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PETITIONER:

THE DY. COLLECTOR & ANR.

Vs.

RESPONDENT:

S. VENKATA RAMANAIAH & ANR.

DATE OF JUDGMENT18/09/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

BHARUCHA S.P. (J)

FAIZAN UDDIN (J)

CITATION:

1996 AIR 224 1995 SCC (6) 545

JT 1995 (7) 1 1995 SCALE (5)521

ACT:

HEADNOTE:

JUDGMENT:

W I T H

[C.A. No.6/91; C.A. No. 8422 of 1995 (Arising out of

S.L.P.(C) No.10746 of 1981); C.A. No. 8423 of 1995 (Arising

out of S.L.P.(C) No.1041 of 1986); and C.A. No. 8424 of 1995

(Arising out of S.L.P.(C) No. 2407 of 1986)]

J U D G M E N T

S.B. Majmudar, J.

Leave granted in S.L.P. (C) Nos. 10746 of 1981, 1041 of

1986 and 2407 of 1986.

In this group of matters a common question arises for

our consideration. It is as under :

"Whether the provisions of the Andhra

Pradesh (Scheduled Areas) Land Transfer

Regulation of 1959 (hereinafter referred

to as `Regulation') and the subsequent

Regulation No.II of 1963 and Regulation

No.I of 1970 have retrospective effect

and can affect transfers made prior to

the coming into force of the said

Regulations."

We have heard learned counsel appearing for the

respective contesting parties in this group of matters.

Accordingly all these appeals are being disposed of by this

common judgment.

A few facts leading to these appeals may be noted at

the outset.

Facts leading to Civil Appeal no. 2909 of 1977

The appellant authorities, namely, Deputy Collector

(Tribal Welfare) and the District Collector functioning in

Srikakulam District in the State of Andhra Pradesh, have

brought in challenge a decision of the Andhra Pradesh High

Court allowing Writ Petition No. 4434 of 1975 moved by the

respondents, praying for a writ of mandamus under Article

226 of the Constitution of India for quashing and setting

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aside the orders of the appellant authorities passed under

the provisions of the Regulation. The respondents, writ

petitioners before the High Court had purchased the land in

their occupation on 19th June 1919 from a non-tribal named

Pappala Appanna. After the promulgation of the Regulation in

1959 as amended by Regulation I of 1970 the competent

authority being agent of the Government initiated

proceedings against the respondents on the ground that the

said sale in their favour was hit by Section 3 (1) (a) of

the Regulation and, therefore, the respondents were liable

to be evicted from the land in question which had to be

restored to the original vendor or his successor in

interest. After hearing the respondents the Deputy Collector

(Tribal Welfare) passed an order of eviction against the

respondents. The respondents' appeal before the District

Collector failed. And that is how the respondents filed writ

petition before the High Court. A Division Bench of the

Andhra Pradesh High Court by the judgment under appeal

allowed the writ petition by taking the view that the

provisions of the Regulation were not retrospective in

nature and could not affect past transactions like the

transaction in question which was reflected by Registered

Sale Deed dated 19th June 1919 even though the land was

situated in Srikakulam District which fell within the

definition of `Agency Tracts' as laid down by Section 2 (a)

of 1959 Regulation. It was, therefore, held that the said

transaction could not be processed or scrutinised by the

authorities functioning under the Regulation and they had no

jurisdiction to treat the said transaction to be null and

void under the Regulation. Writ Petition was accordingly

allowed. The authorities as appellants before this Court

have filed this appeal having obtained special leave to

appeal from this Court against the impugned judgment of the

Division Bench of the High Court.

Facts leading to Civil Appeal No.6 of 1991

In this appeal the authorities functioning under the

very same Regulation have brought in challenge the order

passed by the Division Bench of the Andhra Pradesh High

Court in Writ Appeal No. 121 of 1985 which came to be

dismissed by the Appellate Court and whereby the order of

the learned Single Judge in Writ Petition No. 1882 of 1978

came to be confirmed. The first respondent herein was a

protected tenant of Survey No.97 admeasuring 9 acres and 4

guntas and Survey No. 98 admeasuring 8 acres and 8 guntas

situated at Chirrankunta Village of Asifabad Taluk of

Adilabad District of Andhra Pradesh. One Siddamshetti

Narayana was the Pattedar of the said land. Respondent No.1

was cultivating the said land as his tenant. The Pattedar of

this land was a tribal. He had transferred this land for

cultivation as a tenant to respondent No.1 and it was noted

in Khasra Pahani of year 1954-55 through mutation.

Respondent no.1 is a non-tribal. On the basis of the said

protected tenancy created in favour of respondent no.1 by

the tribal, respondent no.1 was declared owner of the said

land on 1.1.1975 under Section 38 (E) of the Andhra Pradesh

(Telengana Area) Tenancy & Agricultural Act, 1950 and a

certificate was issued under Section 38 (E) in his favour.

