State of Kerala Vs. Dr. P. Nallathampi thera and ors. - Court Judgment

Excerpt:
constitution - transfer of land by schedule tribes - kerala scheduled tribes (restriction on transfer of lands and restoration of alienated lands) act, 1975 - state government passed act for restriction of transfer of lands of schedule tribes - act implemented after long time - petition filed for effectively implementing provisions of act - court passed directions to implement act effectively. - - this court allowed that prayer as well. there is a parrot like consistency in the reason given. can a democratic state with the rule of law as its beacon light, bow to such illegal resistance to the implementation of a welfare legislation to benefit the oppressed classes ? clearly, it cannot.orderp.k. balasubramanyan, j. 1. the kerala scheduled tribes (restriction on transfer of lands and restoration of alienated lands) act, 1975 as pased by the kerala legislature received the assent of the president on 11-4-1975. the avowed object was'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 was obviously intended to ameliorate the lot of the underprivileged tribes who despite 'paper plans and multi-point programmes, are at the victim's end of barbarity and injustice, privation and sharp practice inflicted on them by the 'civilized' gentry.' (see tribal uplift and rule of law by justice v. r. krishna iyer). but despite the enactment, the same was not brought into force until 1-1-1982, that too by a notification under section 1(3) of the act on 24-1-1986 giving it retrospective effect. the bringing into force of the law brought no succour to the tribals since nothing was done to enforce that law or to bring relief to the tribals. ultimately, the petitioner in this original petition, moved this court in the year 1988 for the issue of a writ of mandamus to the state to implement the law and the union to insist on its implementation. this court by judgment dt. 15-10-1993 directed the state to give directions to the authorities under the act to dispose off the applications pending before them within 6 months of that date. in that judgment this court recorded the assurance of the then additional advocate generalthat: 'utmost steps would be taken for the disposal of the applications and that the act would be enforced in all its rigour'. (emphasise supplied). but again, no will to implement the legislation was exhibited but an extension of time was sought for from this court to implement the act. this court by order dt. 12-4-1994 extended the time by six months. the implementation lagged, in the absence of the will to implement and on 11-10-1994, another application was filed praying for further extension of time by one year. this court allowed that prayer as well. thus the time to implement a welfare legislation obtained from this court, extended to two years. 2. the state again filed another application for extension of time by one more year to implement the act. this court felt that the will to implement the act was wanting and the court had to play a more active role to ensure the implementation of the act. though this court granted extension of time by six months, this court issued the following directions to moniter the progress. '(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; i.e., 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.' 3. reports filed before this court were scrutinised by this court assisted by the additional advocate general. though a number of applications filed under the act were allowed, no actual restoration was effected even in cases where no appeals were filed and no compensation was payable. this was also referred to by the petitioner in a petition filed by him before this court on 1-3-1996. in that situation, the learned additional advocate general gave an assurance to the court that the order would be implemented. this was the order passed by this court on 28-3-1996. 'the learned additional advocate generalassures the court that all out efforts will bemade to dispose of all the pending applications within the time stipulated by this courtand further that wherever there has been finalorders passed, actual restoration will also beeffected. in view of this submission no formalorders are necessary today. post on 31-5-1996.' (emphasise supplied.) 4. ultimately, a situation was reached wherein, most of the applications made by the tribals under the act have been disposed of by the primary authorities under the act. a number of orders for restoration have also become final. the matter came up for hearing on 24-6-1996 when the government pleader sought an adjournment of the application. this court granted that adjournment but specifically drew the attention of the government pleader to the order dt. 28-3-1996 quoted above containing the assurance of the additional advocate general. further affidavits were filed by the revenue divisionalofficers reporting progress in the disposal of the application made under the act and stray and insignificant cases of actual implementation. the matter underwent further adjournments and ultimately on 24-7-1996 this court acceded to the request of the advocate general to give some more time to put in an affidavit on behalf of the state. in that order this court made a pointed reference to the submission made by the additional advocate general before the court on 28-3-1996 regarding actual restoration. 5. meanwhile, a citizen from kattappana on behalf of the tribals, wrote a letter dt. 11-7-1996 to the cheif justice of this court about the non-recovery of the lands to which the tribals were entitled to. the honourable acting chief justice ordered on 16-7-1996, that the said letter also be placed in the present file to be dealt with. on 3-8-1996, the petitioner also submitted a petition inter alia complaining that the orders even where they were capable of being implemented, are not being implemented. 