Holding

The 1970 amendment to the Andhra Pradesh Scheduled Areas Land Transfer Regulation is constitutionally valid and does not violate Article 19(1)(f) or any other provision of the Constitution.

Summary

The appellants, non‑tribal owners of immovable property in Andhra Pradesh's scheduled areas, challenged the 1970 Amendment to the Andhra Pradesh Scheduled Areas Land Transfer Regulation which prohibited any transfer of such property by non‑tribals to non‑tribals and required all transfers to be in favour of tribals. They argued that the provision violated Article 19(1)(f) of the Constitution (right to transfer property) and was unreasonable, also contending that the term "land" should not include structures. The Supreme Court held that the regulation was a valid exercise of the power under the Fifth Schedule, that the restriction was reasonable for the protection and restoration of tribal lands, and that "land" in the constitutional sense is comprehensive, covering structures. The Court further noted that the 44th Amendment had repealed Article 19(1)(f), rendering the challenge untenable, and upheld the presumption clause and mortgage provision. Consequently, the appeals were dismissed.

Issues considered

The constitutionality of the 1970 amendment prohibiting non‑tribal to non‑tribal transfers of immovable property in scheduled areas under Article 19(1)(f).
Whether the restriction is unreasonable and violative of the right to transfer property.
The interpretation of the term "land" in paragraph 5(2)(a) of the Fifth Schedule – whether it includes structures.
The validity of the presumption that possession by a non‑tribal implies acquisition from a tribal.

Legislation cited

44th Constitutional Amendment Act, 1978
Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961s. Section 10
Andhra Pradesh Cooperative Societies Act, 1964
Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation, 1970 (Regulation I of 1970)s. Section 3(1)(a), s. Section 3(1)(b), s. Section 3(1)(c)
Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (Regulation I of 1959)s. Section 3(1)
Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1971 (Regulation I of 1971)s. Section 3A(1)
Constitution of Indias. Article 15(4), s. Article 19(1)(f), s. Article 46, s. Fifth Schedule paragraph 5(2)(a)
Indian Evidence Act, 1872s. Section 106

Subjects

Scheduled AreasLand Transfer RegulationTribal protectionArticle 19Reasonableness testLand definitionNon‑tribal property rightsConstitutionality

Judgment

P. RAMI REDDY & ORS. ETC. A
v.
STATE OF ANDHRA PRADESH & ANR. ETC.

JULY 14, 1988

IM.P. THAKKAR AND B.C. RAY, JJ,I B

Andhra. Pradesh Scheduled Areas Land Transfer Reg!'(ation,
1959 (Regulation I of 1959) made by the Gowrn.or !'nder p~ra 5,(£/ ()f
fifth Schedule
. - - '
t() the Constitution. of lndi~-Sec.3(.1!,~As.
' --
s~bstituted b):
Andhra Pradesh Scheduled Areas L~nd Transfer (A,inendm~nt) R.~g!'-·
lation, 1970 (Regulation I of 1970)-Interpretation of-Sec. 3(1) in so
far as it prohibits transfer of immovable property situated in scheduled
c
areas by a 'non-tribal' to another 'non-triba/'-Whether constitutionally
invalid being violative of Article 19(1)(f) as it obtained at the relevant
time till its repeal by the Constitution (Forty-fourth Amendment) in
1979-Held Constitutionally valid.
D'
Constitution of India-Fifth Schedule-Paragraph 5(2)(a)-
Expression "Land"-Scope of-Whether used in narrow sense--
Held-Expression land is comprehensive-Wide enough to include
structures raised thereon.