The Special Deputy Collector (Tribal Welfare),

Adilabad, issued a notice to the first respondent stating

that the first respondent was in possession of the said

land. The transfer of the said land in his favour

contravened the provisions of Section 3(1) of the

Regulation. He was, therefore, asked to show cause as to why

he should not be ejected from the said land. Ultimately

order of ejectment was passed against him by the Special

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Deputy Collector and the lands were ordered to be restored

to respondent nos.2 to 4. Respondent no.1 unsuccessfully

went in appeal where stay was refused. He thereafter filed a

writ petition in the Andhra Pradesh High Court. A learned

Single Judge of the High Court allowed the writ petition on

8.2.1984 holding that the provisions of the Regulation as

extended to Adilabad District in ex-Telengana region by

Regulation II of 1963 could not affect the transfer in

favour of respondent no.1 which was made years back and when

that transfer was valid and was supported by certificate of

ownership granted to respondent no.1 under Section 38 (E) of

the Andhra Pradesh (Telengana Area) Tenancy and Agricultural

Lands Act, 1950. The present appellant authority carried the

matter in appeal before the Division Bench of the High Court

as noted earlier. That Writ Appeal came to be dismissed by

the Division Bench by its order dated 11th February 1985. It

is this order of the Division Bench which is brought in

challenge in the present appeal after obtaining special

leave to appeal from this Court.

Facts leading to Civil Appeal No. 8422/95 arising out of

S.L.P.(C) No. 10746 of 1981

This appeal is taken out by the Collector and Special

Deputy Collector of Adilabad District in Andhra Pradesh.

They have brought in challenge by special leave the judgment

of the Full Bench of the Andhra Pradesh High Court rendered

in Writ Petition No. 4204 of 1977 and group decided on 21st

August 1981. Respondent No.3 herein had purchased the

disputed lands being Survey No. 33 measuring 0 acres and 17

cents and Survey No.34 measuring 13 acres and 02 cents

situated at Nandagaon Village in Adilabad Taluk of Adilabad

District of Andhra Pradesh. Said area was declared to be a

scheduled area as per the provisions of Regulation I of 1959

as amended by Regulation II of 1963, being the ex-Telengana

area. These lands were purchased by respondent no.3 under an

Agreement to Sell dated 10th May 1955 from one Jaithu, a

member of the scheduled tribe. Respondent nos.1 and 2 herein

are said to be cultivating the said land as tenants of the

third respondent. The land, Survey No.8 was purchased under

an Agreement of Sale dated 8th March 1963 by the brother of

the first respondent from the 4th respondent, who is a

daughter of the tribal Jaithu. Respondent nos.3 and 4 are

sons and daughters of Jaithu. They filed a petition under

Section 3(2) of the Regulation I of 1959 before the Special

Deputy Collector alleging that the transfer of the lands

under the Agreements of Sale contravened the provisions of

Section 3(1) of the Regulation and that they were entitled

to be put back in the possession of the said lands. Special

Deputy Collector accepted their request and held that

respondent nos.1 to 3 were in illegal possession of the

lands and they were liable to restore the possession to the

heirs of the original tribal, that is, respondent nos.4 and

5. This order was confirmed in appeal preferred by

respondent nos. 1 to 3 to the District Collector, an agent

to the State Government. It was thereafter that respondent

nos.1 to 3 filed writ petition No. 4204 of 1977 seeking a

writ of mandamus for quashing the orders of the Special

Deputy Collector (Tribal Welfare) and the Appellate

Collector. This writ petition and other companion matters

were ultimately placed for disposal on reference by a

Division Bench of the High Court before a Full Bench. The

Full Bench of the High Court speaking through Ramachandra

Rao, J., took the view that the provisions of the Regulation

were not retrospective in nature and could not invalidate

completed past transactions entered into in the scheduled

area prior to the coming into force of Regulation I of 1959

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as amended by Regulation II of 1963 which applied to

Adilabad area from 1.12.1963. Writ Petition was accordingly

allowed and the impugned orders were quashed. As noted

earlier the said decision of the Full Bench is brought on

the anvil of scrutiny by the appellant authorities in this

appeal.

Facts leading to Civil Appeal No.8423/95 arising out of

S.L.P.(C) No. 1041 of 1986

This appeal is moved by Special Deputy Collector Tribal

Welfare, and the District Collector, Adilabad, being

aggrieved by the judgment and order of the Andhra Pradesh

High Court. In Writ Appeal No.52 of 1980 decided on 14th

October 1985 by the impugned judgment the Division Bench of

the High Court confirmed the order passed by learned Single

Judge of the High Court in Writ Petition No.4882 of 1977

decided on 13th June 1979. The learned Single Judge allowed

the writ petition moved by respondent herein and set aside

the orders passed by the authorities below under the

Regulation. Respondent had purchased in 1942 10 acres and 34

guntas of Survey No.92 of Sungapur Village in Asifabad Taluk

of Adilabad District from the father of one Madavi Nanu who

was original respondent no.1 in the writ petition but who

was not subsequently joined in the further proceedings in

writ appeal as respondent. Madavi's father was a tribal.

