Holding

The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 is constitutionally valid; its provisions are within State legislative competence, are not arbitrary, and do not violate Articles 14, 19(1)(f), 31 or the right of advocacy, and therefore the appeals are dismissed.

Summary

The appellant purchased agricultural land from a tribal seller with collector's permission, but the Sub‑Divisional Officer, invoking the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, ordered restoration of possession to the tribal buyer. The appellant appealed, arguing that sections 3(1) and 4 of the Act were beyond the State's legislative competence, arbitrary, and violative of Articles 14, 19(1)(f) and 31 of the Constitution, and that Section 9A unconstitutionally barred advocates from appearing. The Supreme Court held that the Act falls within Entry 18 of List II, that the classification based on the 1 April 1957 cut‑off has a reasonable nexus, and that the provisions do not infringe the cited fundamental rights; Section 9A is valid because an advocate's right of audience is not absolute and litigants have no fundamental right of representation except under Article 22(1). Consequently, the appeals were dismissed.

Issues considered

The legislative competence of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (sections 3(1) and 4) under Entry 18 of List II of the Seventh Schedule.
Whether the adoption of 1 April 1957 as the cut‑off date for annulment of transfers is arbitrary and violative of Article 14.
Whether the Act treats equals unequally, thereby infringing Article 14, especially with respect to Scheduled Castes versus Scheduled Tribes.
Whether sections 3(1) and 4 infringe Articles 19(1)(f) and 31 of the Constitution.
Whether the definition of ‘non‑tribal transferee’ is unconstitutional.
Whether Section 9A, which bars advocates from appearing before the Collector or Revenue Tribunal, violates Article 19(1)(g) and the right of litigants to be represented.

Legislation cited

Advocates Act, 1961s. 30
Bar Councils Act, 1926s. 14(1)(a), s. 14(1)(b), s. 14(1)(c)
Bombay Tenancy & Agricultural Lands Act, 1948
Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958
Constitution of Indias. Article 14, s. Article 19(1)(f), s. Article 22(1), s. Article 31, s. Article 31B, s. Article 46
Hyderabad Tenancy & Agricultural Lands Act, 1950
Maharashtra Land Revenue Code, 1966
Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974s. 2(1), s. 3, s. 4, s. 9A

Subjects

distributive justiceland restorationscheduled tribeslegislative competenceArticle 14Article 19Article 31Ninth Scheduleadvocacy restrictionland transferequality

Judgment

224

A

LINGAPPA POCHANNA APPELWAR AND ORS.

v.

B
STATE OF MAHARASHTRA AND ANR. ETC. '
December 4, 1984

[0. CHINNAPPA REDDY, A. P. SEN AND E. S. VENKATARAMIA!l JJ.J
't
Constitution of India 1950, Articles 14, 19 (/) ({), 31, 46 and Entry 18 list
c II Seventh Schedule: Ma~arashtra Restoration of Lands to Scheduled Tribes A.ct
1974, Sections 2 (/) (i), 3, 4 and 9A & Advocates Act 1961, Section 30. State
enactment providing for annulment of transfers of agricultural lands by tribals to
non-tribals and for restoration of pos.vession-State legislature-Competency to
enact-Enactment whether valitl and constitutional-Prescribing a date for
annulment of transfers-Whether arbitrary and void-Bar on advocates appearing
in proceedings under the Act-Whether valid and reasonable.
J)
Statutory Interpretation-Distributive justice-what is-Law to be used as
instrument of distributive justice-Emphasised.

Legislation was undertaken by different States placing restrictions on
transfer of lands by members of Scheduled Castes and Tribes in pursuance of
the declared policy of the State of safeguarding, protecting and improving the
E
conditions of weaker sections of the society by providing that any such transfer
except in terms of the provisions of the different Acts shall be null ·and void.

The State Government of Maharashtra by a Government Resolution
appointed a Committee to inquire into and report on how far the provisions of
the Maharashtra Land Revenue Code, 1966, the Bombay Tenancy & Agricul~
F tural Lands (Vidharbha Region) Act, 1958 the Hyderabad Tenancy and Agri·
cultural Lands Act, 1950 and the Bombay Tenancy and Agricultural Lands
Act, 1948 had been effective in giving protection to persons belonging to
Scheduled Tribes and to suggest suitable amendments, if any of the existing •
provisions were found to be inadequate. The Committee submitted its Report,
and pointed out that inspite of section 36 (2) Maharashtra Land Revenue Code
1966, and analogous provisions in the earlier Land Revenue Laws, these were
G not found sufficient, and persons belonging to the Scheduled Tribes because of
their poverty, lack of education and general backwardness bad been exploited
by various persons and deprived of their lands, and recommended that pro·
vision should be made for restoring to persons belonging to Scheduled Tribes
the lands which had been duly transferred to other persons. After considering
H tlie aforesaiq recoaiaiendation, the State Governaien\ of Maharashtra ena~~4
L.P. APPELWAR V. MAHARASHTRA 225

the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. This ]! A
Act was included in the Ninth Schedule of the Constitution. J
- ..... ,
The Appellant purchased agricultural lands from the father of
Respondent No. 2 by a registered sale deed with the prior permission of the
Collector as reQuired by Section 47 of the Hyderabad Tenancy and Agricultural
Lands Act, 1950 and was placed in posl\ession thereof. The Sub.Divisional
Officer finding that the vendor was a gond, and a tribal within the meaning of B
section 2 (l) (j)ofthe Act initiated suo motu proceedings under section 3 (I) of
the Act for restoration of the lands to respondent No. 2, and after enquiry
finding that respondent No. 2 had given an undertaking in form III that he
required the land for his personal cultivation and :was willing to deposit the
amount fixed by him for payment of the appellant, directed under section 3 (I)
(ii) of the Act that possession should be restored to respondent No. 2. 0
\
"' The appellant preferred an appeal under section 6 to tho Land Revenue
Tribunal, which upheld the order passed by the Sub-Divisional Officer. The
Writ Petition of the appellant, was dismissed in limlne and this order was
confirmed by a Division Bench of the High Court.
D
In the Appeals to this Court, it was contended on behalf of the
appellants : (I) that sections 3 (!) and -4 of the Act which provide for
annulment of transfers of land by tribals to non-tribals effected during the
period from April t, 1957 to July 6, 1974 and for restoration of possession to
··~ them was beyond the legislative competence of the State under Entry, 18 in List
2 of the Seventh Schedule, (2) sections 3 (1) and 4 are inconsistent with, take E
away and abridge the fundamental rights conferred by Articles 14, 19 (I) (f)
and 31, (3) The adoption of the date April I, 1957 as the date from which there
was to be an annulment of transfer under sections 3 (l)'and 4 was arbitrary and
void as contravening Article 14, (4) The Act was violative of Article 14 because
it treats equals unequally : in that members of Scheduled Castes who also
constitute the weaker section of the society have been discriminated against
and there was preferential treatment afforded to non-tribal transferees who had
F
diverted the lands purchased by them to non-agricultural purposes. (5) The
definition of non-tribal transferee contained in section 2 (I) (i) offends Article
14 as it permitted an assignee of non.tribal transferee effected prior to March
15, 1971 to escai)e the consequence of annulment under section 3 (I) and 4, (6)
Sections 9A was constitutionally void as it affected the fundamental right of an
advocate enrolled by the State Bar Council to carry on his profession guarnn.
G
teed by Article 19 (!) (g), and the right of the appellants who are non-tribals
by being prevented tO be represented by a legal practitioner of their choice.

Dismissing the Appeals,

HELD : 1 (i) Our Constitution permits and even directs the State to
administer what may be termed 'distributive justice'. The concept of distributive
justice in the sphere of law-m11cing co:i.notes, the rem'.lval or economic in~qua!i.
lies an~ rectifying the injustice resqltin~ from dealings or transaclions between H
226 SUPREME COURT PEPORTS [1985] 2 S.C.R.
unequals in society. Law should be used as an instrument of distributive justice to
..... ,,.
A achieve a fair division of wealth among the members of society based upon the
principle : 'From each according to his capacity, to each according to his needs'.
Distributive justice comprehends more than achieving, lessening of inequalities
by differential taxation, giving debt relief or distribution of property owned by
one to many who have none by imposing ceiling on holdings, both agricultural
and urban, or by direct regulation of contractual transactions by forbidding ,
B
certain transactions and, perhaps, by requiring others. [239F-H ; 240A] •
(ii) The present legislation is a typical illustration of the concept of
•
distributive justice. It is nothing but a remedial measure in keeping with the
policy of the State for rendering social and economic justice to the weaker
sections oftbe society. It is intended and meant as an instrument for :alleviating
opperession, redressing bargaining imbalance, cancelling unfair advantages, and
c generally overseeing and ensuring probity and fair dealings.f(239E ; 24JE ; 242C)

It seeks to reopen transaction between parties having unequal bargaining
,
';
;
.
power resulting in transfer of title from own to another due to force of t
circumstances and also seeks to restitute the parties to their original position.
[242C]

D Manchegowda & Ors. v. State of Karnataka & Ors. [1984) 3 SCC 301,
F•teh Chand Himmatla/ v. State of Maharashtra [1977) 2 SCR 828 & Pathumma
v. State of Kere/a [1978] 2 S.C.R. 537, referred to.