Section 3( 1) of the Andhra Pradesh Scheduled Areas Land Trans- E
fer Regulation 1959 (Regulation I of 1959) prohibited transfer of
immovable properties situated in the scheduled areas from a member of
scheduled tribe to non-tribals without previous sanction of the State
Govemment. In order to facilitate effective enforcement of the said
1959 regulations, the Andhra Pradesh Scheduled Areas Land Transfer
(Amendment) Regulation, 1970 was introduced. Regulation 1970 inter F
alia brought the following changes namely (i) transfers of land in
scheduled areas in favour of 'non-tribals' were wholly prohibited in
future and (ii) non-tribals holding lands in the scheduled areas were
prohibited from transferring their lands in favour of persons other than
tribals. The appellants who owned lands in the scheduled areas having
acquired them fr\lm tribals and 'non-tribals' were affected by this G
amending Regulation of 1970: They filed writ petitions in the High Court
challenging this regulation being unconstitutional. The High Court dis-
missed the writ petitions. Hence these appeals by Certificate under
.; Article 133(l)(a) ofthe Constitution. The main contention of the appel-
lants was that the impugned provisions were unconstitutional as being
violative of Article 19(1)(f) of the Constitntion as it obtained at the H
443
444 SUPREME COURT REPORTS I1988] Supp. 1 S.C.R.

A material time till it was repealed by the Constitution (Forty-fourth)
Amendment in 1979 because they imposed unreasonable restrictions on
the non-tribal holders of properties in the scheduled areas. Dismissing
the appeals and while tracing a short history of the legislation, this
Court,

B HELD: Originally all the lands in these tracts were owned by the
'tribals'. With the advent of the 'non-tribals' in the late 19th Century
and early 20th Century, the lands changed hands from 'tribals' to
'non-trihals'. This change of ownership was a result of exploitation
raising: (1) In the context of money lending operations and (2) in the
context of dubious and unconscionable dealings in the course of trade.
C The 'non-tribals' had so often circumvented the legislation enacted in
order to protect the 'tribals' by recourse to benami transactions and by
recourse to dubious devices. The poor ignorant, illiterate, and
unsophisticated tribals had succumbed to the wiles of the economically
stronger and unscrupulous 'non-tribals'. A legislation which in essence
and substance aims at restoration to the 'tribals' of the lands which
D originally belonged to the 'tribals' but which passed into the hands of
'non-tribals' in the aforesaid background certainly cannot be charac-
terised as unreasonable. [455G-H; 456A-C]

No unreasonableness is involved in making the prohibition against
transfer to 'non-tribals' applicable to both the 'tribal' as also to the
E 'non-tribal' owner in the scheduled area. As a matter of fact it would
have been unreasonable to do otherwise. In the absence of protection,
the economically stronger 'non-tribals' would in course of time devour
all the available Lands and wipe out the very identity of the tribals who
cannot survive in the absence of the only source of livelihood they
presently have. [457C-D]
F
The submission that the prohibition against transferring the pro-
perties to 'non-tribals' being in absolute terms, a 4 non-tribal' cannot
even raise a loan on his properties even in the event of the 'non-tribal'
being under economic compulsion to do so cannot be acceded to as it
overlooks the amendment introduced by Sec. 3A(l) inserted by Regula-
G tion I of 1971. [458A-B]

Tribes of India The Struggle for Survival ( 1982-83 edition) by
Christoph von Furer-Haimendorf; The Continent of Circe, [1965] by
Nirad C. Chaudhari; Manchegowda and Ors. v. State of Karnataka,
[1984] 3 SCC p. 301 and Lingappa Rochanna Appe/war v. State of
H Maharashtra, [1985] 1 SCC 479, referred to.
P.R. REDDY v. STAffE OF A.P. [THAKKAR, LI 445

The argument that 'the expression 'Land' has been used in its A
restricted sense in paragraph 5(2)(a) of Schedule V to the Constitution
of India and therefore the impugned provisions prohibiting the transfer
of lands along with structures thereon by employing the expression
'immovable property' is not in accordance with law is devoid of merit
for two reasons: firstly, there is no reason to believe that 'land' has not
been employed in its legal sense, The expression 'land' in its legal sense B
is a comprehensive expression which is wide enough to include struc-
tures, if any, raised thereon and secondly to interpret the expression
'land' in its narrow sense is to render the benevolent provisions impotent
and ineffective, In that event the prohibition can be easily circumvented
by just raising a farm house or a structure on the land. The impugned
provisions were inserted hy the Amending Regulation precisely to plug c
such loopholes and make the law really effective. [458C-D; 459D-EI

The Dictionary of English Law, [19591 Edition Vol. 2 p. 1053 by
Earl Jowitt; Words and Phrases Judicially Defined, By Roland
Burrows-Vol.Ill 1944 Edition p. 206 and The Law Lexicon, By p.
Ramanatha Aiyar-Reprint Edition 1987-p. 700, referred to. D
\
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
2299-2300 of 1972.