Pursuant to the said sale in favour of respondent his name

was recorded as occupant in the land records and in the

Khasra Pahani of the year 1954-55 and in the subsequent

Pahani Partraks. The Special Deputy Collector (Tribal

Welfare) Adilabad issued a notice to respondent no.3 under

Section 3(1) of the Regulation which came into force in the

Telengana area on 1.12.1963. Respondent was called upon to

show cause why he should not be evicted from the said land

on the ground that possession of the respondent was in

contravention of provisions of Section 3(1) of the

Regulation. Ultimately the said proceedings terminated

against the respondent. He was ordered to be evicted from

the land in question and the land was ordered to be restored

to aforesaid Madavi. He unsuccessfully carried the matter in

appeal and thereafter filed Writ Petition No.4882 of 1977 in

Andhra Pradesh High Court. Said writ petition was allowed by

the learned Single Judge on 13th June 1979. The learned

Judge took the view that the provisions of the Regulation

did not affect the past transaction of 1942 in favour of

respondent. Appellants carried the matter in Writ Appeal

which came to be dismissed on 14th October 1985. As stated

above the said decision of the Division Bench in Writ Appeal

No.52 of 1980 is the subject matter of the present appeal.

Facts leading to Civil Appeal No. 8424/95 arising from

S.L.P.(C) No.2407 of 1986

In this appeal appellant is one T. Rajaiah who has

brought in challenge the order passed by the Division Bench

of the Andhra Pradesh High Court dismissing appellant's Writ

Appeal No.406 of 1977 on 16.11.1985 and confirming the order

of the learned Single Judge in Writ Petition No.2449 of 1977

dated 14th July 1977. The appellant purchased 17 acres of

Survey No.28 situated at Dhanora Village in Asifabad Taluk

of Adilabad District of Telengana area of Andhra Pradesh. He

had purchased said land on 3.6.1951 from one Mesram Gangu

who was a tribal. The third respondent herein being daughter

of said Mesram Gangu filed an application under Section 3(1)

of the Regulation for restoration of possession of the land

on the ground that the appellant had purchased the land from

a tribal and, therefore, transaction in his favour was null

and void under the said provision. The Special Deputy

Collector, Adilabad, after hearing the parties, by his order

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dated 4th December 1975 directed ejectment of appellant and

restoration of land in favour of respondent no.3 herein and

one Naithan Bai another daughter of Mesram Gangu. The

appellant unsuccessfully carried the matter in appeal and

then filed Writ Petition No.2449 of 1977 in the High Court

against respondent nos.1 and 2 being the authorities whose

orders were challenged and respondent no.3, the original

applicant before the respondent no.2. The said writ petition

was dismissed by the learned Single Judge on the ground that

the appellant had an alternative remedy by way of revision

before State authorities under the Regulation. It is this

decision of the learned Single Judge which came to be

confirmed by the Division Bench which dismissed the

appellant's writ appeal as aforesaid. That is how after

obtaining special leave to appeal from this Court the

appellant has filed the present appeal.

Rival Contentions

Mrs. Amareshwari, learned senior counsel appearing for

the appellants-Deputy Collector and Collector in C.A.

No.2909/77, C.A. No.6/91, Civil Appeal arising from

S.L.P.(C) No.10746/81 and Civil Appeal arising from

S.L.P.(C) No.1041/86, contended that the provisions of the

Regulation I of 1959 as well as the amending Regulation II

of 1963 and Regulation I of 1970 had retrospective effect

and consequently whether the transactions pertaining to the

lands in question situated within the scheduled tracts

covered by the Regulations were entered into between tribal

transferors and non-tribal transferees or even for that

matter between non-tribal transferors and non-tribal

transferees at any time in past got covered by the

prohibitory and invalidating sweep of Section 3(1) of the

Regulation, that the Full Bench had committed a patent error

of law in treating these provisions as purely prospective.

She alternatively contended that even assuming that the

provisions of these Regulations were prospective in nature

the concerned transferees after the coming into force of

these Regulations in the scheduled areas were not entitled

to continue in possession as their possession became invalid

at least from the dates on which these Regulations applied

to the areas where these lands were situated. Hence on that

ground also the transactions were liable to be hit by

Section 3(1) of the Regulation. Consequently the orders of

eviction as passed by the authorities below were rightly

passed and could not have been interfered with by the High

Court.

Learned advocates for the concerned contesting

respondents on the other hand submitted that the provisions

of the Regulations in question are purely prospective in

nature as there is no express provision made in these

Regulations to make them retrospective from any back date,

nor do the wording of these Regulations exhibit any

necessary intendment about retrospectivity. Consequently the

High Court was right in holding these Regulations purely

prospective in nature and therefore concluding that they

could not affect the vested and accrued rights in favour of

the transferees pursuant to old transactions in their favour

which had taken effect years prior to the coming into

operation of these Regulations.

Learned advocate appearing for the appellant in Civil

Appeal arising out of S.L.P.(C) No.2407 of 1986 submitted

that the High Court had patently erred in dismissing his

writ petition only on the ground of alternative remedy and

when the Regulation itself was not retrospective in

character it could not affect the transaction in his favour

entered into years back on 3.6.1951 even though the land was

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situated in Adilabad District which ultimately got covered

by the Regulation. And that if this Court takes the view

that the Regulation was prospective in nature and did not

affect past transactions then instead of relegating the

appellant to the remedy of revision before the State, his

writ petition which was dismissed by the High Court may be

allowed on merits. Mrs. Amareshwari, learned senior counsel

for the respondent-authorities reiterated her contentions in

the other appeals that the transaction was hit by the

Regulation which was retrospective in effect and, therefore,

appellant's writ petition be treated as dismissed also on

merits and accordingly his appeal may be dismissed.