2 (i) The Act strikes at transactions relating to agricultural lands effected
between members of Scheduled Tribes who admittedly belong to the weaker
sections of the society and persons not belonging to Scheduled Tribes.
E Experience in the past showed that members of the Scheduled Tribes had been
exploited ·:due to their ignorance and poverty by members belonging to the
affluent and powerful sections of the society to obtain transfer of their lands
by way of sale, gift, mortagage, exchange etc. for a nominal consideration or
for no consideration at all rendering them practically landless. The Sub..
Divisional Officers and Collectors due to their multifarious duties accorded
sanction to such transfers without application of mind to the prevalent circum~ • •
F stances. The Committee appointed by the State Government pointed out in
its Report that the provisions of the Maharashtra Land Revenue Code 1966
and the relevant tenancy Laws that were in existence had not been effective
in giving protection to persons be1onging to the Scheduled Tribes and
recommended that provisions should be made for restoring to members of •
Scheduled Tribe• the lands which had been duly transferred by them to other
persons. The Legislature therefore stepped in and reopened such transactions
by directing that lands be restored to ~)he tribal transferers free from all
G encumbrances on payment by them to the oonetribal transferees the amounts
determined by the Collector under Sub·section (4) of s. 3. [246E·H : 247A-CJ ,.
(ii) The restoration of possession by sections 3 (I) and 4 does not involve t
any deprivation of the property in the sense that there is unsettlina; or tide
without consideration. It makes detailed provisions setting out the conditions
H subject to which a transfer by a tribal of his agricultural lands to a non-tribal
L.P, APPELWAR V. MAHARASHTRA 227
may be nullified and possession restored. The object of the legislation is
restitution of the property to the persons to whom the lands originally belonged, A
subject to the adjustment of equities between the parties. [247D·F]

(iii) T~e Act in its true nature and character is a Jaw relating to
transfers and alienations of agricultural lands by members of Scheduled Tribes
in the State to persons not belonging to Scheduled Tribes. Such a law does
not fall within Entries 6 and 7 in List Ill but is within Entry 18 in List JI. [2470] B
•
(iv) The words 'other than agricultural land' in Entry 6 and the words
'but not inc1uding contracts relating to agrlt:ultural land in Entry 7 in List III
have the effect of delimiting the legislative power of the union to make a law
with respect to contracts in relation thereto. The power of the State Legislature
to make a law with respect to transfer and alienation of agricultural land under
Entry 18 in list II carries with it not only a power to make a law placing restric-
tions on transfers and alienations of such lands including a prohibition thereof,
c
but also the power to make a Jaw to reopen such transfers and .alienations.
Such a law relatable to Entry 18 in list JI of the Seventh Schedule was clearly
within the legislative competence of the State Legislature. ]248B·D]

3. The Act having been placed in the Ninth Schedule of the Constitution
the submission that sections 3 (1) and 4 arc inconsistent with. or take away or D
abridge any of the fundamental rights conferred by Art. 14, Art. J9(1)(f) or
Art. 31 of the Constitution must be rejected at the very threshold because it is
protected under Art. 3!B. [248FJ

4. (i) It is p_ermis~ible for the legislature to make a classification on the
basis of time for a law to operate. What is necessary is that there must be a
reasonable nexus between the basis of classification as to time and the object E
sought to be achieved. [248H]

(ii) The Act adopts April 1,1957 for nullification of transfers made by
tribals to non-tribals under sections 3(1) and 4 because that was the 'tillers'
day' for purposes of the Bombay Tenancy & Agricultural Lands Act, 1948, on
• the basis of which the non-tribal transferees could apply to the Tenancy Court
F
for purchase of their holdings on the ground that they were in cultivating
position thereof. There was therefore reasonable nexus for the fixation of such
date and the object sought to be achieved and the impugned Act is not viola-
tive of Art. 14. [249A-B]

• 5. (i) The appellants who were transferees from members of scheduled
Tribes cannot possibly plead the cause of members of Scheduled Castes.
Members of Scheduled Tribes i.e. tribals who are mostly aboriginals constitute
G
a distinct class who need a special protection of the State. [249E]

(ii) There is no question of any differential treatment between two
classes of persons equally situate when a part of the land is diverted to a non-
agricu1tural purpose viz. the construction of a dwelling house or the setting
up of an industry, the State legislature obviously could not have made a law
for a 0 nulmen\ of transfer ofsu~b lands bytribals under Entry 18 in List II as H
228 SUPREME COURT REPORTS (1985] 2 S.C.R.
the lands having been diverted to non-agricultural purposes ceased to be
A agricultural lands. In the case of such non-agricultural land, if the State
Legislature made such a law it would not be effective unless it was reserved for
the assent of the President and received such assent. [2490-H ; 250A]
6. The expression 'non-tribal transferee' as defined in section 2 (1) (i)
is an inclusive one. It is not correct to say that it permits an assignee of a non..
tribal transferee effected prior to March 15,\971 to escape the consequences of
B annulment under sections 3(1) and 4 of the Act. The Legislature appointed
March 15, 1971 with a view to give retrospective effect to the provisions of
Sections 3(1) and 4 of the Act as 'that was the date on which the Government
constituted the Committtee to inquire into and report to the State Government
on how far the provisions of the Maharashtra Land Revenue Code. 1%6 and
the relevant tenancy Jaws had been effective in giving protection to persons
belonging to Scheduled Tribes. The provisos to sections 3(1) and 4 are
c meant to mitigate the hardship which otherwise would be caused to a non·
tribal transferee who would again be rendered landless if he were required to
restore the entire land under sections 3(1) and 4 of the Act. [250B-D; GJ
7. (i) A person enrolled as an advocate under the Advocate's Act,
1961 is not ipso facto entitled to a right of audience in all Courts unless section
30 of the Advocates Act, 1961 is first brought into force. The right of an
D Advocate brought on the roHs to practice is, just what is confened on him by
sections 14(\)(a), (b) and (c) of the Bar Councils Act 1926. Section 9A is not
thererore an unconstitutional restriction on advocate's right to practice their
profession. (2510-H; 252AJ

(ii) Apart from the provisions of Art. 22(1) of the Constitution, by which
an accused who is arrested and detained in custody is entitled to consult and be
E defended by a legal practitioner of his choice, no litigant has a fundamental
right to be represented by a lawyer in any Court, In all other matters i.e. in
suits or other proceedings in which the accused is not arrested and detained
on a criminal charge, the litigant bas no fundamental right to be represented
by a legal practitioner . [252B-C]
(iii) The legislature felt that for implementation of the legislation. it
would not subserve the public interest if lawyers were allowed to appear plead
F
or act on behalf of the non-tribal transferees. A tribaJ and a non.tribal are
unequally placed and non·tribal transferee being a person belonging to the more
affluent class, would unnecessarily protract the proceeding'3. before the Collector
under sections 3(1) and 4 by raising all kinds of pleas calculated to delay or
defeat the right of the tribal for restoration of his lands. The proceedings be-
•
fore the Collector have to be completed with sufficient despatch and the trans·
G ferrcd lands restored to a tribal without any of the law's delays. [2520-EJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4384 of
1984.
From the Judgment and Order dated 27.6.84 of the Bombay
High Court in L.P.A No. 147 of 84 in W.P. No. 1624 of 1977.
AND
lJ Civil appeal No. 3288 of 1984.
U>. APPELWAR v. MA!IARAS!ITRA (Sen, J.) :229
(From the judgment & order dated 21.6.84 of the Bombay
High Court in L.P.A. No. 135 of 1984.) A
V.B. Joshi for the appellant in both the appeals.
V.S. Desai and M.N. Shroff for the respondents in both the
appeals.
' The Judgment of the Court was delivered by
B
• SEN, J. These two appeals by special leave are directed against
the judgments and orders of a Division Bench of the Nagpur Bench
of the Bombay High Court dated June 21 and 27, 1984 and raise a
common question relating to the constitutional validity of ss.3 and
4 of the Maharashtra Restoration of Lands to Scheduled Tribes
Act, 1974. The question is whether ss.3 and 4 of the impugned Act c
which provided for annulment of transfers made by members of
Scheduled Tribes and for restoration of lands to them on certain
conditions were ultra vircs the State Legislature as being beyond the
purview of Entry 18 of List II of the Seventh Schedule or were
otherwise violative of Art. 14, Art. 19(1)(f) and Art. 31 of the
Constitution. D