From the Judgment and Order dated the 24.9.1971 of the
Andhra Pradesh High Court in Writ Petition Nos. 806 & 3161of1970. E

L.N. Sinha and S. Madhusudan Rao for the Appellants.

T.S. Krishnamurthi Iyer, K. Ram Kumar and K. Ram Mohan for
the Respondents.
F
Subodh Markandaya and Mrs. C. Markandaya for the inter-
veners.

The Judgment of the Court was delivered by

THAKKAR, J. A challenge to the validity of a provision 1 in so 'G
far as it prohibits the transfer of any immovable property situated in ·
the scheduled areas of Andhra Pradesh by a 'non-tribal' in favour of
another 'non-tribal' having been repelled by the High Court upon

1. Section 3(1) of the Andhra Pradesh Scheduled. Areas Land Transfer Regulation,
1959 as inserted by Regulation I of 1970. (Reproduced at page 6~ Footnote 3). H
446 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A testing on the touchstone of constitutionality, the present appeals'
have been preferred by some of the unsuccessful Original Writ
Petitioners. Some ·()'thers have intervened upon their applica'tion for
I-eave to intervene having been granted by this Court.

The appellants and the interveners have by and large reiterated
B the same contentions before this Court in support of.their plea that
the impugned provision is unconstitutional as being violative of Art.
19(1)(f) of the Constitution of India as it obtained at the material time
till its repeal by the 44th Amendment in 19793 .

A short history of the legislation may be briefly traced to the
C extent considered necessary. In the Andhra Area there existed before
the inauguration of the Constitution, certain laws including the
Agency Tracts Interest and Land Transfer Act, 1917 which inter alia
prohibited transfer of land in the Agency Tract areas except in favour
of members of hill tribes conferring upon the persons belonging to the
Scheduled Tribes certain benefits. After the Constitution of India
0 came into force, Art. 244 of the Constitution and the Fifth Schedule
were made applicable to the administration of the scheduled areas.
Para 6 of the Fifth Schedule empowered the President to notify the
Scheduled areas in consultation with the Governor of the State. The
scheduled areas in Andhra region of this State were notified by the
President through the Scheduled Area (Part 'A' States) Order, 1950.
E Para 5(2) of the Fifth Schedule empowered the Governor of the State
to make Regulations for the peace and good Government of the
Schedule Areas. Accordingly, the Governor made the A.P. Scheduled
Areas Land Transfer Regulation, 1959, (Regulation I of 1959). This
Regulation came into force with effect from 4.3.1959. Section 3(1) of
this Regulation prohibited transfer of immovable properties situated
F in the scheduled areas from a member of scheduled tribes to non-
tribals without previous sanction of the State Government or subject
t6 ru1es made in this behalf, with the previous consent in writing-of the
Agent or of any prescribed officer. Similar laws designed to protect the
tribals from exploitation were in operation in the Telengana ·area of
the then State of Hyderabad. In exercise of powers under paragraph
G 5(2)(a) of Fifth Schedule of the Constitution the Governor enacted the
Andhra Pradesh Scheduled Area Laws (Extension and Amendment)
Regulations, 1963 whereby certain rules and regulations which already
existed, and were in operation in the Andhra area of the State were
2. By a Certificate under Art. 133(1)(a) of the Constitution of India.

H 3. With effect from June 20, 1979.
P.R. REDDY v. STATE OF A.P. !THAKKAR, i.J 447

extended to all parts of the State. The result was that the Andhra
A
Pradesh Scheduled Areas Land Transfer Regulations came to be ex
tended to the Telengana area of the State as well.