Before we deal with the question about the

retrospectivity of the Regulation in question it is

necessary to note a few background facts leading to the

enactment of the Regulation.

Background facts leading to enactment of the Regulation

In the Andhra area, prior to the formation of the State

of Andhra Pradesh there existed before the inauguration of

the Constitution certain laws including The Agency Tracts

Interest and Land Transfer Act, 1917 which, inter alia,

prohibited transfer of land in the agency tracts areas

except in favour of members of hill tribes conferring upon

the persons belonging to the Scheduled Tribes certain

benefits. After the Constitution of India came into force,

Article 244 of the Constitution and the Fifth Schedule were

made applicable to the administration of the scheduled

areas. Para 6 of the Fifth Schedule empowered the President

to notify the Scheduled areas in consultation with the

Governor of the State. The scheduled areas in Andhra region

of this State were notified by the President through the

Scheduled Area (Part `A' States) Order, 1950. Para 5(2) of

the Fifth Schedule empowered the Governor of the State to

make Regulations for the peace and good Government of the

Scheduled Areas. Accordingly, the Governor made the A.P.

Scheduled Areas Land Transfer Regulation, 1959 (Regulation I

of 1959). This Regulation came into force with effect from

4.3.1959. Section 3(1) of this Regulation prohibited

transfer of immovable properties situated in the scheduled

areas from a member of scheduled tribal to non-tribals

without previous sanction of the State Government or subject

to rules made in this behalf, with the previous consent in

writing of the Agent or of any prescribed officer. Similar

laws designed to protect the tribals from exploitation were

in operation in the Telengana area of the then State of

Hyderabad. In exercise of powers under paragraph 5(2)(a) of

Fifth Schedule of the Constitution the Governor enacted the

Andhra Pradesh Scheduled Area Laws (Extension and Amendment)

Regulations, 1963 whereby certain rules and regulations

which already existed, and were in operation in the Andhra

area of the State were extended to all parts of the State.

The result was that the Andhra Pradesh Scheduled Areas Land

Transfer Regulations came to be extended to the Telengana

area of the State as well.

Under the 1959 Regulation, any transfer of immovable

property situated in the Agency Tracts, by a member of a

Scheduled Tribe was declared null and void unless, made in

favour of any other member of a Scheduled Tribe or a

registered cooperative society composed solely of members of

the Scheduled Tribes on with the previous consent in writing

of the Agent. The said Regulation further empowered the

Agent to decree ejectment against any person in possession

of any immovable property, the transfer of which was made in

contravention of its provisions and to restore it back to

the transferor or his heirs. If the transferor or his heirs

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were not willing to take the property or where their

whereabouts were not known, the Agent was further empowered

to order assignment or sale of the property to any other

member of a Scheduled Tribe or a registered cooperative

society composed solely of member of the Scheduled Tribes or

otherwise dispose of it, as if it was a property at the

disposal of the State Government.

However, as difficulties were experienced by the

Government in implementing the ejectment procedures under

the said Regulation, inasmuch as it was not always easy for

the concerned authority to ascertain the origin of the right

under which the non-tribal was claiming possession and

whether the land now under the possession of a non-tribal

was previously acquired from a tribal or not, the said 1959

Regulation was amended by the Andhra Pradesh Scheduled Areas

Land Transfer (Amendment) Regulation, 1970 with a view to

remedy the said mischief. The amending Regulation of 1970 in

order to facilitate effective enforcement of the said 1959

Regulations introduced inter-alia, the following changes,

namely:

(i) A rule of presumption was

introduced to the effect that

unless the contrary is proved,

where a non-tribal is in possession

of land in the Scheduled areas, he

or his predecessors-in-interest,

shall be deemed to have acquired it

through transfer from a tribal;

(ii) Transfers of land in Scheduled

Areas in favour of non-tribals

shall be wholly prohibited in

future;

(iii) Non-tribals holding lands in the

Scheduled Areas shall be prohibited

from transferring their lands in

favour of persons other than

tribals. Only partitions and

devolution by succession of lands

held by them shall be permitted;

and

(iv) Where a tribal or non-tribal is

unable to sell his land to a tribal

on reasonable terms, it shall be

open to him to surrender the land

to Government who shall thereupon

be obliged to acquire it on payment

of appropriate compensation.

Clause (a) of substituted section 3(1) rendered all the

transfers made except those in favour of a tribal, to be

null and void. Clause (b) of sub-section (1) of Section 3

raises a presumption that any immovable property in

possession of a non-tribal would be presumed to have been

acquired by such person through a tribal. Clause (c) of sub-

section (1) of Section 3 provides for payment of

compensation to the non-tribal at the rate specified in

Section 10 of Andhra Pradesh Ceiling on Agricultural

Holdings Act, 1961. The Andhra Pradesh Regulation No.1 of

1970 inserts sub-section (4) in Section 3 whereby `transfer'

has been defined to include a sale in execution of a decree

including a benami transaction. The only species of transfer

which has been excluded from the operation of the regulation

is partition or devolution by succession. Provision has been

made for the ejectment of persons who came into possession

of such lands as a result of such transfers and for the

restoration of land to the original transferor or his heirs.