6. the matter came up again on 7-8-1996. the government pleader sought time and submitted that the matter may be heard on 9-8-1996. this court granted time. on 9-8-1996, an affidavit was filed by the principal secretary, revenue and sc/st development, practically informing this court that there was not the will to implement the act or the writ, directions and orders issued by this court or to keep up the assurance given to this court by the law officers of the state. he has stated that difficulties are anticipated if the orders of restoration were to be implemented. right from the beginning, the reason given for non-implementation of the act was more or less the same. there is a parrot like consistency in the reason given. it indicated a lack of will to implement the act. the exhortion of mr. justice krishna iyer, in the article above referred to on the need for 'a new tribal jurisprudence, with processual flexibility, decisional swiftness and early finality, affirmative action strategies and quick execution on the spot of orders passed...' comes to mind and this court as the depository of the constitutional power and as the protector ofthe constitutionally protected oppressed class cannot but insist on the implementation of the act and the orders passed thereunder. 'surely, it is not unreasonable to restore unto the 'tribals' what originally belonged to them but of which they were deprived as a result of exploitative invasion on the part of the 'non-tribals'.'(see p. rami reddy v. state of a.p., air 1988 sc 1626 (1629). as stated by sir george brennan (sic), the 10th chief justice of the high court of australia while taking chargeof his office, 'but this court is not a parliament of policy; it is a court of law. judicial method is not concerned with ephemeral opinions of the community. the law is most needed when it stands against popular attitudes sometimes engendered by those with power and when it protects the unpopular against the clamour of the multitude.'here, the court sees from what has happended thus far, that it is needed to protect the tribals to secure the benefit of a legislation enacted for their benefit, and in respect of the implementation of which, there is an organised resistance which has even made those entrusted with the enforcement of the rule of law to drag their feet. the affidavit dt. 8-8-1996 re-emphasises this position and consequently this court is compelled to act to bring succour to the unorganised, depressed and oppressed tribes. 7. in the affidavit dt. 8-8-1996, the principal secretary, revenue and sc/st development after referring to the persistent earlier directions of this court has stated : '7. as a result of all these directions and support from the state government, all the revenue divisional officers were able to dispose of all the applications received by them in accordance with the directions of this hon'ble court. 8. it may be pointed out that the revenue divisional officers could have achieved this result much earlier but for general election to the state legislative assembly and parlia-ment which kept them fully engaged for three mpnths. the organised attempt made by the non-tribal occupants on tribal land also created problem for the revenue staff. in fact even notices could not be served through village officers on account of the threats by the occupants. 9. the second phase of the implementation of the provisions of the act has met with more problems and hurdles and is more time consuming. the tribal lands are found scattered all over the hilly tracts of the state. most of them are unaccessible places. still the revenue divisional officers with the help of the field staff were able to assess the compensation for the improvements made by the occupants. most of these occupants have had the land in their possession for over 15 to 30 years. they have put up buildings and other permanent structures and also cultivated the land with crops particularly perennial crops. it was a laborious task for the revenue divisional officers to assess the value of these improvements counting each and every plant/tree and also the buildings and other permanent structures put up. 10. the land can be restored to the tribals only on payment of compensation by the tribals for which they have to avail loan from the government. but in many of the cases the tribals have not available themselves of the loan facilities available from government. for example, in the case of revenue divisional officer, ottapalam, compensation has to be paid in as many as 974 cases involving an amount of rs. 317 lakhs but so far no tribal has even applied for a loan.' it may be true that in some of the cases, the compensation may have to be ascertained and paid but as is clear from the proviso to section 11(1) of the act, 'no amount shall be payable if the transfer was effected on or after the commencement of this act'. the secretary has no case that there are no cases to which the above proviso applies. in fact, the various reports filed before this court by the revenue divisional officers, show that a fair number of applications allowed are those where no compensation is payable. what could be the excuse for not implementing those orders. the alibi put forward is that there is organisedresistance to the attempts to implement the orders. can a democratic state with the rule of law as its beacon light, bow to such illegal resistance to the implementation of a welfare legislation to benefit the oppressed classes clearly, it cannot. if it is permitted, it will be the negation of the very concept of the rule of law. i am sure that this court as the sentinel of the qui vive has the duty to ensure our continued commitment to the rule of law and the constitution. i, therefore, consider it the duty of this court to issue the necessary directions in that behalf. 8. it is stated in the affidavit filed, that the exploitation of the tribals cannot be set right overnight. that may be true. but what is forgotten, is that the act was enacted in the year 1975 and it required a mandamus and series of extensions of time and the fixing of a rigid time-frame by this court in the year 1995, for the concerned, even to take up for disposal the applications filed by the tribals under the act. is it 'overnight', according to the deponent i can only assume that he had not fully informed himself about the fact situation while making that statement. 9. the learned advocate general submitted that 466 appeals against orders are pending and as per the directions of this court dt. 24-7-1996, instructions have been issued to the appellate authorities to hear and dispose of the appeals expeditiously. no further directions in that regard are, therefore, called for now. 10. but, in the light of the discussion as above and the affidavit filed, i think it necessary to issue at this stage the following directions: (1) the revenue divisional officers aredirected 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 therevenue 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. post for further orders on 1-10-1996.