Under the 1959 Regulation, any transfer of immovable property
situated in the Agency Tracts, by a member of a Scheduled Tribe was
declared null and void unless, made in favour of any other member of B
a Scheduled Tribe or a registered cooperative •ociety composed solely
of members of the Scheduled Tribes or with the ·previous consent in
writing of the Agent. The said Regulation further empowered the
Agent to decree an ejectment against any person in possession of any
immovable property, the transfer of which was made in contravention
of its provisions and to restore it back to the transferor or his heirs. If
the transferor or his heirs were not willing to take the property or
C
where their whereabouts are not known, the Agent was further
empowered to order assignment or sale of the property to any other
member of a Scheduled Tribe or a registered cooperative society com
posed solely of members of the Scheduled Tribes or otherwise dispose
of it, as if it was a property at the disposal of the State Government. D

However, as difficulties were experienced by the Government in
implementing the ejectment procedures under the said Regulation,
inasmuch as it was not always easy for the concerned authority to
ascertain the origin of the right under which the non-tribal is claiming
possession and whether the land now under the possession of a non- E
tribal was previously acquired from a tribal or not, the said 1959 Regu
lation was amended by the Andhra Pradesh Scheduled Areas Land
Transfer (Amendment) Regulation, 1970 with a view to remedy the
•said mischief. The amending Regulation of 1970 in order to facilitate
effective enforcement of the said 1959 Regulations introduced inter-
a/ia, the following changes, namely: F

(i) A rule of presumption was introduced to the effect that
unless the contrary is proved, where a non-tribal is in
possession of land in the Scheduled areas, he or his
predecessors-in-interest, shall be deemed to have acquired
it through transfer from a tribal; G

(ii) Transfers of land in Scheduled Areas in favour of
non-tribals shall be wholly prohibited in future;

ti (iii) Non-tribals holding lands in the Scheduled Areas shall be
prohibited from transferring their lands in favour of persons H
448 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A other than tribals. Only partitions and devolution by succes-
sion of lands held by them shall be permitted; and

(iv) Where a tribal or non-tribal is unable to s~ll his
land to a tribal on reasonable terms, it shall be open to him
to surrender the land to Government who shall thereupon
B be obliged to acquire it on payment of appropriate com-
pensation.

Clause (a) of substituted section 3(1) 3 rendered all the transfers
made except those in favour of a tribal, to be null and void. Clause (b)
of sub-section (1) of Section 3 raises a presumption that any immov-
C able property in possession with a' non-tribal would be presumed to
have been acquired by such person through a tribal. Clause (c) of
sub-section (1) of Section 3 provides for payment of compensation to
the non-tribal at the rate specified in Section 10 of Andhra Pradesh
Ceiling on Agricultural Holdings Act, 1961. The Andhra Pradesh
Sec. 3 (l)(a) Notwithstanding anything in any enactrrlent, rule or law in force in the
D Agency tracts any transfer of immovable property situated in the Agency
tracts by a person, whether or not such person is a member of a Scheduled
Tribe, shall be absolutely null and void, unless such transfer is made in
favour of person, who is a member of a Scheduled Tribe or a society
registered or deemed to be registered under the Andhra Pradesh Co·
operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of
members of the Scheduled Tribes.
E
(b) Until the contrary is proved, any immovable property situated in the
Agency tracts and In the possession of a person who is not a member of
Scheduled Tribe, shall be presumed to have been acquired by person or
his predecessor in possession through a transfer made to him by a
member of a Scheduled Tribe.

F (c) Where a person intending to se11 his land is not able to effect such sale, by
reason of the fact that no member of a Scheduled. Tribe is willing to
purchase the land or is willing to purchase the land on the terms offered
by such person, then such person may apply to the Agent, the Agency
Divisional Officer or any other prescribed officer for the acquisition of
such land by the State Government, and the Agent. Agency Divisi~nal
Officer or the prescribed officer, as the case may be by order, take over
such land on payment of compensation in accordance with the principles
G specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural
Holdings Act, 1961, (Act, X of 1961), and such land shall thereupcin vest
in the State Government free from all encumbrances and shall be disposed
of in favour of members of the Scheduled Tribes or a society registered or
deemed to be registered under the Andhra Pradesh Co-operative
Societies Act, 1964 (Act 7 of 1964 composed solely of members of the
Scheduled Tribes or in such other manner and subject to such conditions
H as may be prescribed.]
P.R. REDDY v. STATE OF A.P. [THAKKAR, J.[ 449