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By Regulation 1 of 1971 Section 3-A was introduced whereby a

mortgage without possession in favour of a Bank or

institution approved by the Government was permitted subject

to certain conditions. The Governor further framed a

regulation to amend the Andhra Pradesh Scheduled Areas Land

Transfer Regulation, 1959, being A.P. Regulation No.I of

1978 which came into force with effect from October 24,

1978. Regulation No.I of 1978 inserted sections 3-B and 6-A.

Section 3-B prohibited registration of documents of transfer

while sections 6-A and 6-B respectively provided for

punishment for acquiring any immovable property after a

decree for ejectment was passed. The punishment is to the

extent of rigorous imprisonment of one year or fine of

Rs.2000/- or both. Section 6-B makes such an offence

cognizable.

It may be stated that a Division Bench of this Court

consisting of M.P. Thakkar and B.C. Ray, JJ., by their

decision dated 14th July 1988 in Civil Appeal No.2299-2300

of 1972 upheld the validity of the provisions of the

Regulation in so far as they sought to declare as void any

transfer of immovable property in the agency tracts entered

into even by a non-tribal in favour of another non-tribal.

Even though the aforesaid provisions of the Regulations

represent a species of welfare legislation for protecting

the illiterate tribals from exploitation at the hands of

non-tribals the short question which arises for our

consideration is as to whether these beneficial provisions

have any retrospective effect.

Our conclusion and the reasons for the same

Having given our anxious consideration to the rival

contentions canvassed for our consideration by the learned

counsel appearing for the respective parties we have reached

the conclusion that the Full Bench of the High Court was

perfectly justified in taking the view that on the express

language of the Regulation, it was prospective in nature and

even by necessary intendment it could not be posited that

the framer of the Regulation wanted to give it any

retrospective effect. Reasons for our aforesaid conclusion

are obvious. The Regulation I of 1959 originally applied

only to scheduled areas of East Godavari, West Godavari,

Viskahapatham and Srikakulam districts. By amending

Regulation II of 1963, it was extended to Telengana region

comprising of Adilabad, Warangal, Khammam and Mahbubnagar

districts of Andhra Pradesh. That extension to districts in

Telengana area became effective from 1.12.1963. Clause (2)

(a) of the Regulation defines `Agency Tracts' to mean, `the

areas in the districts of East Godavari, West Godavari,

Viskhapatham, Srikakulam, (I) Adilabad, Warangal, Khammam

and Mahbubnagar declared, from time to time, as Scheduled

Areas by the President under sub-paragraphs (I) of paragraph

6 of the Fifth Schedule to the constitution'. The term

`transfer' is defined by Clause (2)(g) of the Regulation to

mean, `mortgage with or without possession, lease, sale,

gift, exchange or any other dealing with immovable property,

not being a testamentary disposition and includes a charge

on such property or a contract relating to such property in

respect of such mortgage, lease sale, gift, exchange or

other dealing'. Then follows Section 3(1)(a) which is

material for our present purpose. It is as under:

"3.(1)(a) - Notwithstanding any thing

contained in any enactment, rule or law

in force in the Agency tracts, any

transfer of immovable property situated

in the Agency tracts by a person,

whether or not such person is a member

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of a Schedule Tribe, shall be absolutely

null and void, unless such transfer is

made in favour of a person, who is a

member of a Scheduled Tribe or a society

registered or deemed to be registered

under the A.P. Cooperative Societies

Act, 1964, which is composed solely of

members of the Scheduled Tribes."

It may be noted that the words `whether or not such person

is a member of a Scheduled Tribe' as found in Section

3(1)(a) were inserted by Regulation I of 1970 meaning

thereby prior to the amending Regulation coming into force

Section 3(1)(a) hit transfers of immovable property situated

in agency tracts by only a member of a scheduled tribe and

if such transfer was made by a non-tribal such transaction

was outside the sweep of Section 3(1)(a). A close reading of

Section 3(1)(a) indicates that after coming into force of

the said provision any transfer of immovable property which

is in the sweep of Section 3(1)(a) would be absolutely null

and void unless the transfer falls within the excluded

category as mentioned in the said provision. This Section

nowhere indicates either expressly or even impliedly that it

is meant to adversely affect completed transactions of

transfer which might have taken place prior to the coming

into force of Section 3(1)(a) of the Regulation. Mrs.

Amareshwari, learned senior counsel could not effectively

urge that there was any such express indication of

retrospectivity in the said provision or any other part of

the Regulation. It is obvious that if Section 3(1)(a) was to

apply retrospectively to hit even past transfers it would

have mentioned with reference to transfer of immovable

property as under :

Whether effected before or after coming

into operation of this Regulation."

Such or similar words are conspicuously absent. Therefore,

Section 3(1)(a) as it stands cannot be said to have any

express retrospective effect. In this connection we may also

mention one submission canvassed by learned senior counsel

for the authorities. She contended that Section 3 sub-

section (1)(b) indicates such a retrospective effect. The

said provision which is noted earlier reads as under :

"3(1)(b). Until the contrary is proved,

any immovable property situated in the

Agency tracts and in the possession of a

person who is not a member of a

Scheduled Tribe, shall be presumed to

have been acquired by such person or his

predecessor in possession through a

transfer made to him by a member of a

Scheduled Tribe."

