FR THOMAS KUBUKKAT Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition filed by Fr. Thomas Kumbukkat on behalf of Kanjirappally Taluk Karshaka Samrakshana Samithy, and 14 others, raises the question of constitutional validity of the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated lands) Act, 1975 (hereinafter called the 'act' ). It is contended that even though the Act is placed in the ninth Schedule of the Constitution of India read with Art. 31-B, the provisions of the Act are not constitutional as being violative of the basic features of the Constitution of India. It is contended that the petitioners are in possession of various items of properties, in particular in forest area, and that they have obtained valid title to the property, having obtained the same from the Scheduled Tribes. They have improved the property and now it will cause great hardship, if they are to be evicted and the lands restored to the scheduled Tribes.

(2.) IT is urged before us is that the provisions of the act are contrary to the rule of law which is the basic feature of the constitution as mentioned in Kesavananda Bharati's case, (1973) 4 SCC 225, and as later explained in Waman Rao v: Union of India, (1981) 2 SCC 362. IT is contended for the petitioners that the Act provides for summary enquiry by the revenue Divisional Officer, and then there is an appeal to the Collector. The parties are not permitted to have the services of Advocates, except with the permission of the Revenue Divisional Officer, and the enquiry is also conducted in a summary manner. This, according to counsel, is violative of the basic feature of the Constitution of India. IT is also contended that the notification issued under S. 1 (3) of the Act on 24-1-1986 in the Kerala Gazette brings the Act into force with effect from 1-1-1982 and that this is not permissible in law. IT is contended that the Government has no power to bring the Act into force from an anterior date, for S. 1 (3) only says that 'it shall come into force on such date as the Government may, by notification in the gazette, appoint'.

(3.) THE next question is in regard to the validity of the notification dated 24-1-1986 which states that this Act of 1975 shall come into force from 1-1-1982. It is argued that the Government cannot give retrospective effect to the Act. Section 4 of the Act deals with restoration of immovable property alienated by a member of a Scheduled Tribe, on or after the commencement of the Act, to a non-Scheduled Tribe, without previous consent of the competent authority. THErefore, according to S. 4, even the transfers made after 1-1-1982 without permission, will be invalid, because the date of commencement is 1. 1. 1982. THE question is whether this is valid.