Regulation No. 1of1970 inserts sub-section (4) in Section 3 whereby
A
'transfer' has been defined to include a sale in execution of a decree
including a benami transaction. The only species of transfer which has
been excluded from the operation of the regulation is partition or
devolution by succession. Provision has been made for the ejectment
of persons who came into possession of such lands as a result of such
transfers and for the restoration of land to the original transferor or his B
heirs. By Regulation 1 of 1971 Section 3-A was introduced whereby a
mortgage without possession in favour of a Bank or institution
approved by the Government was pennitted subject to certain condi-
tions. The Governor further framed a regulation to amend the Andhra
Pradesh Scheduled Areas Land Transfer Regulation, 1959, being A.P.
Regulation No. 1 _of 1978 which came into force with effect from
October 24, 1978. Regulation No. I of 1978 inserted sections 3'B and
c
6-A. Section 3-B prohibited registration of documents of transfer
while sections 6-A and 6-B respectively provided for punishment for
acquiring any immovable property after a decree for ejectment was
passed. The punishment is to the extent of rigorous imprisonment of
one year or fine of Rs.2000 or both. Section 6-B makes such an offence D
cognizable.

The appellants own lands, and have immovable properties in the
Scheduled areas of Andhra Pradesh, and have been cultivating their
lands for the past many years. Some of them have acquired these lands
in the remote past, and some in the recent past by purchase, some from E
the tribals, and some from the non-tribals. By the amending Regula-
tion which is now impugned, all acquisitions of immovable property by
transfer from tribals, and non-tribals alike, are declared null and void.
The appellants are all non-tribals, and are affected by this amending
Regulation. Some of them belong to the Scheduled areas in the Tele-
ngana region, and some of the Scheduled areas in the Andhr1 region. F
But, they have a common grievance that the Regulation cuts at ·the
root of their right to the immovable properties, which have been in
their possession for the past many years.

The principal plea of the appellants before this Court is that in so
far as the impugned provision seeks to control or restrict the right of G
transfer of immovable property by a 'non-tribal' person it is void and
that the High Court has erred in holding otherwise.

Be it realized that the question-whether or not the impugned
regulation brought into force in 1970 has retrospective operation as con·
tended by the State or whether it merely has a prospective operation as
450 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

held by the High Court does not fall for consideration in the present
A
group of appeals. This question has been raised in another set of
appeals which are awaiting decision before this Court. We therefore .,_
do not deal with this dimension of the issue in the present judgment
and refrain from expressing any opinion on this question.

B It may also be mentioned that the thoroughly untenable plea
unsuccessfully advanced before the High Court that the Government
had exceeded the power conferred by para 5(2) of Schedule V of the
Constitution was not exercised for the peace and good governance of
the scheduled area, has not been reiterated before this Court. This
Court is therefore not required to deal with this fact which has been
fully, adequately, and most satisfactorily dealt with by the High Court
c which unhesitatingly turned down the plea.

The reasonableness or otherwise of the restrictions imposed by
the impugned provision cannot be tested in void. The socio-economic
landscape in the b"ckdrop of which the compulsion to legislate was
D occasioned needs to be painted to enable the Court to approach in a ii""
meaningful manner the problem posed by the challenge rooted in the
submission that these restrictions are unreasonable from the perspec-
tive of Article 19( 1) of the Constitution of India inasmuch as these are
not essential for the protection of the ·interests of the Scheduled
Tribes. To this end the following picture emerging from the additional
E counter filed by the State drawn from sources which have rightly been
considered as authentic by the High Court deserves to be highlighted:

1. Within the scheduled areas of both Telengana and Andhra
Pradesh regions the land was entirely in occupation of diffe-
rent Tribal communities. The area was an inaccessible tract
F of land covered by forests and hills. These tribal communi-
ties were in occupation of lands and lived by shifting cultiva-
tion and gathering whatever produce that was available.