Facts in these two appeals are more or less similar. In Civil
Appeal No. 4384 of 1984, the appellant Lingappa Pochanna
Appelwar had by a registered ·sale-deed dated November 30, 1965
purchased agricultural land bearing Survey No. 27 having an area
of 20 acres 39 gunthas from Raju Meshram, father of respondent E
No. 2 Sonerao Raju Meyhram who being a gond was a tribal within
the meaning of s.2(l)(j) of the Act for a consideration of Rs. 1300
with the prior permission of the Collector as required by s.47 of the
Hyderabad Tenancy & Agricultural Lands Act, 1950 and was placed
in possession thereof. Suo motu proceedings were started by the
• F
Sub-Divisional Officer, Rajura in District Chandrapur under s.3(1)
of the Act for restoration of the lands to respondent No. 2. The
Sub-Divisional Officer initiated an inquiry, summoned the parties
and recorded their statements. By his order dated February 19,
• 1977 he held that it was admitted by the appellant that his transferor
Raju Meshram was a gond and therefore a tribal under s.2(1)(j) of G
the Act, that no improvements had been made by him on the land
and that there were no encumbrances thereon. He therefore held
that the case falls within s.3(1) of the Act and recorded that respon-
dent No. 2 Sonerao Raju Meshram, the tribal, had given an under-
taking in Form III that he required the land for his personal
cultivation and was willing to deposit the amount fixed by him for
H
230 SUPREME COURT REPORTS (1985] 2 S.C.R.

A payment to the appellant. He accordingly directed in exercise of
the powers vested in him under s.3(l)(ii) of the Act that possession
of an area of 19 acres 19 gunthas out of Survey No. 27 be taken
from the appellant and restored to respondent No. 2 on payment
of Rs. 46l.76p. towards the consideration equal to 48 times of the
assessment as required by s.3(4)(b) after setting apart a part ofthe
B remaining portion of 1 acre 20 gunthas covered by a dwelling house.
The appellant preferred an appeal under s.6 of the Act to the
Maharashtra Land Revenue Tribunal, Nagpur but a Single Member
of the Tribunal by his order dated August 5, 1977 upheld the order
passed by the Sub-Divisional Officer. The appellant than filed a writ
petition before the Nagpur Bench of the Bombay High Court assail-
0 ing the orders of the Maharashtra Land Revenue Tribunal as well •
as that of the Sub-Divisional Officer. A learned Single Judge by
his order dated March 13, 1984 dismissed the writ petition in /imine
and a Letters Patent Appeal preferred by the appellant was also
dismissed by a Division Bench by its order dated June 27, 1984.
Facts in Civil Appeal No. 3288 of 1984 are more or !es~ similar.
D We must here mention that the High Court in Sadashiv Ragho
Ko/ambe & Ors. v. State of Maharashtra & Anr. being Special Civil
Application No. 1064/76 decided on June 20, 1976 upheld the
constitutional validity of the Act and Civil Appeal No. 982/76 is
pending before this Court.

E The impugned Act is supplemental or incidental to the
Maharashtra Land Revenue Code, 1966 and the relevant tenancy
laws viz. the Bombay Tenancy & Agricultural Lands (Vidarbha
Region) Act, 1958 in relation to the Vidarbha region of the State,
the Hyderabad Tenancy & Agricultural Lands Act, 1950 in relation
to the Hyderabad region of the State and the Bombay Tenancy &
F Agricultural Lands Act, 1948 in relation to the rest of the State.
Similar measures have been undertaken by different States placing
restrictions on transfer of lands by members of Scheduled Castes
and Tribes for the implementation of the Directive Principles of
State& Policy enshrined in Art. 46 of the Constitution which enjoins
G that "the State shall promote with ~pecial care the educational and
economic interests of the weaker sections of the people and in
particnlar of the Scheduled Castes and Tribes and shall protect
them from social injustice and all fdrms of exploitation".

Although there is legislation undertaken by different States
I L.P. Ai>PEL\VAR v. MAHARASll)'RA (Sen J.) 231

• placing restrictions on transfer of lands by members of Scheduled
Castes and Tribes in pursuance of the declared policy of the State A
of safeguarding, protecting and improving the cnnditions or weaker
sections of the society by providing that any such transfer except in
terms of the provisions of the different Acts shall be null and void,
the State of Maharashtra has gone a step further for annulment of
such transfers by members of Scheduled Tribes and for restoration B
oflands to them by enacting the Maharashtra Restroration of Lands
to Scheduled Tribes Act, 1974. The impugned Act has been placed
in the Ninth Schedule of the Constitution and is thereof immune
under Art. 31B from any challenge on the ground that it is inconsi-
stent with, or takes away, or abridges any of the rights conferred
by Art. 14, Art 19 or Art. 31 of the Constitution. c
Before dealing with the contention raised, it would be conve-
• nient to deal with the legislative history. By a Government Resolu·
tion in the Revenue & Forest Department, the State Government
appointed a Committee to inquire into and report to the State
Government inter alia on how for the provisions of the Maharashtra
D
Land Revenue Code, 1966 and the relevant tenancy law had been
effective in giving protection to persons beloging to Scheduled
Tribes and to suggest among other things suitable amendments
therein if any of the existing provisions were found to be inadequate.
The said Committee by its Report to the Government dated April
7, 1972 drew the attention of the State Government to the difficulties E
experienced in the administration of the provision contained in
s 73 of the Bombay Land Revenue Code, 1897 (in Western
Maharashtra) and the analogous provisions in the Madhya Pradesh
Land Revenue Code, 1954 (in Vidarbha) and the Hyderabad Land
Revenue Act, 1317F (in Marathawadr) which are now replaced by
s.36 of the Maharashtra Land Revenue Code, 1966. Accor- F
ding to snb-s.(2) of s.36, occupancies of persons belonging to
such Scheduled Tribes as had been notified by Government,
and in the parts of the State notified by Government, could
not be transferred except with the previous sanction of the
Collector. The intention of the Legislature in making this provision
G
was that this weaker section of the community should not become
landless and that persons belonging to the affiuent and powerful
sections should not be allowed to take undue advantage of the
situation. However, inspite of this provision and provisions of the
earlier Land Revenue laws, those were not found sufficient and
persons belonging to the Scheduled Tribes because of their poverty,
lack of education and general backwardness had been exploited by
232 SUPREME CoURT REPORTS [19851 2 s.c.R..

A ~;rious persons· who could take advantage of the sad plight of these
poor persons depriving them of their lands~ The said Committee
accordingly recommended inter a/ia that provision should be made
for restoring to persons belonging to Scheduled Tribes the lands
which had been duly transferred to other persons. After considering
the aforesaid recommendation of the said Committee, the State
B Government were of the opinion that steps should be taken forth-
with for restoring certain lands to persons belonging to Scheduled
Tribes.

Broadly stated, such illegal transfers fell into two categories,
c namely : (!) Occupancy holdings had been transferred to persons
not belonging to Scheduled Tribes by the Collector or the Sub-
Divisional Officer on the ground that occupancy holdings were
allowed to be transferred to persons not belonging to Scheduled
Tribes. This was in clear violation of the provisions of s. 3 (2) of
the Maharashtra Land Revenue Code. (2) The lands were first
D allowed to be leased out to persons not belonging to Scheduled
Tribes by the Collector or the Sub-Divisional Officer on the ground
that members of the Scheduled Tribes holding such lands were
unable to cultivate them personally due to sickness or otherwise.
Later on, taking advantage of the provisions of the Bombay Tenancy
& Agricultural Lands Act, 1948, such transferees applied to the
E Tenancy Courts for purchase of the holdings on the ground that
they were in cultivating possession on April I, 1957 i.e. on "the
tillers' day" The Committee accordingly recommended that neces-
sary legislation be undertaken for restoration of lands to such
Scheduled Tribes which had been transferred whether by way of
f sale, gift, mortgage or any other disposition made or had gone into
the possession of members not belonging to Scheduled Tribes under
a decree or order of a Court on or after April l, 1957. It would
therefore appear from the Report that the provisions contained in
the relevant Land Revenue laws were not found sufficient to help the
members of the Scheduled Tribes whose ignorance and poverty had
G been exploited by persons belonging to the affluent and powerful
sections to obtain sales or mortgages either for a nominal considera-
tion or for no consideration at all and they had become the victims
of circumstances.

