STATE OF KERALA AND ANOTHER versus PEOPLES UNION FOR CIVIL LIBERTIES, KERALA STATE UNIT AND OTHERS

Citation: [2009] 11 S.C.R. 142 · Decided: 21-07-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed
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Judgment (excerpt)

A 
B 
[2009] 11 S.C.R. 142 
STATE OF KERALA AND ANOTHER 
v. 
PEOPLES UNION FOR CIVIL LIBERTIES, KERALA 
STATE UNIT AND OTHERS 
(Civil Appeal Nos. 104-105 of 2001) 
JULY 21, 2009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
KERALA SCHEDULED TRIBES (RESTRICTION ON 
C TRANSFER OF LANDS AND RESTORATION OF 
AL/ENA TED LANDS) ACT, 1975/KERALA SCHEDULED 
TRIBES (RESTRICTION ON TRANSFER OF LANDS AND 
RESTORATION OF AL/ENA TED LAND) RULES, 19861 
KERALA RESTRICTION ON TRANSFER BY AND 
D RESTORATION OF LANDS TO THE SCHEDULED TRIBES 
ACT, 1999: 
Writ of or in the nature of mandamus issued by a High 
Court directing implementation of an enactment vis-a-vis a 
E subsequent legislation altering or modifying the right of the 
beneficiaries under the former Act - Effect of - The 1999 Act 
if given a holistic view is more beneficial to the members of 
the Scheduled Tribe than the 1975 Act- Thus the 1999 Act 
by no stretch of imagination can be treated to be an arbitrary 
and unreasonable one -
Having regard to the studies 
F conducted by the State Government and as a balance of 
interest between tribals and non-tribals which has been sought 
to be achieved the provisions of the 1999 Act are intra vires 
- However, while enacting the 1999 Act, the State could not 
have repealed a portion of the 1975 Act - Such a right 
G cCJnferred on the owners of the non-agricultural lands could 
not have been taken away without payment· of compensation · 
- To that extent the 1975 Act would continue to be applied -
The State has no legislative competence to repeal that portion 
H 
142 
STATE OF KERALA v. PEOPLES UNION .FOR CIVIL 143 
LIBERTIES, KERALA STATE UNIT 
of the 1975 Act - Constitution of India,, Articles 14, 21, 46, 
A 
254, 300, 300A, Seventh Schedule - Entry 6, List Ill and Entry 
49, List If. 
DOCTRINES: 
Doctrine of co/ourable legislation - Applicability of - In 
B 
the instant case, the High Court should have examined the 
t 
question of the constitutionality of Sections 5(1) and 5(2) of 
the Kera/a Restriction on Transfer by and Restoration of 
Lands to the Scheduled Tribes Act, 1999 and not on the 
premise that the said provisions are co/ourable in nature -
c 
Constitution of India, Articles 14 and 21. 
Members of Scheduled Tribes filed applications for 
restoration of their lands i,n the year 1988 in terms of the 
l<erala Scheduled Tribes (Restriction on Transfer of o, 
-\, 
Lands) Act, 1975 and the Rules of 1986 made under the 
Act. Since the Act was not implemented in letter and spirit, 
a writ petition was filed and the High Court disposed of 
the same calling upon the State to give directions to the 
Authorities under the 1975 Act to dispose of the 
E, 
applications pending with them within six months. 
Extensions of time were sought for and two years had 
elapsed. Another application for time was filed and the 
·'I 
High Court granted a further period of six months but 
issued certain directions for monitoring the progress of 
F 
the implementation of the Act. The pending applications 
were disposed of by directing restoration of lands. 
Actually no restoration of land was effected. The writ 
petitioner filed another application. On an assurance 
given by the State, the High Court issued certain 
G 
·directions. On an intra-court appeal, .the matter was 
referred to Full Bench which granted a stay relying on or 
on the basis of a statement made before the Court that 
amendments to the 1975 Act were proposed to be made. 
Later, the stay order came to be vacated as the President 
H 
144 
SUPREME COURT REPORTS 
[2009] 11 S.C.R. 
A of India· declined to give assent to the Bill passed by the 
Legislature of Kerala. Again, the High Court granted time 
for six months to carry out the direction without prejudice 
to the right of the Government in considering the various 
aspects of the matter to bring forward suitable legislation 
B with suitable changes. Since the abovesaid orders were 
not complied with, an application under Contempt of 
Courts Act, 1971 was filed and notice was issued thereon. 
Again state reques;ted for six months' time, assuring the 
Court that a nev/I Bill would be introduced in the 
c Legislative Assembly in terms whereof a permanent 
solution to the problem of alienation of tribal lands from 
1.1.1960 to ,1.1.1986 would be dealt with. Accordingly, 
High Court extended the time limit by another three 
months. Thereafter, the Kerala State Legislature enacted 
the Kerala Restriction on Transfer by and Restoratio
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