Judgment:
ORDER

P.K. Balasubramanyan, J.

1. The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 as pased by the Kerala Legislature received the assent of the President on 11-4-1975. The avowed object was

'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 was obviously intended to ameliorate the lot of the underprivileged Tribes who despite 'paper plans and multi-point programmes, are at the victim's end of barbarity and injustice, privation and sharp practice inflicted on them by the 'civilized' gentry.' (See Tribal Uplift and Rule of Law by Justice V. R. Krishna Iyer). But despite the enactment, the same was not brought into force until 1-1-1982, that too by a notification under Section 1(3) of the Act on 24-1-1986 giving it retrospective effect. The bringing into force of the law brought no succour to the Tribals since nothing was done to enforce that law or to bring relief to the Tribals. Ultimately, the petitioner in this Original Petition, moved this Court in the year 1988 for the issue of a writ of mandamus to the State to implement the law and the Union to insist on its implementation. This Court by judgment dt. 15-10-1993 directed the State to give directions to the Authorities under the Act to dispose off the applications pending before them within 6 months of that date. In that judgment this Court recorded the assurance of the then Additional Advocate Generalthat:

'utmost steps would be taken for the disposal of the applications and that the Act would be enforced in all its rigour'.

(Emphasise supplied).

But again, no will to implement the legislation was exhibited but an extension of time was sought for from this Court to implement the Act. This Court by order dt. 12-4-1994 extended the time by six months. The implementation lagged, in the absence of the will to implement and on 11-10-1994, another application was filed praying for further extension of time by one year. This Court allowed that prayer as well. Thus the time to implement a welfare legislation obtained from this Court, extended to two years.

2. The State again filed another application for extension of time by one more year to implement the Act. This Court felt that the will to implement the Act was wanting and the Court had to play a more active role to ensure the implementation of the Act. Though this Court granted extension of time by six months, this Court issued the following directions to moniter the progress.

'(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; i.e., 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.'

3. Reports filed before this Court were scrutinised by this Court assisted by the Additional Advocate General. Though a number of applications filed under the Act were allowed, no actual restoration was effected even in cases where no appeals were filed and no compensation was payable. This was also referred to by the petitioner in a petition filed by him before this Court on 1-3-1996. In that situation, the learned Additional Advocate General gave an assurance to the Court that the order would be implemented. This was the order passed by this Court on 28-3-1996.

'The learned Additional Advocate Generalassures the Court that all out efforts will bemade to dispose of all the pending applications within the time stipulated by this Courtand further that wherever there has been finalorders passed, actual restoration will also beeffected. In view of this submission no formalorders are necessary today. Post on 31-5-1996.'

(Emphasise supplied.)

4. Ultimately, a situation was reached wherein, most of the applications made by the Tribals under the Act have been disposed of by the primary Authorities under the Act. A number of orders for restoration have also become final. The matter came up for hearing on 24-6-1996 when the Government Pleader sought an adjournment of the application. This Court granted that adjournment but specifically drew the attention of the Government Pleader to the order dt. 28-3-1996 quoted above containing the assurance of the Additional Advocate General. Further affidavits were filed by the Revenue DivisionalOfficers reporting progress in the disposal of the application made under the Act and stray and insignificant cases of actual implementation. The matter underwent further adjournments and ultimately on 24-7-1996 this Court acceded to the request of the Advocate General to give some more time to put in an affidavit on behalf of the State. In that order this Court made a pointed reference to the submission made by the Additional Advocate General before the Court on 28-3-1996 regarding actual restoration.

5. Meanwhile, a citizen from Kattappana on behalf of the Tribals, wrote a letter dt. 11-7-1996 to the Cheif Justice of this Court about the non-recovery of the lands to which the Tribals were entitled to. The Honourable Acting Chief Justice ordered on 16-7-1996, that the said letter also be placed in the present file to be dealt with. On 3-8-1996, the petitioner also submitted a petition inter alia complaining that the orders even where they were capable of being implemented, are not being implemented.

6. The matter came up again on 7-8-1996. The Government Pleader sought time and submitted that the matter may be heard on 9-8-1996. This Court granted time. On 9-8-1996, an affidavit was filed by the Principal Secretary, Revenue and SC/ST Development, practically informing this Court that there was not the will to implement the Act or the writ, directions and orders issued by this Court or to keep up the assurance given to this Court by the law officers of the State. He has stated that difficulties are anticipated if the orders of restoration were to be implemented. Right from the beginning, the reason given for non-implementation of the Act was more or less the same. There is a parrot like consistency in the reason given. It indicated a lack of will to implement the Act. The exhortion of Mr. Justice Krishna Iyer, in the article above referred to on the need for 'a new tribal jurisprudence, with processual flexibility, decisional swiftness and early finality, affirmative action strategies and quick execution on the spot of orders passed...' comes to mind and this Court as the depository of the Constitutional power and as the protector ofthe constitutionally protected oppressed class cannot but insist on the implementation of the Act and the orders passed thereunder.