The Statement of Objects and Reasons accompanying the Bill
H is as follows :
t.P. APPELWAR v. MAHARASHTRA (Sen, J.) 2:l:l
"It was noticed that in a number of cases lands previous-
ly held by persons belonging to Scheduled Tribes have A
been transferred to non-Tribals as a result of purchases
made or deemed to have been made under the Tenancy
Laws or as a result of transfers (including exchanges)
validly effected after !st April, 1957 under the provisions

i
• of the Maharashtra Land Revenue Code, 1966 or other
B
laws in force in the State. After examining the recommen-
dation of the Committee appointed by Government to
examine the difficulties experienced by the Tribal land-
holders in the administration of certain provisions of the
Maharashtra Land Revenue Code and other laws in force

\
in the State it is considered necessary to provide for resto- c
ration of the lands which have gone into the hands of non-
Tribals to their original Tribal owners. The bill seeks to
achieve this object".

We have referred to the Statement of Objects and Reasons
and the Report of the Committee not as an aid to construction but D
for the limited purpose of ascertaining the conditions prevailing at
the time the Bill was introduced and the object sought to be
achieved .
• Various contentions were raised but before we deal with them, E
it is necessary to refer to certain provisions of the Act. S. 2 (1) of
the Act is the definition clause. The word 'transfer' in relation to
land is defined ins. 2 (I) (i) to mean the transfer of land belonging
to a tribal made in favour of a non-tribal during the period
commencing on the !st day of April 1957 and ending on the 6th day
of July 1974 either (a) by act of parties, whether by way of sale, F
gift, exchange, mortgage or lease or any other disposition made
inter-vivos, or (b) under a decree or order of a court, or (c) for
recovering any amount of land revenue due from such tribal, or for
recovering any other amount due from him as an arrear ofland
revenue, or otherwise under the Maharashtra Cooperative Societies
Act, 1960 or any other Jaw for the time being in force but does not G
include a transfer of land falling under the provisions of sub-s. (3)
of s. 36 of the Code and the terms 'tribal-transferor' and 'non-tribal
transferee' have to be construed accordingly. The word 'tribal' as
defined in s. 2 (1) (j) means a person belonging to a Scheduled
Tribe within the meaning of the Explanation to s. 36 of the Code
i. and includes his successors-in-interest. The expression 'relevant
234 StiPRRME COURT REPORTS (1985] 2 s.c.tt.
tenancy Jaw' is defined in s. 2 (l) (g) to mean (1) the Bombay
A
Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958, in
relation to the Vidarbha region of the State (2) the Hyderabad
Tenancy & Agricultural Lands Act, 1950, in relation to the
Hyderabad region of the State, and (3) the Bombay Tenancy &
Agricultural Lands Act, 1948, in relation to the rest of the State.
B
Sub-s. (I) of s. 3 of the Act provides as follow(:

"3. (J) Notwithstanding anything contained in any
other law for the time being in force or any judgment,
decree or order of any Court, Tribunal or authority, the
c Collector either suo mo tu at any time, or on the application
of a Tribal-transferor made within three years from the
commencement of this Act shall, after making such inquiry
as he thinks fit, direct that-

(i) the lands of the Tribal-transferor and non-Tribal-
D transferee so exchanged shall be restored to each
other ; and the Tribal-transferor, or as the case may
be, the non-Tribal-transferee shall pay the difference
in value of improvements as determined under cl. (a)
of sub-s. (4), or
E (ii) the land transferred otherwise than by exchange be
taken from the possession of the non-Tribal-transferee,
and restored to the Tribal-transferor, free from all
encumbrances, and the Tribal-transferor shall pay
such transferee and other persons claiming encumbran-
F ces the amount determined under cl. (b) of sub-s. (4).

Provided that, where land is transferred by a Ttibal-
transferor in favour of a non-Tribal-transferee before the
6th day of July 1974, after such transferee was rendered
landless by reason of acquisition of his land for a public
G purpose, then only half the land so transferred shall be
restored to the Tribal-transferor".

Sub-ss. (2) to (4) contain detailed provmons for thet erms
upon which the Collector shall make an order for restoration of
lands to tribals by their non-tribal transferees under cl. (i) or cl. (ii)
of sub-s. (1) of s. 3 of the Act. Although these provisions are not
"
H
i.P. APPELWAR v. MAHARASHTRA (Sen, J.) 235

really material for our purposes, we would briefly refer to A
them to show that the impugned Act makes detailed provisions
with a view to strike a balance between the mutual rights and obli-
gations of the parties upon the making of an order for restoration
l of such lands to members of Scheduled Tribes under cl. (i) or cl. (ii)
1 of sub·s. (I) of s. 3 and the conditions upon which it can be effected.
B
" Sub-s. (2) provides that where any land restored to a tribal under
cl. (i) of sub-s. (I) is burdened with encumbrances, then such
encumbrances shall be transferred therefrom and attached to the
lands restored to the non-tribal or the tribal, as the case may be.
Sub·s. (3) injoins that a tribal shall notwithstanding anything con-
tained in any Jaw for the time being in force in the State, be entitled
to restoration of lands under the section only if he undertakes to
c
cultivate the land personally and to pay such amount to the non-
tribal as the Collector may under sub-s. (4) determine. Sub-s. (4)
casts a duty on the Collector to determine in the prescribed manner
the value of the improvements, if any, where lands are restored under
cl. (i) or cl. (ii) of sub-s. (!), and the manner of its payment. D
Clauses (a) to (g) thereof contain detailed provisions as to the
manner of payment. By cl. (a) it is provided that where lands are
restored under cl. (i) of sub-s. (1) i. e. where the land of a tribal
exchanged with a non-tribal is restored to such tribal, if the value
of improvements made by a tribal is found to be more, the
difference shall be paid by the non-tribal to the tribal and E
vice versa. By cl. (b) it is next provided that where the land of a
tribal transferred to a non-tribal is restored to him, the amount

, payable by the tribal shall be an amount equal to 48 times the
assessment of the land or the amount of consideration paid by the

, non-tribal for acquisition of tbe land, whichever is Jess plus the
value of the improvements, if any, made by the non-tribal to be
determined by the Collector. Explanation to els. (a) and (b) lays
down that the Collector in determining the value of any improve-
F

ments under cl. (b) shall have regard to (i) the labour and capital
provided or spent on improvements, (ii) the present condition of
improvements, (iii) the extent to which the improvement is likely to
benefit the land during the period of 10 years next following the G
year in which such determination is made, and \iv) such other
factors as may be prescribed. CJ. (c) directs that the amount
representing the difference in the value of improvements as deter-
mined by the Collector under cl. (a) shall be payable either in a
lump sum or in such annual instalments not exceeding 12 (with H
236 SUPREME COUltT REl'ORTS [19851 2 s.c.:k.

A simple interest a 4! % per annum) as the Collector may determine.
Cl. (d) enjoins that where land in restored to a tribal under cl. (i)
of sub-s. (1) i. e. in case of restoration of the land exchanged, the
tribal shall pay to the non-tribal or other person claiming encum·
brances, the amount determined under sub-s. (4) either in lump sum
or in such annual instalments not exeeeding 12 (with simple interest
B at 4!3 per annum) as the Collector may determine. Cl. (e) provi·
des for apportionment of the amount determined under cl. (b)
\
among the transferee and the persons claiming encumbrances in the
manner provided therein. Cl. (f) provides that during any period
for which payment of rent is suspended or remitted under the
relevant tenancy law, the tribal or non-tribal shall not be bound to
c pay the amount in lump sum or the amount of any instalment fixed ,
under sub-s. (4) or interest thereon, if any. Cl. (g) is the exigibility
clause. If the tribal or the non-tribal, as the case may be, fails to '
pay the amount in lump sum or remains in arrears of two or more
instalments, the amount so remaining unpaid (with interest thereon
D at 4!% per annum) shall be recoverable by the Collector as arrears
of land revenue. The amount so recovered shall be paid by the
Collector to the non-tribal and persons claiming encumbrances, if
any, or as the case may be, the tribal.