2. The non-tribals who arrived in these areas landed'in the 19th
Century in certain areas and the early 10th Century in cer-
,c; tain other areas found the tribals who were in occupation of
these lands an easy prey for the schemes of exploitation. The
non-tribals were lending money to the tribal communities
and taking the land belonging to them as security though
nothing was taken -in writing from a tribal. The rates of
interest charged ranged between 25 to 50 per cent and in
,H certain cases even 100 per cent. The tribals who were tradi-
P.R. REDDY v. STATE. OF A.P. !THAKKAR, J.] 451

tionally honest and who were simple in their thought and
A
habits fell an easy prey to the schemes of the non-tribals.

3. None of these money lenders ever credited any amount paid
by the tribals ,towards their debt and whatever entries were
made in the books of the money lenders were implicitly
believed by the tribals. ·The tribals were not aware that when B
produce was sold to the non-tribals, they were using a larger
weight and a smaller weight·was applied for selling outside
goods to the tribals. The indebtedness of the-tribal had taken
the form of bonded labour in many cases. The debt could
never be discharged by the tribals.

4. The money lenders continued to be in occupation of most of c
the lands and the tribals became their serfs. The non-tribals
have also forcibly occupied some of the lands. The tribals
were ignorant and they were not aware that they could go
and report to the concerned authorities about the contraven-
tion of the Regulations protecting their rights. The non- D
tribals have been taking full advantage of their ignorance
and exploited them and are continuing to exploit them,

5. There were several rebellious movements in the Scheduled
areas against the oppression by the money lenders and
rapacious landlords. Exploitation of.tribals was a cause of E
many disturbances such 'as Ramparebellion in East Godavari
in about 1899. In comparatively recent times also in Adila-
bad district the tribals rebelled in 1941 as a result of aliena-
tion of land and forest reservation rules and even in 1967-68,
most of the tribals fell an easy prey to some of the political
leaders who promised that the lands in Scheduled areas F
would be restored to them and that the non-tribals would be
driven out.

6. It is a known fact that these tribal communities joined hands
with the so called revolutionaries and again there was an
uprising in the tribal area against the non-tribals which had G
started spreading to the plains areas also.

7. The tribal communities which went into the grip of revo-
lutionaries were not able to extricate themselves out of their
grip. It is only after the tribals were promised by the Govern-
ment that the land would be restored to them and the exploi- H
452 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A
tation by non-tribals would be checked and after arresting the
several revolutionaries peace has prevailed in several parts
of the scheduled areas. If the Scheduled Tribes were not put
back in possession of the land and measures were not taken
to prevent explo.itation by non-tribals peace would not have
B prevailed in the Scheduled Areas.

8. It was observed by several committees that the non-tribals
were able to find ways and means to circumvent the provi-
sions of Regulation I of 1959 by entering into benami trans-
actions and other clandestine transactions with unsophistica-
ted tribals. It is absolutely necessary to create conditions for
c peace and maintain peace and prevent the new non-tribals
from settling down in the Scheduled area. If the alienations
are permitted to the non-tribals there is a danger of large-
scale exploitation by the new non-tribal again with the result
peace will be disturbed in that area.
D
9. It is only with a view to maintain peace and to govern the
area effectively Regulation I of 1970 was passed by the ·
Governor. A non-tribal ,Yho validly acquired the title will
not be disturbed, but he is not allowed to sell his land to a
non-tribal which will inevitably mean new entrants into this
E area.

10. In a sample survey conducted in Chintapalli and Bhadra-
chalam it was found that the average size of holding per
family is only 3 to 4 acres. But even this extent of land was
either mortgaged or otherwise transferred in favour of non-
F tribals and they are in possession of the lands.