'Surely, it is not unreasonable to restore unto the 'tribals' what originally belonged to them but of which they were deprived as a result of exploitative invasion on the part of the 'non-tribals'.'

(See P. Rami Reddy v. State of A.P., AIR 1988 SC 1626 (1629). As stated by Sir George Brennan (sic), the 10th Chief Justice of the High Court of Australia while taking chargeof his office,

'But this Court is not a Parliament of Policy; it is a Court of law. Judicial method is not concerned with ephemeral opinions of the community. The law is most needed when it stands against popular attitudes sometimes engendered by those with power and when it protects the unpopular against the clamour of the multitude.'

Here, the Court sees from what has happended thus far, that it is needed to protect the Tribals to secure the benefit of a legislation enacted for their benefit, and in respect of the implementation of which, there is an organised resistance which has even made those entrusted with the enforcement of the Rule of Law to drag their feet. The affidavit dt. 8-8-1996 re-emphasises this position and consequently this Court is compelled to act to bring succour to the unorganised, depressed and oppressed Tribes.

7. In the affidavit dt. 8-8-1996, the Principal Secretary, Revenue and SC/ST Development after referring to the persistent earlier directions of this Court has stated :

'7. As a result of all these directions and support from the State Government, all the Revenue Divisional Officers were able to dispose of all the applications received by them in accordance with the directions of this Hon'ble Court.

8. It may be pointed out that the Revenue Divisional Officers could have achieved this result much earlier but for General Election to the State Legislative Assembly and Parlia-ment which kept them fully engaged for three mpnths. The organised attempt made by the non-tribal occupants on tribal land also created problem for the revenue staff. In fact even notices could not be served through Village Officers on account of the threats by the occupants.

9. The second phase of the implementation of the provisions of the Act has met with more problems and hurdles and is more time consuming. The tribal lands are found scattered all over the hilly tracts of the State. Most of them are unaccessible places. Still the Revenue Divisional Officers with the help of the field staff were able to assess the compensation for the improvements made by the occupants. Most of these occupants have had the land in their possession for over 15 to 30 years. They have put up buildings and other permanent structures and also cultivated the land with crops particularly perennial crops. It was a laborious task for the Revenue Divisional Officers to assess the value of these improvements counting each and every plant/tree and also the buildings and other permanent structures put up.

10. The land can be restored to the tribals only on payment of compensation by the tribals for which they have to avail loan from the Government. But in many of the cases the tribals have not available themselves of the loan facilities available from Government. For example, in the case of Revenue Divisional Officer, Ottapalam, compensation has to be paid in as many as 974 cases involving an amount of Rs. 317 lakhs but so far no tribal has even applied for a loan.'

It may be true that in some of the cases, the compensation may have to be ascertained and paid but as is clear from the proviso to Section 11(1) of the Act, 'no amount shall be payable if the transfer was effected on or after the commencement of this Act'. The Secretary has no case that there are no cases to which the above proviso applies. In fact, the various reports filed before this Court by the Revenue Divisional Officers, show that a fair number of applications allowed are those where no compensation is payable. What could be the excuse for not implementing those orders. The alibi put forward is that there is organisedresistance to the attempts to implement the orders. Can a democratic State with the Rule of Law as its beacon light, bow to such illegal resistance to the implementation of a welfare legislation to benefit the oppressed classes Clearly, it cannot. If it is permitted, it will be the negation of the very concept of the Rule of Law. I am sure that this Court as the sentinel of the qui vive has the duty to ensure our continued commitment to the Rule of Law and the Constitution. I, therefore, consider it the duty of this Court to issue the necessary directions in that behalf.

8. It is stated in the affidavit filed, that the exploitation of the tribals cannot be set right overnight. That may be true. But what is forgotten, is that the Act was enacted in the year 1975 and it required a mandamus and series of extensions of time and the fixing of a rigid time-frame by this Court in the year 1995, for the concerned, even to take up for disposal the applications filed by the Tribals under the Act. Is it 'overnight', according to the deponent I can only assume that he had not fully informed himself about the fact situation while making that statement.

9. The learned Advocate General submitted that 466 appeals against orders are pending and as per the directions of this Court dt. 24-7-1996, instructions have been issued to the Appellate Authorities to hear and dispose of the appeals expeditiously. No further directions in that regard are, therefore, called for now.

10. But, in the light of the discussion as above and the affidavit filed, I think it necessary to issue at this stage the following directions:

(1) The Revenue Divisional Officers aredirected 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 theRevenue 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.

Post for further orders on 1-10-1996.