S.4 of the Act is in these terms :

"4. Where any land of a Tribal is, at any time on or
after the !st day of April 1957 and before the 6th day of
July 1974, purchased or deemed to have been purchased or
acquired under or in accordance with the provisions of the
relevant tenancy law by a non-Tribal-transferee or where
F
any acquisition has been regularised on payment of penalty
under such law and such land is in possession of a non-
Tribal-transferee and has not been put to any non-agricul·
tural use on or before the 6th day of July 1974, then the
Collector shall, notwithstanding anything contained in any
G law for the time being in force, either suo motu at any time
or on an application by the Tribal made within three years
from the commencement of this Act and after making snch
inquiry as he thinks fit, direct that the land shall, subject to
the provisions ofsub-s. (4) ofs. 3, be restored to the Tribal
free from all encumbrances and that the amount of pur-
ff chase price of a proportionate part thereof, if any, paid by
L.P. APPELWAR v. MAHARA5HTllA (Sen, J.) 237

such non-tr bal-transferee in respect of such land in accor-
A
dance with the relevant tenancy law shall be refunded to
such non-Tribal-transferee either in lump sum or in such
annual instalments not exceeding twelve (with simple inte-
rest at 4t% per aunum) as the Collector may direct. The
provisions of clauses (d), (e), (f) aud (g) of sub-s. (4) of s. 3
shall, so far as may be, apply in relation to the recovery of B
the amount from the Tribal and payment thereof to the
non-Tribal-transferee and the persons claiming encumbran-
- ces, if any".

It also contains a proviso which is in terms identical with the
proviso to sub-s. (I) of s. 3 and also serves the same purpose.

Under the scheme of the Constitution, the Scheduled Tribes
as a class require special protection agaihst exploitation. The very
existence of Scheduled Tribes as a distinctive class and the preser-
vation of their culture and way of life based as it is upon agriculture
which is inextricable linked with ownership of land, requires D
preventing an invasion upon their lands. The impugned Act and
similar measures undertaken by different States placing restrictions
on transfer of lands by members of the Scheduled Castes and
Tribes are aimed at the State Policy enshrined in Art. 46 of the
Constitution which enjoins that "The State shall promote with
special care the educational and economic interests of the weaker E
sections of the people and in particular of the Scheduled Castes and
Tribes and shall protect them from social injustice and all forms of
exploitation". One has only to look at the artlessness, the total
lack of guill, the ignorance and the innocence, the helplessness,
the economic and the educational backwardness of the tribals pitted
against the artful, usurious, greedy land grabber and exploiter F
invading the tribal area from outside to realize the urgency of the
need for special protection for the tribals if they are to survive and
to enjoy the benefits of belonging to the 'Sovereign, Socialist,
Secular, Democratic Republic' which has vowed to secure to its
citizen 'justice, social, economic and political' 'assuring the dignity
of the individual'. The great importance which the Founding G
Fathers of the Constitution attached to the protection, advancement
and prevention of exploitation of tribal people may· be gathered
from the several provisions of the Constitution. Apart from Art. 14
Whlch, interpreted positively, must promote legislation to protect
and further the aspirations of t!Je weak and oppressed, including the
Q
238 SUPREME COURT REPORTS [1985) 2 S.C.R.

tribal, there are Arts. 15 (4) and 16 (4) which make special provi-
A
sion for reservation in Government posts and admissions to edu-
cational institutions. Even the Fundamental Rights guaranteed by
Art. 19 (I) (d) and (e), that is, the right to move freely throughout
the territory of India and the right to reside and settle in any part
of the territory of India are made expressly subject to reasonable
B restrictions for the protection of the interests of any Scheduled
Tribe. The proviso to Art. 275 specially provides for the payment
out of the Consolidated Fund of India as grants-in-aid of the
revenues of a State such capital and recurring sums as may be
necessary to meet the cost of development schemes for the promo-
tion of the welfare of the Scheduled Tribes in the State. Art. 330
c provides for reservation in the House of the people for the
Scheduled Tribes. Art. 332 provides for the reservation of seat for
the Scheduled Tribes in the Legislative Assemblies of the States. +-
Art. 335 specially directs that the claims of the members of the
Scheduled Castes and the Scheduled Tribes shall be taken into
D consideration, consistently with the maintenance of efficiency of
administration, in the making of appointments to services and posts
in connection with the affairs of the Union or of the State. Art.

-
343 (2) empowers the President to specify the tribes or tribal
communities or parts of them which shall be deemed to be Sche-
duled Tribes for the purpose of the Constitution. Arts. 244 and
E 244A of the Cons titu ti on make special provision for the adminis-
tration and control of the scheduled areas and the scheduled tribes
in any State by the application of the Fifth and the Sixth Schedules.
Paragraph 3 of the Fifth Schedule particularly enjoins the Governor
of each State having scheduled areas to report to the President
annually or whenever so required, regarding the administration of
F the scheduled area in that State, and the executive power of the
Union is extended by that paragraph to giving directions to the
State as to the administration of the said area. Paragraph 5 (2)
empowers the Governor to make regulations for the peace and good
Government of any area in any State which is for the time being a
scheduled area and, in particular, and without prejudice to the
G
generality of the foregoing power, such regulations may-( a) prohibit
or restrict the transfer of land by or among members of the
Scheduled Tribes in such area : (b) regulate the allotment of land to
members of Scheduled Tribes in such areas ; and {c) regulate the
carrying on of business as money-lender by persons who lend
money to members of the Scheduled Tribes in such area. Mention
"
L.V. APPELWAR v. MAHARASHTRA (Sen, J.) 239

has already been made of Art. 46 of the Directive Principle which
A
specially enjoins the State to protect the Scheduled Castes and
Tribes from all social injustice and from all forms of exploitation.
All these provisions emphasize the particular care and duty required
of all the organs of the State to take positive and stern measures
for the survival, the protection and the preservation of the integrity
and the dignity of the tribals. B

The problem of how far and to what extent the law of contract
should be used as an instrument of distributive justice has been
engaging the attention not only of the Legislatures and the Courts
but also of scholars. Kronman(1) in his thoughtful article 'Contract
Law and Distributive Justice, observes : c
"If one believes it is morally acceptable for the State
to forcibly redistribute wealth from one group to another,
the only question that remains is how far the redistribution
should be accomplished''.
D
According to learned author, this could be achieved not only
by taxation but also by regulatory control of private transactions.
He accepts that distributive fairness can only be achieved by taxa-
tion or contractual regulation, at some sacrifice in individual
liberty.
E
The present legislation is a typical illustration of the concept
of distributive justice, as modern jurisprudents know it. Legis-
lators, Judges and administrators are now familiar with the concept
of distributive justice. Our Constitution permits and even directs
the State to administer what may be termed 'distributive justice'.
F
The concept of distributive justice in the sphere of law-making
connotes, inter alia, the removal of economic inequalities and recti-
fying the injustice resulting from dealings or transaction between
unequals in society. Law should be used as an instruments of
distributive justice to achieve a fair division of wealth among the
members of society based upon the principle : 'From each according G
to his capacity, to each according to his needs'. Distributive justice
comprehends more than achieving lessening of inequalities by
differential taxation, giving debt relief or distribution of property
owned by on to many who have none by imposing ceiling on ho!-

I. Yale Law Journal 1979-80, Vol. 89, p. 472.
ff
240 SUPREME COURT REPORTS (1985] 2 S.G.R.

dings, both agricultural and urban, or by direct regulation of
A
contractual transactions by forbidding certain transactions and,
perhaps, by requiring others. It also means that those who have
been deprived of their properties by unconscionable bargains should
be restored their property. All such laws may take the form of
forced redistribution of wealth as a means of achieving a fair
B ·division of material resources among the members of society or
there may be legislative control of unfair agreements.