It is difficult to appreciate how this provision can be of

any assistance to the learned senior counsel, for urging any

retrospective operation of Section 3. Section 3(1)(b) enacts

a rule of evidence which may be pressed in service in a

properly constituted enquiry in cases where the main

provision of Section 3(1)(a) gets attracted meaning thereby

if in connection with any transfers of immovable property

situated in Agency tracts effected after the coming into

operation of Section 3(1)(a), a question arises whether the

transfer was made by a transferor who was a member of a

Scheduled Tribe and if it is shown that such transferred

land was in possession of a non-tribal, a rebuttable

presumption would arise under Section 3(1)(b) that such

transferor was a member of Scheduled Tribe. This provision

has nothing to do with any retrospective effect of Section

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3(1)(a) itself nor does it even remotely indicate that

because of the rule of evidence enacted in Section 3(1)(b),

even prior completed transfers would also be covered by the

sweep of Section 3(1)(a).

Next Mrs. Amareshwari submitted that at least by

necessary implication such retrospectivity can be culled out

and for that purpose she invited our attention to Sections 9

and 10(1) of the Regulation. The said provisions read as

under :

"9. The Agency Tracts Interest and Land

Transfer Act, 1917 (Madras Act I of

1917) is hereby repealed to the extent

to which any of the provisions contained

therein correspond, or are repugnant, to

any of the provisions contained in this

Regulation.

10. (1) The provisions contained in

this Regulation shall not affect ---

(a) Any transfer made or sale effected

in execution of a decree before the

commencement of the Agency Tracts

Interest and Land Transfer Act, 1917

(Madras Act I of 1917), or

(b) Any transfer made or sale effected

in execution of a decree after the

commencement of the said Act and before

the commencment of this Regulation, if

such transfer or sale was valid under

the provisions of the said Act."

We fail to appreciate how the said Sections can be of any

avail to the learned senior counsel for establishing the

case of implied retrospective effect of the Regulation.

Section 9 deals with the repeal of the erstwhile Agency

Tracts Interest and Land Transfer Act, 1917. It is not in

dispute between the parties that the said Act of 1917 did

not apply to Telengana area. Consequently reference to

Section 9 in connection with lands situated in Telengana

area becomes irrelevant. Similarly Section 10 which effects

savings in cases where the earlier Act of 1917 which had

applied stood repealed by Section 9, also becomes

irrelevant. However, so far as areas which were earlier

governed by the Act of 1917 are concerned, even for them, we

fail to appreciate, how Section 9 can be pressed in service

by learned senior counsel for the appellant authorities to

cull out an implied retrospective effect of the Regulation.

In order to show that Section 3 of the Regulation had any

implied retrospective effect provisions pertaining to repeal

and savings contained in Sections 9 and 10 would be of no

assistance. No other provisions of the Regulation could be

pressed in service by learned senior counsel for supporting

her contention that Section 3(1) (a) was retrospective by

any necessary implication. It is obvious that transactions

which have taken place years back prior to the very parent

Regulation No.I of 1959 seeing the light of the day, and

which had created vested rights in favour of the transferees

could not be adversely affected by the sweep of Section

3(1). It cannot be said to have any implied retrospective

effect which would nullify and confiscate pre-existing

vested rights in favour of the concerned transferees.

transfers in whose favour had become final and binding and

were not hit by the then existing provisions of any

nullifying statutes. In this connection we may usefully

refer to Francis Bennion's Statutory Interpretation, Second

Edition at page 214 wherein the learned author, in Section

97, deals with retrospective operation of Acts. The learned

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author has commented on this aspect as under :

"The essential idea of a legal system is

that current law should govern current

activities. Elsewhere in this work a

particular Act is likened to a

floodlight switched on or off, and the

general body of law to the circumambient

air. Clumsy though these images are,

they show the inappropriateness of

retrospective laws. If we do something

today, we feel that the law applying to

it should be the law in force today, not

tomorrow's backward adjustment of it.

Such, we believe, is the nature of law.

Dislike of ex post facto law is

enshrined in the United States

Constitution and in the constitutions of

many American states, which forbid it.

The true principle is that lex prospicit

non respicit (law looks forward not

back). As Willes J said, retrospective

legislation is `contrary to the general

principle that legislation by which the

conduct of mankind is to be regulated

ought, when introduced for the first

time, to deal with future acts, and

ought not to change the character of

past transactions carried on upon the

faith of the then existing law.'

Retrospectivity is artificial,

deeming a thing to be what it was not.

Artificiality and make-believe are

generally repugnant to law as the

servant of human welfare. So it follows

that the courts apply the general

presumption that an enactment is not

intended to have retrospective effect.

As always, the power of Parliament to

produce such an effect where it wishes

to do so is nevertheless undoubted. The

general presumption, which therefore

applies only unless the contrary

intention appears, is stated in Maxwell

on the Interpretation of Statutes in the

following emphatic terms: `It is a

fundamental rule of English law that no

statute shall be construed to have a

retrospective operation unless such a

construction appears very clearly in the

terms of the Act, or arises by necessary

and distinct implication.'

Maxwell's statement has received

frequent judicial approval. It is

however too dogmatically framed, and

describes as a rule what (for reasons

stated in Code s 180) is really no more

than a presumption which, in the instant

case, may be outweighed by other

factors. Where, on a weighing of the

factors, it seems that some

retrospective effect was intended, the

general presumption against

retrospectivity indicates that this

should be kept to as narrow a compass as

will accord with the legislative

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intention."

