975 Act and obtaining orders in most of the cases under that Act, but will have relevance on the other question, whether the writ of mandamus issued by this court has ceased to have any legal effect in view of the enactment of the 1999 Act. That aspect can be considered more appropriately when we deal with the effect of the issuance of the writ of mandamus in O.P.8879 of 1988.

22. We will now consider the effect of the writ of mandamus issued by this court in O.P.8879 of 1988 and the question whether the 1999 Act can have any impact on the writ issued by this court in exercise of its extra-ordinary jurisdiction under article 226 of the Constitution of India. But before doing so, we may briefly refer to the nature of the writ of mandamus expounded by the Supreme Court in Praga Tools Corporation v. C.V. Immanual (A.I.R. 1969 SC 1306). The Supreme Court held:-

"Art.226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purposes. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of a public or statutory duty in the performance of which the one who applies for it has sufficient legal interest.

Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and it in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body." (Headnotes)

The effect of the issuance of a writ of mandamus in a situation where an amendment of the statute or rule had subsequently been brought about, was considered by the Supreme Court in M.M. Pathak v. Union of India (A.I.R. 1978 SC 803). In that case, a Single Judge of the Calcutta High Court issued a writ of mandamus directing the Life Insurance Corporation of India to pay cash bonus for the year 1975-76 to its class III and Class IV employees in terms of the settlement dated 24-1-1974 between the Corporation and its employees. That writ of mandamus issued by the court was allowed to become final. But immediately after the pronouncement of the decision issuing the writ of mandamus, the Parliament modified the Life Insurance Corporation (Modification and Settlement) Act. The Life Insurance Corporation took up the stand that in view of the amendment with retrospective effect, the writ of mandamus issued by the Calcutta High Court was not capable of being enforced and there was no obligation on the Corporation to implement the direction issued by the Calcutta High Court. A seven Judge Bench of the Supreme Court rejected the contentions of the Life Insurance Corporation and held that the writ of mandamus issued was liable to be obeyed.