In the past forty years, most of the tribal societies have come
under attack by economically more advanced and politicaUy more
powerful ethnic groups, who infilt-rated into tribal regions in
c search of lands and new economic possibilities. These population
movements triggered a struggle for land in which the aboriginal •
tribesmen were usually losers, and deprived of their anoestral
lands, turned into impoverished landless labourers. In order to
meet the situation various forms of legislations have been brought
in to save the tribals from extinction and prevent their enslavement
0 and degradation as destitutes. Much pioneering work has been
done in the field of study_ of the Tribes and Tribals*. It is beyond
the scope of this judgment to deal in depth with the sad plight of the
Tribals or the insuperable problems facing them and the various
measures adopted to prevent their extinction. One has only to read
Professor Christoph von Furer·Heinmendorf's "Tribes of India-the
E struggle for survival" to understand the enormity of the social
crimes that the non-tribals have been committing against the tribals.
As the learned author rightly points out :

"It is inherent in any plan for the protection and
F support of the tribal minorities that whatever benefits are
envisaged for tribesmen must adversely affect the interests
of some more advanced sections of the population. Aliena-
tion of tribal land cannot be prevented without depriving
non-tribal landowners of the chance to enlarge their hol- ..
dings, a curb on exploitation by moneylenders interferes
G with the activities of local businessmen, and any attempt
to eradicate corrupt practices of minor officials diminishes

•Elwin Verrir: The Religion of an Indian Tribe (Bombay, 19>5)
Russell, R. V. The Tribes and Castes of the Central Provinces of India
(London, 1916)
Grigson. Sir Wilfrid : The Maria Gonds of Bastar (London, 1949)
H
L.V. APPELWAR v. MAHARASHTRA (Sen, J.) 241

the income from dealings with ignorant and illiterate A
tribals. Thus any policy of tribal rehabilitation arouses
the opposition of vested interests",

The impugned Act is nothing but a remedial measure in
keeping with the policy of the State for rendering social and econo-
B
mic jnstice to .this weaker section of the society. The taking of
their lands may have been done by way of transfer under the
ordinary laws in various ways. The processes and forms of law
were apparently followed. But the result has been devastating. As
a result of such unequal transactions which were grossly unconscio-
'
I nable and unjust, the tribals lost their lands to non-tribals and c
were rendered landless. It is implicit in the nature of the legisla·
tion that the law regards such transactions as unconscionable and
oppressive, and directs restoration of the property to the tribal-
transferor treating the transfer to be non-est. It is axiomatic that a
contract is liable to be set aside due to inequality of bargaining
power, if someone without independent advice, enters into a con· D
tract on terms which are very unfair or transfers property for a
consideration which grossly inadequate when his bargaining power
is grievously impaired by reason of his own need or circumstances,
or by his own ignorance or infirmity, coupled with undue influences
or pressures brought to bear on him by or for the benefit of the
other. E

B. Bandyopadhyaya, Joint Secretary, Ministry of Labour,
Government of India, and B. N. Yugandhar, Special Assistant to
• the Deputy Chairman, Planning Commission in their Report
submitted to the Government in 1975 brought out the reasons for
the justified sense of grievance feit by so many tribal populatio~s in F
these words :

"The Girijans came in touch with the administration
only in a state of confrontation ~hen they were tackled for
inf~ing~ment or in'.raction of one or the other regulation
G
which m fact abndged, annulled or tinkered with their
custom~ry [rights and privileges. Thus the Girijans of the
Parvath1puram agency tract found themselves totall
alienated fro~ th~ a~mi~istrative machinery and newly s[i
up self-governmg ms!Ituhons and were denied oprortunities
of gainful economic activities. They Suffered not only Q
242 SUPREME COURT REPORTS [1985) 2 S.C.R.

from poverty but also from a deep of insecurity. They found
A
themselves deprived at each point and at each front. A deep
sense of grievance and injustice enveloped the entire tribal
population through decades of neglect by the local administra
tion. ~

(Emphasis supplied)
.,..
B J
The le¥islation is based on the principle of distributive
justice. The impugned Act is intended and meant as an instrument
for alleviating oppression, redressing bargaining imbalance, cancel·
ling unfair advantages, and generally overseeing and ensuring probity
and fair dealing. It seeks to reopen transactions between parties ,.
having unequal bargaining power resulting in transfer of title from
one to another due to force of circumstances and also seeks to
restitute the parties to their original position. Quite recently, this
Court in Manchegowde & Ors v. State of Karnataka & Ors.(1) upheld
the constitutional validity of the Karnataka Scheduled Castes and
Scheduled Tribes (Prohibition of Transfer Certain Lands) Act, 1973.
D It provided for restoration of lands transferred by members of
Scheduled Castes and Tribes where the grant of land was attached
with a condition regarding prohibition of transfer of the granted
lands. It repelled the contention that ss.4 and 5 of the Act which
provided for avoidance of transfers were violative of Art. 14, Art. 19
E (!) (f) and Art. 31 of the Constitution and observed that any transfer
of such lands in violation of the prohibition conferred on the
transferee only a defeasible title and therefore the provisions could
not be held to be arbitrary, illegal and void.
I
Instances of legislations undertaken for distributive justice
F are not unknown. In Fateh Chand Himmatlal v. State of
Maharashtra(') the challenge was to the provisions of the Maharashtra
Debt Relief Act, 1976. That Act did not prohibit the business of
moneylending but it wiped out all debts due to moneylenders upto
a certain date and obliged them to return to the debtors the
securities obtained as a security for tljeir debts. The Court held that
G the moneylending was not a trade or business, but if it was, the Act
imnosed reasonoble restrictions on the business of myneylonding
with in the meaning of Art. 304 (b). The evil of moneylending was
not confined to isolated cases but was widespread as it affected a

(I) [1984) 3 s.c.c. 301.
H (2) [1977) 2 S.C.R. 828.
L.P. APPELWAR v. MAHARASHTRA (Sen, J.) 243
very large number of agricultural and rural debtors. Considerable
material was placed before the High Court and this Court held A
that the material so placed showed that money lending can be looked
upon as a pernicious activity. The material disclosed that
previous legislative attempts to grant relief to the debtors had failed,
either because resolute attempts were not made to enforce the law,
or because of the illiteracy, ignorance and above all the need of the B
borrowers or because of the dishonesty of the moneylenders or by a
combination of all these factors. The question before the Court
therefore was whether in view of all this evidence and the failure
of the earlier hws to give relief to borrowers, could a Legislature,
without violating any constitutional limitations, wipe out all debts
and restore the security given for the debts to the borrowers. c
In Pathumma v. State of Kera/a(') s.20 of the Kerala
Agriculturists' Debt Relief Act, 1970 was challenged, first for lack
of legislative competence, secondly as ·violative of Art. 19 (1) (f)
and thirdly as violative of Art. 14. The Court by two separate
judgments reiterated the view expressed in Fateh Chana Himmatlal's D
case, supra. S.20 of the Act provided'for restoration of property
of agriculturists sold in execution of decrees on repayment of
purchase price in the manner specified therein. It made a distinction
between a decreeholder who had become the purchaser of the
property of an agriculturist sold iu execution of a mortgage decree,
and a stranger who purchased such property by Court sale. Again, E
s.20 distinguished between a stranger auction-purchaser and a bona
fide alience who purchased such property from the auction-purchaser
before the date of the publication of the Act. The Court held that
the classification of the creditors was founded on an intelligible
' differentia that there was a reasonable nexus between the basis of
classification and the object sought to be achieved and therefore F
the Act was not violative of Art. 14. Nor. was provision contained
in s.20 for restoration of property to agricultural debtors an
unreasonable restriction within Art. 19 (5). As regards legislative
competence the concurring judgment held that the Act was clearly

. relatable to Entry 30 in List II, namely, 'moneylending and
moneylenders: relief of indebtedness. It was argued that s.20 of
G
the Act gave relief when by sale of property the debt had ceased to
exist. It was held that there was no reason why relief from indebted-
ness should be limited to subsisting indebtedness and could not cover

(I) p978J 2 S.C.R. S37. H
244 SUPREME COURT REPORTS [1985) 2 S.C. R.

A the necessity of providing relief to agriculturists who had lost their
immovable property by court's sales in execution ofMecrees against
them and who had been rendered destitute. Whatjis of significance
is .that the Court in Pathumna's case having regard to)he legislative
history in the State of the relief from 'agricultural indebtedness and
the sad plight of agriculturists who had ,been rendered destitute
B upheld the validity of s.20 of the Act which provided for restoration
r
)
of their immovable property sold in execution of any decree for
recovery ·of a debt or sold under the provisions of the Revenue
Recovery Act or sold in execution of any decree for arrears of rent
etc. The Act did not deprive the purchaser of the property without
payment of compensation but on the contrary it enjoined that the
c purchase money shall be refunded to him In the case where the
I

decreeholder was the purchaser, the debtor was allowed to deposit
one-half of the purchase money along with the application to the
Court for restoration of possession and to repay the balance amount
in 10 equal half-yearly instalments, together with interest thereon.
D As regards a stranger auction-purchaser the Court observed that he
stood mere or less in the same position as the decreeholder cannot
be heard to complain since he purchased the property as a distress
sale and was therefore bound to restore the same to the agriculturist
debtor. The law however treated him differently because he had
nothing to do with the decree and was therefore enjoined to return
E the property to the agriculturist debtor on payment of the entire
amount in lump sum. Further, where improvements had been
effected on the ..property, the debtor was required to deposit the
cost of such improvements for payment to the purchaser. It is not
necessary to encumber the judgment with many citations.