Mr. Bobde, learned counsel appearing for the

respondents as amicus curiae at our request, invited our

attention to a decision of this Court in the case of R.

Rajagopal Reddy (Dead) by LRs. and Others v. Padmini

Chandrasekharan (Dead) by LRs. (1995 (2) SCC 630) wherein

one of us (Majmudar, J.) speaking for a Three Judge Bench on

the question of retrospective effect of a statutory

provision observed as under :

"... Even otherwise, it is now well

settled that where a statutory provision

which is not expressly made

retrospective by the legislature seeks

to affect vested rights and

corresponding obligations of parties,

such provision cannot be said to have

any retrospective effect by necessary

implication. In Maxwell on the

Interpretation of Statutes, 12th Edn.

(1969), the learned author has made the

following observations based on various

decisions of different courts, specially

in Re: Athlumney, (1898) 2 Q.B. at pp.

551, 552 :

`Perhaps no rule of construction is

more firmly established than this - that

a retrospective operation is not to be

given to a statute so as to impair an

existing right or obligation, otherwise

than as regards matters of procedure,

unless that effect cannot be avoided

without doing violence to the language

of the enactment. If the enactment is

expressed in language which is fairly

capable of either interpretation, it

ought to be construed as prospective

only.' The rule has, in fact, two

aspects, for it, `involves another and

subordinate rule, to the effect that a

statute is not to be construed so as to

have a greater retrospective operation

than its language renders necessary.' '

In the case of Garikapati Veeraya

v. N. Subbiah Choudhry (AIR 1937 SC 540

at p.553, para 25) Chief Justice S.R.

Das speaking for this Court has made the

following pertinent observations in this

connection :

`The golden rule of construction is

that, in the absence of anything in the

enactment to show that it is to have

retrospective operation, it cannot be so

construed as to have the effect of

altering the law applicable to a claim

in litigation at the time when the Act

was passed.' "

Therefore, we agree with the submission of Mr Bobde, learned

counsel for respondents, that the provisions of Section 3(1)

of the Regulation are purely prospective in nature and do

not affect past transactions of transfers effected between

tribals and non-tribals or between non-tribals and non-

tribals themselves in the Agency Tracts at a time when

neither Regulation I 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

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subsequently enacted Regulations.

Mrs. Amareshwari, learned senior counsel in the

alternative contended that even assuming that all these

Regulations do not adversely affect past transactions even

then, after the coming into force of these Regulations in

the concerned Agency Tracts, the possession of erstwhile

transferees would become illegal and get hit by Section 3(1)

of the Regulation. It is not possible to agree with this

contention for the simple reason that before the continued

possession is found fault with, it must be shown that the

initial entry of the transferee was violative of any

provision of law or that by any subsequent statute such

continuance of possession under an originally valid

transaction, would get adversely affected. Section 3(1)

nowhere whispers about such an eventuality. On the contrary,

employment of terminology to the effect, "transfer of

immovable property situated in the Agency tracts by a

person, whether or not such person is a member of a

Scheduled Tribe, shall be absolutely null and void, unless

such transfer is made in favour of a person who is a member

of a Scheduled tribe" clearly indicates that Section 3(1)

(a) seeks to hit only those transfers which take place after

the coming into force of that provision and when such

transfers are found to be absolutely null and void then only

the question of continued illegal possession of such

transferee and of evicting such transferee from the land and

restoration of such land to the transferor would arise under

Section 3(2)(a). The said provision reads as under :

"3.(2)(a). Where a transfer of immovable

property is made in contravention of

sub-section (I), the Agent, the Agency

Divisional Officer or any other

prescribed officer may, on application

by any one interested, or on information

given in writing by a public servant, or

suo-motu decree ejectment against any

person in possession of the property

claiming under the transfer after due

notice to him in the manner prescribed

and may restore it to the transferor or

his heirs."

On a conjoint reading of Section 3(1)(a) and Section

3(2)(a), it becomes clear that the Section seeks to hit the

transfers effected after the Section came into force and

possession only under such invalid transfers is sought to be

dealt with for the purpose of eviction of transferees and

restoration of possession to transfers, as the case may be,

under Section 3(2)(a) of the Regulation. Consequently, the

alternative submission of learned senior counsel for the

authorities that even though transfer of immovable property

in the Agency tracts may not be hit by Section 3(1)(a) still

possession under such transfers could be restored to the

original transferor under Section 3(2)(a), cannot be

countenanced. Section 3(2)(a) is a corollary to Section

3(1)(a) and cannot have any independent role to play. Nor

can it cover any area which is not encompassed by the sweep

of Section 3(1)(a). In this connection Mrs. Amareshwari,

learned senior counsel also invited our attention to two

decisions of this Court. Mrs. Amareshwari, learned senior

counsel for the appellant authorities invited our attention

to a Constitution Bench judgment of this Court in Rao Shiv

Bahadur Singh and Another v. The State of Vindhya Pradesh

(1953 SCR 1188). In that case the Constitution Bench of this

Court speaking through Jagannadhadas J., had to consider

whether prohibition of Article 20 of the Constitution

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against convictions and subjections to penalty would cover