11. Unless new entrants into the Scheduled areas are prevented
from settling down in the Scheduled areas by purchasing
properties either from tribals or non-tribals, it is not possible
to prevent the exploitation of the unsophisticated tribals. It
G is only with a view to enforce the valid provisions of Regula-
tion I of 1959, the Regulation viz., Regulation I of 1970 was
made. It is in the interests of the tribals and for their protec-
tion Regulation I of 1970 was passed, because without
restricting or prohibiting the alienation of lands in the pos-
session of non-tribals to non-tribals the objectives cannot be
I-! achieved.
P,R: REDDY v. STATE OF A.P. ITHAKKAI( J.] 453

What has emerged from the additional counter filed by the State A
in the High Court is buttressed by the contents of a treatise authored
by a well-known research scholar'. the treatise is the culmination of
laborious research carried out in respect of the very areas which form a
part of the ~cheduled area of Andhra Pradesh in respect of which the
impugned legislation has been eriacted. It has been stated therein that·
more than 40 million Indians belong to tribal communities distinct 8
from the great mass of the society. They are the aboriginal races from
the Dravidian architects of ancient South Indian civilizations. The
dramatic change in the peaceful co-existence between the tribals on
the one hand and the more dynamic section of the society occurred
when improved communications opened up previously inaccessible tri-
bal areas and rapid growth of the Indian population led to pressure on
the land's resources. In the past forty years most of the tribal societies
have come under attack by economically more advanced and politically
more powerful ethnic groups who infiltrated into tribal regions in search
of land and new economic possibilites. These population movements
triggered a struggle for land in which aboriginal tribesmen were usually
the losers and, deprived of their ancestral land, turned into impoveri- D
shed landless labourers. 2 •

In this treatise the learned author has quoted the distressing
forecast made by Nirad C. Chaudhari in his book' wherein he has
lamented:
E
"in an industralized India the destruction of the aborigi-
nal's life is as inevitable as ihe submergence of the Egyp-
tian temples caused by the dams of the Nile ....... As
things are going there can be no grandeur in the primitive's
end. It will not be even sirnpie extinction, which is not the
worst of human destinies. It is to be feard that the aborigi- F
nal's last act will be squalid, insiead of being tragic. What
will be seen with most regret will be not his disappearance
j '
but his enslavement and degradation.

It cannot therefore be gain-said that the tribals not only require
to be preserved and protected in respect of their economic and educa- G
tional interest but they also require to be immunized from social in-
justice and exploitation. The Founding Fathers of the Constitution of
1. Tribes of India The Struggle for Survival (1982·83 edition) by Christoph von Furer·
Haimcndorf.
2. Inside of front flap.
H
3. The Conti_nent of Circe, 1965.
454 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A India have in their wisdom and foresight taken cognizance of this vital
aspect as is evidenced by the provisions embodied in Article 15(4) 1 and
Article 462 of the Constitution of India.

The constitutional mandate reflected in the aforesaid Articles
has influenced this Court in no small measure in upholding the
B constitutionality of the impugned legislative provisions enacted with
an eye on preserving and protecting the interest of the tribals in the
lands in the tribal areas. Reference in this behalf may be made to
Manchegowda and Ors. v. State of Karnataka' wherein the focus was
on provisions prohibiting transfers to 'non-tribals' of lands granted to
the tribals and on remedial measures for speedy restoration of such
lands to the members of Scheduled Castes and Scheduled Tribes in
c cases where the lands had passed into the hands of the 'non-tribals'.
Reference may also be made to Lingappa Po,channa Appelwar v. State
of Maharashtra' whereby this Court has upheld the constitutionality of
the provisions enacted essentially in order to secure restoration to the
original tribal owners the lands which had gone out of their hands and
D passed into the hands of the 'non-tribals'.

The problem presented in the present appeals is somewhat diffe-
rent from the problems which have surfaced so far. It brings into focus
the challenge to the validity of the provisions enacted with a view to
prevent 'non-tribals' along with 'tribals' from transferring lands includ-
E ing structures raised thereon in favour of 'non-tribals' in the 'Scheduled
areas. It is in this context that appellants who are 'non-tribals' have
mounted an assault on the constitutionality of the impugned provisions
by recourse to the plea that these are violative of Article 19{l)(f) of the
Constitution of India. It is alleged that the impugned provisions im-
pose unreasonable restrictions on the 'non-tribal' holders of properties
F in the Scheduled areas.
1. Art. 15(4~"Nothing in this article or in clause (2) of article 29 shall prevent the
State from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes."

2. Article 46 "Promotion of educational and economic interests of Scheduled Castes,
G Scheduled Tribes and other weaker Sections-The State shall promote with special
care the educational and economic interests of the weaker sections of the people, and
in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect
them from social injustice and all forms of exploitation."