F •
The constitutional validity of the impugned Act has been
challenged on several grounds, namely : (I) The provisions
contained in ss.3(1) and 4 of the Act which provide for annulment
of transfers of lands by tribals to non-tribals effected during the
period specified therein and for restoration of possession to
G them is beyond the legislative competence of the State under
Entry 18 in List II of the Seventh Schedule. (2) The adoption of
the date April 1,1957 as the date from which there is annulment of
transfers under ss.3 (1) and 4 is arbitrary and void as contravening
Art. 14, as there is no reasonable nexus for the fixation of such date
and the object sought to be achieved by the legislation. (3) The
H
t.P. APPEL WAR v. MAHARASHTRA (Sen, I.) 245
impugned Act is also violative of Art. 14 as it treats equals
unequally since there is preferential treatment given to members of
Scheduled Tribes as against those of Scheduled Castes who also
constitute the weaker section of the society without any rational
basis. (4) The provisions contained in ss.3 (1) and 4 are void
under Art. 13 (2) as they offend the principle of equality which is B
the basic structure of the Constitution, for a distinction is made
between a non-tribal transferee who had diverted the lands obtained
by him under a transfer from a tribal during the period from April
1,1957 and July _6, 1974 and put such lands to non-agricultural
purposes, and other non-tribal transferees who also got into
possession of the lands belonging to tribals under transfers effected 0
during the same period but continued to use the lands for agricul-
tural purposes, and such differential treatment is without any
reasonable classification and thus offends against Art. 14 (5). The
definition of non-tribal transferee contained in s.2 (I) (I) also suffers
from the same vice as it allows transfers effected prior to March 15,
1971 to assignees of non tribal transfrees to escape the consequence D
of annulment under ss.3 (1) and 4 for which there is no lawful
justification and thus the Act is in flagrant violation of the equality
clause contai.ned in.Art. 14. And (6) s.9A of the Act amounts to an
unreasbnable restriction on the right to acquire, hold and dispose
of. property guaranteed under Art. 19 (I) (f) as there is denial of
opportunity to the non-tribal transferees to be represented by a E
lawyer of their choice in proceedings initiated by the Collector
suo motu or on an application by the tribal under s. 3 (1) or
s. 4 of the Act. We are afraid, none of these contentions can
prevail .
•
1'he first and foremost contention is that the provisions contained
in ss. 3(1) and 4 of the Act which provide for annulment of transfer
of lands by tribals to non-tribals effected during the period specified
therein and for restoration of possession of such lands to them are
beyond the legislative competence of the State Legislature under
Entry 18 in List II ofthe Seventh Schedule. It is urged that the
G
State has no competence to make a law under Entry 18 in List II
which had the effect to unsettle the titles which had vested validly
in the non-tribal transferees either by transfer inter-vivos or by the
decree or order of a Court. It is contended that there is no Legis-
lative competence of the State Legislature to enact a law of this
kind which purports to direct 'A' to transfer the lands to 'B' for
H
246 sUPRBME COUl!.T REPORTS [1985] 2 s.c.R..

A. the only reason that he got the lands by transfer from B and B
happens to be a tribal. It is urged that there is no provision
anywhere i.n the Constitution under which such a law could be
enacted since the nexus of the impugned Act is not so much the
land but the tribal. The submission is that without acquisition of
the lands by the State from the non-tribal transferees the lands
B could not be restored to the tribals by mere annulment of transfers.
We are unable to accept this line of argument.

The submission as regards lack of legislative competence of
the State to enact the impugned Act stems on a misconception of
nature and content of the legislative power of the State under Entry
c 18 in List II which reads : r

"18. Land, that is to say, rights in or over land, land
tenures including the relation of landlord and tenant, and
. the collection of rents ; transfer and alienation of agri-
cultural land ; land improvement and agricultural loans ;
D colonization."

·· The contention advanced fails to take note that the impug-
ned Act strikes at transactions relating to agricultural lands
effected between members of Scheduled Tribes who admittedly
E belong to the weaker section of the society and persons not be-
longing to Schednled Tribes. Experience in the past showed that
members of the Scheduled Tribes had been exploited due to their
ignorance and poverty by members belonging to the affluent and
powerful sections of the society· to obtain transfer of their lands by
way of sale, gift, mortgage, exchange etc. for a nominal consi-
F deration or for no consideration at all rendering them practically •
landless. It was also realized that due to .their multifarious duties
the Sub-Divisional Officers and the Collectors had accorded sanc-
tion to such transfers without application of mind to the prevalent
circumstances. It was further felt that ihe members of Schuduled
Tribes had become victims of circumstances by reason of their
G lands being sold for· realization of arrears of land revenue or
otherwise under the Maharashtra Cooperative Societies Act, 1960
or any other law for the time being in force. Much of the lands
had been transferred by members of Scheduled Tribes under
compulsion due to their indebtedness and their lands had passed
into the hands of creditors landing money at an unusually high rate
H of interest and were thus in a position to dominate the will of the
t.t>. APPELWAR v, MAHARASHTRA (Sen; j·) 241
borrowers. The Committee appointed by the State Government
A
pointed out in its Report that the provisions of the Maharashtra
Land Revenue Code, 1966 and the relevant tenancy laws had not
been effective in giving protection to persons belonging to the
Scheduled Tribes. It recommended inter alia that provision should
be made for restoring possession to members of Scheduled Tribes
the lands which had been duly transferred by them to other ll
persons. There is always a presumption when there is a transfer
between a tribal and a non-tribal that it is an unequal
bargain. As regards the weak and the helpless, the law guards
them with a special protective care. The Legislature therefore -
stepped in and reopened such transactions by directing that lands be c
restored to the tribal-transferors free from all encumbrances rtibals
on payment by them to the non-tribal transferees the amounts deter-
mined by the Collector under sub-s. (4) of s. 3 The restoration of the
possession under ss. 3 (I) and 4 does not involve any deprivation
of the property in the sense that there is unsettling of title without
consideration. It makes detailed provisions setting out the con- 0
ditions subject to which a transfer of agricultural lands by a tribal
to a non-tribal may be nullified and possession restored. It also
provides for the legal consequences that must ensue upon resto-
ration of such possession like repayment of the consideration by
the tribal-transferor to the non-tribal transfree together with his,
liability to pay for the costs of improvements, if any, effected. E
The transferor has in addition to give an undertaking that he needs
the lands for his personal cultivation, It further prescribes the
mode of payment of the amount so determined. In substance the
object of the legislation is restitution of the property to the persons
• to whom the lands originally belonged, subject to the adjustment F
of equities between the parties.

The impugned Act in its true nature and charater is a law
relating to transfers and alienations of agricultural lands by
members of Scheduled Tribes in the State to persons not belong-
ing to Scheduled Tribes. Such a law does not fall within Entries G
6 and 7 in List III but is within Entry 18 in List II. We may here
set out Entries 6 and 7 in List III :

"6. Transfer of property other than agricultural
land ; registration of deeds and documents.''
H
SuPREMI! COUkT REPOkTS (1985J 2 S.C.R.

"7. Co~tracts, including partnership, agency, con-
A
tracts of carriage, and other special forms of contracts, but
not including contracts relating to agricultural lands."

The words 'other than agricultural land' in Entry 6 and the
words 'but not including contracts relating to agricultural land' in
B
Entry 7 in List III have the effect of delimiting the legislative
power of the Union to make a law with respect to transfers and '
alienations of agricultural lands or with respect to contracts in
relation thereto. The power to legislate cannot be denied to the
c State on the ground that the provisions of ss. 3 (I) and 4 of the
Act incidentally trench upon the existing law, namely, the Trans-
fer. of Property Act, 1882 and the Contract Act 1872 or a Jaw made
by Parliament namely the Specific Relief Act, 1963. The power
of the State Legislature to make a law with respect to transfer and
alienation of agricultural land under Entry 18 in List II carries
D with it not only a power to make a law placing restrictions on
transfers and alienations of such lands including a prohibition
thereof, but also the power to make a law to reopen such transfers
and alienations. Such a law was clearly within the legislative
competence of the State Legislature being relatable to Entry 18 in
List II of the Seventh Schedule.
I
The remaining contentions are of little or no avail to the
appellants. The impugned Act having been placed in the ninth
Schedule of the Constitution, the submission that the provisions of
ss. 3 (1) and 4 thereof are inconsistent with, or take away, or
p abridge any of the fundamental rights conferred by Art. 14, Art.
19 (I) (f) or Art. 31 of the Constitution, must be rejected at the
very threshold because it is protected from any such challenge •
under Art. 31 B.