ex post facto laws passed before the Constitution was

promulgated. Answering the question in the affirmative it

was observed that the prohibition contained in Article 20 of

the Constitution against convictions and subjections to

penalty under ex post facto laws is not confined in its

operation to post-Constitution laws but applies also to ex

post facto laws passed before the Constitution in their

application to pending proceedings. We fail to appreciate

how this decision can be of any avail to the learned senior

counsel for the appellant authorities. On the wording of

Article 20 the aforesaid view was taken by the Constitution

Bench. The wordings of Section 3(1)(a) read with Section

3(2)(a) of the Regulation are entirely different and they

have to be construed in their own light. The learned senior

counsel Mrs. Amareshwari then invited our attention to

another decision of the Constitution Bench of this Court in

Bishun Narain Mishra v. State of Uttar Pradesh & Others

(1965 (1) SCR 693). In that case Wanchoo J., speaking for

the Constitution Bench had to examine the effect of a rule

promulgated by Government of Uttar Pradesh under Article 309

of the Constitution reducing the age of superennuation of

Government servants from 58 years to 55 years. The appellant

before this Court who got hit by the said rule raised

various contentions one of which was that the rule was

retrospective in character and, therefore, bad as no

notification promulgating the rule could be made with

retrospective effect. Repelling this contention it was held

by the Constitution Bench that there was no retrospectivity

in the rule. All that it provided was that from the date it

came into force the age of retirement would be 55 years. The

rule would operate only for the period after it came into

force. Nor did the proviso make it retrospective. It only

provided as to how the period of service beyond 55 years

should be treated in view of the earlier rule of 1957 which

was being changed by the rule of 1961. The second order

issued on the same day clearly showed that there was no

retrospective operation of the rule for in actual fact no

Government servant below 58 years was retired before the

date of the new rule i.e. May 25, 1961. Thus the new rule

reducing the age of retirement from 58 years to 55 years

could not be held to be retrospective. It is difficult to

appreciate how this judgment can be of any avail to learned

senior counsel for the appellant authorities, because the

appellant in that case continued in Government service and

at that time the new rule reducing the age of superannuation

came into force his superannuation was governed by the new

rule reducing the age of superannuation from 58 to 55 years.

There was no question of any retrospective effect of the

said rule. But the new rule clearly covered the then

existing service conditions of Government servants who were

still in service. Section 3(1) of the Regulation cannot be

supported on the ratio of that judgment to nullify vested

rights under past completed transactions. As we have already

discussed earlier, Section 3(1)(a) read with Section 3(2)(a)

of the Regulation seeks to hit only those transfers of lands

in Agency tracts which take place after the advent of

Section 3(1)(a) of the Regulation. Possessions under

transfers which are beyond the sweep of Section 3(1)(a)

cannot be said to have continued under any invalid transfers

as envisaged by Section 3(1)(a). Such possessions obtained

under the then existing old and valid transfers would be

outside the ken of the Regulation itself. The alternative

submission canvassed by learned senior counsel for the

authorities, therefore, also has no substance and has got to

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be rejected.

These were the only contentions canvassed in support of

the appeals preferred by the authorities under the

Regulation. There is no substance in these contentions. It

must be held that as the transfers in these cases were

effected years back, prior to the coming into force of the

Regulations in question, they could not be covered by these

Regulations. The authorities acting under the Regulations

had no jurisdiction to deal with them. In the result the

Civil Appeal Nos.2909 of 1977; 6 of 1991; Civil Appeal

No.8422/95 arising out of S.L.P.(C) No.10746 of 1981 and

Civil Appeal No.8423/95 arising out of S.L.P.(C) No.1041 of

1986 will have to be dismissed.

Before parting with these appeals we have to place on

record our appreciation for the assistance rendered by Mr.

Bobde, learned counsel who on our request was good enough to

appear amicus curiae for the respondents in these cases.

So far as Civil Appeal No.8424/95 arising out of

S.L.P.(C) No.2407 of 1986 is concerned, though the High

Court had dismissed the writ petition on the ground of

alternative remedy, in view of our decision on the main

controversy and our finding that the provisions of the

Regulation would not hit transaction of transfers entered

into prior to coming into force of the Regulation this

appeal is required to be allowed on merits. In the present

case even though the sale was of the land situated in

Adilabad District of Telengana region which was forming a

part and parcel of the Agency tracts, as the transaction was

of 3.6.1951, much prior to the coming into force of the

Regulation I of 1959 as amended by Regulation II of 1963

which became effective in Adilabad from 31.12.1963, this

transaction was outside the sweep of Section 3(1) of the

Regulation. Consequently no useful purpose would be served

by relegating the appellant to the remedy of revision before

the State authorties when this question is concluded by our

present judgment. The appeal is accordingly allowed. The

judgments of the Division Bench of the High Court and that

of learned Single Judge are set aside. Writ Petition filed

by the appellant before the High Court is allowed. The

orders of the authorities below against the appellant passed

under Section 3(1)(a) read with Section 3(2)(a) of the

Regulation will stand quashed and set aside. As these

appeals are being disposed of on a question of law and

keeping in view the facts and circumstances of the cases,

even though the appeals by the authorities are dismissed and

the last appeal moved by T. Rajaiah arising out of S.L.P.(C)

No.2407 of 1986 is allowed, there will be no order as to

costs in all these appeals.