Even otherwise, the remammg contentions cannot prevail.
G The contention that the adoption of the date April 1, 1957 as the date
from which there is annulment of transfers under ss. 3 (!) and 4
was arbitrary and void as infring Art. 14, appears to be wholly
misconceived. The adoption of the date April I, 1957 in the de-
finition of the term 'transfer' in s. 2 (I) (i) as the date for the pro-
visions of ss. 3 (I) and 4 of the Act to operate is based on an
,,,. intelligible or rational classification. It is permissible for the
Legislature to make a classification on the basis of time for a law
B to operate. What is necessary is that there must be a reasonable
t.:il. APPELWAR v. MAHAl!.ASHtRA (,/;Jen, J.) 249
nexus between the basis of classification as to time and the object A
sought to be achieved. The Act adopts April 1, 1957 for nulli-
fication of transfers made by tribals to non-tribals under ss. 3 (I)
and 4 because that was the 'tillers' day' for purposes of the Bombay
Tenancy & Agricultural Lands Act, 1948 on the basis of which the
' non-tribal transferees could apply to the Tenancy Courts for pur-
chase of their holdings on the ground that they were in cultivating E
possession thereof. There was therefore reasonable nexus for the
fixation of such date and the object sought to be achieved and the
impugned Act if not violative of Art. 14.

1 The next contention is that the impunged Act offends against c
Art. 14 of the Constitution because it treats equals unequally in
•
that (I) members of Scheduled Castes who also constitute the
weaker section of the society have been discriminated against, an<l
(2) there is preferential treatment afforded to non-tribal transferees
who had diverted the lands purchased by them to non-agricultural
purposes and other non-tribal transferees who continued to use the D
same for agricultural purposes without any rational basis. Both the
submissions are devoid of substance. In the first place, the
appellants who are transferees from members of Scheduled Tribes
cannot possibly plead the cause of members of Schedhled C~stes.
That apart, members of Scheduled Tribes i.e. tribes who are
mostly aboriginals constitute a distinct class who need the special E
protection of the State. Further, the question as to how far and by
what stage such laws are to be implemented involves a matter of
policy and therefore beyond the domain of the Courts. Secondly,
the Act no dobut makes a distinction between a non-tribal transferee
• who had diverted the lands obtained by him under transfer from a
II
tribal during the period from April I, 1957 to July 6, 1974 and had
put such lands to non-agricultural purposes, and other non-tribal
transferees wbo got into possession under transfers effected by
tribals during the same period but continued to use the lands for
agricultural purposes. There is no question of any differential
treatment between two classes of persons equally situate. When G
a part of the land is diverted to a non-agricultural purpose viz. the
construction of a dwelling house or the setting up of an industry,
the State Legislature obviously could not have made a law for
•• annulment of transfer of such lands by tribals under Entry 18 in
List II as the lands having been diverted to agricultural purpose
ceased to be agricultural lands. In the case of such non-agricultural ff
250 Si:IPl!.EMB COURT REPORTS tl985] 2 s.c.ll..

A Land, if the State Legislature made such law it would not be l
effective unless it was reserved for the assent of the President and
received such assent.

Equally futile is the argument that the definition of 'non-tribal
transferee' contained in s.2(1)(1) offends against Art.14 as it permits
B an assignee of a non-tribal tranferee effected prior to March 15,
1971 to escape the conseqnence of annulment under s.3(1) or s.4 of
the Act. The definition of non-tribal transferee' in s.2(1)(1) is an
inclusive one. the expression non-tribal transferee' as defined
includes his successore-in-i terest; and if he or his successor had,
on or after March 15, 1971, transferred land in favour of any
c person whether a tribal or a non-tribal, comes within the ,
p 1rview of the definition. The Legislature appointed March 15,
1971 with a view to give retrospective effect to the provisions
of ss.3(1) and 4 of the Act as that was the ,date on which the
Government constituted the Committee to inquire into and report
to the State Government 011 how for ·the provisions of the
D
Maharashtra Land Revenne Code, 1966 and the relevant tenancy
laws had been effective in giving protection to persons belonging to
Scheduled Tribes. But it is not correct to say that the definition of
'non-tribal transferee' contained in s.2(1)(1) permits an assignee of
non-tribal transferee effected prior to that date i.e. March 15, 1971
E to escape the consequences of annulment under ss.3(1) and 4 of the
Act. Such a construction of the definition of the expression 'non-
iribal transferee' under s.2(1 ()I) would run counter to the scheme
of the Act.

As regards the two provisos to ss.3(1) and 4 of the Act which
F
are identical in terms, they are meant to operate in a case where
a non-tribal transferee bad acquired the land from a tribal by a
transfer during the period in question after his own land had been
acquired for a public purpose. In such a case, only one-half of
the land so transferred shall be restored to the tribal-traosferor
G while the non-tribal transferee is allowed to retain the compensation
amount for the land acquired. These provisos are meant to mitigate
the hardship which otherwise would be caused to a non-tribal
transferee who would again be rendered landless if he were

H
required to restore the entire land under s.3(1) or s.4 of the Act.

The next and the last question that arises is whether s.9A of
·-
t.P. Ai'PELWAil. v. MAHARASHTRA (Sen, /.) 25i
the Act is constitutionally void as it affects (i) the fundamental A
right of an advocate enrolled by the State Bar Council of
Maharashtra to carry on his profession guaranted by Art. 19(1)(g)
of the Constitution and (ii) the right of the appellants who are non-
tribals being prevented to be represented by a legal practitioner
of their choice.
B
The problem before us has to be viewed from two angles:
' first, from the viewpoint of the legal practitioner, and secondly
from that of the litigants. Though the question for consideration
as to whether s.9A of the Act offends Art.19(l)(g) is of considerable
importance to the litigant public in general, and the legal profes-
sion in particular, it is no longer res integra, it being practically c
concluded by several decisions of the various High Courts, from
,, both the view points noted above. S.9A of the Act reads :

"9A. Notwithstanding anything contained in this Act or
any' law for the time being in force, no pleader shall be
entitled to appear on behalf of any party in any proceed- D
ings under this Act before the Collector, the Commissioner
or the Maharashtra Revenue Tribunal :

Provided that, where a party is a minor or lunatic,
bis guardian may appear, and in the case of any other
person under disability, his authorised agent may appear, E
in such proceedings."

The contention that an advocate enrolled under the Advocates
Act, 1961 has an absolute right to practise before all Courts and
• Tribunals can hardly be accepted. Such a right is no doubt con-
F
ferred by s.30 of the Advocates Act. But unfortunately for the
legal profession, s.30 has not been brought into force so far though
the Act bas been on the Statute Book for the last 22 years. There
is very little that we can do in the matter and it is for the Bar to
take it up elsewhere. A person enrolled as an advocate under the
Advocate Act is not ipso facto entitled to. a right of audience in all G
Courts unless s.30 of that Act is first brought into force. That
is a matter which is still regulated by different statutes and the
extent of the right to practise must depend on the terms of those
statutes. The right of an advocate brought on the rolls to
practise is, therefore, just what is conferred on him by s.14(1)(a),
(b) and (c) the Bar Councils Act, 1926. ff
252 SUPREM'E COURT RBPORtS tt985] :i s.c.R.
In view of the settled law on the subject, we cannot but held
A
that s.9A of the Act is not an unconstitutional restriction on
advocates to practise their profession.

That brings us to the second aspect of the matter i.e. the so-
called right of a litigant to be represented before the Collector in
matters not covered by ss.3(1) and 4 of the Act. Now it is well-
B
settled that apart from the provisions of Art.22(1) of the Constitu·
tion, no litigant has a fundamental right to be represented by a
lawyer in any Court. The only fundamental rights recognized by
the Constitution is that under Art.22(1) by which an accused who
is arrested and detained in custody is entitled to consult and be
c defended by a legal practitioner of his choice. In all other matters
i.e. in suits or other proceedings in which the accused is not arrested
and detained on a criminal charge, the litigant has no fundamental
right to be represented by a legal practitioner. For aught we know
the legislature felt that for the implementation of the legislation, it
would not subserve the public interest if lawyers were allowed to
D appear, plead or act on behalf of the non-tribal transferees. It
· cannot be denied that a tribal and a non-tribal are unequally
placed and non-tribal transferee being a perion belonging to the
more affluent class, would unnecessarily protract the proceedings
before the Collector under ss.3(1) and 4 of the Act by raising all
kinds of pleas calculated to delay or defeat the rights of the tribal
E
for restoration of his lands. The proceedings before the Collector
have to be completed with sufficient despatch and the transferred
lands restored to a tribal under sub-s.(1) of s.3 and s.4 of the Act
without any of the law's delays.

F In the result, the appeals must fail and are dismissed with •
costs.
•

N.V.K. Appeal dismissed.