3. 1984(3) sec P. 301

H 4. 1985(1) SCC479.
P.R. ·REDDY v. STATE OF A.P. ITIIAKKAR, J.] 455

The challenge rooted in Article 19(1)(f) cannot survive after the A
repeal of the said Article with effect from June 20, 1979 by virtue of
the 44th Amendment. It cannot survive inasmuch as the doctrine of
eclipse would come into play. All the same, it needs to be examined as
it is understood that numerous transactions have taken place during
the interregnum. More so as the matter is of vital importance from the
platform of the welfare of the 'tribals' whose welfare had exercised the B
minds of the Founding Fathers in shaping the Constitution as
evidenced by Article 15(4) and Article 46 thereof. The question of
questions then is whether the impugned provisions prohibiting not
only tribals hut also 'non-tribals' from transferring their lands and
properties in the Scheduled areas to 'non-tribals' are ultra vires Article
19(1)(f). The impugned provisions have been assailed on the ground of C
their alleged 'unreasonableness. In order to succeed in their challenge
the appellants will have to identify the obnoxious components or
factors of the impugned provisions.

Two submissions have been urged in order to answer the ques-
tion as to 'why' 'how' and in 'what manner' the impugned provisions o·
are branded as unreasonable:

1. The prchibition imposed on the 'tribals' restraining the:n
from transferring lands and properties to 'non-tribals' is
understandable inasmuch as the objective is to ensure that the
total extent of properties held by the tribals is not diminished. E
However, there is no rational basis for restraining transfer of
properties from 'non-tribals' to 'non-tribals' as such transfer
does no more than substitute one 'non-tribal' by another
'non-tribal' and does not in any manner diminish the extent of
properties held by the 'tribal'.
F
2. The prohibition against transferring the properties to 'non-
tribals' being in absolute terms, a 'non-tribal' cannot even
raise a loan on his properties even in the event of th~ 'non-
tribal' being under economic compulsion to do so.

It is not possible to accede to any of the aforesaid submissions. As G
highlighted earlier, ori~inally all the lands in these tracks were owned
by the 'tribals'. With the advent of the 'non-tribals' in the late 19th
Century and early 20th Century, the lands changed hands from
'tribals' to 'non-tribals'. This change of ownership was a result of
exploitation arising: (1) in the context of money lending operations
and (2) in the context of dubious and unconscionable dealings in the H
456 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.

course of trade. The 'non-tribals' had so often circumvented the legis-
A
lation enacted in order to protect the 'tribals' by recourse to benami
transactions, and by recourse to dubious devices. The poor ignorant,
illiterate, a_nd unsophisticated tribals had succumbed to the wiles of the
economically stronger and unscrupulous 'non-tribals'. A legislation
which in essence and substance aims at restoration to the 'tribals' of
B the lands which originally belonged to the 'tribals' but which passed
into the hands of 'non-tribals' in the aforesaid background certainly
cannot be characterised as unreasonable). The scanning must be done
through the objective lens of the Court representing the collective
conscience of the community and not through the tinged lens of appel-
lants whose economic interests may be prejudicially affected by the
impugned provisions. In other words, the Court examining the matter
c from the perspective of the Constitutional mandate armed with the
criterion of objectivity and overall interest of the community at large
must be satisfied 'that the 'restridions are unreasonable.

As a matter of fact it would be unreasonable and unfair to hold
D that the impugned proVisions are unreasonable on this account. Surely
it is not unreasonable to restore upto the 'tribals' what originally be-
longed to them out of which they were deprived as a result of exploita-
tive invasion on the part of 'non-tribals'. In the first place should
lessons not be drawn from past experience to plug the loop-holes and
prevent future recourse to devices to flout the law? The community
E cannot shut its eyes to the fact that the competition between the
'tribals' and the 'non-tribals' partakes of the character of a race bet-
ween a handicapped one-legged person and an ablebodied two legged
person. True, transfer by 'non-tribals' to 'non-tribal would not
diminish the pool. lt would maintain status quo. But is it sufficient or
fair enough to freeze the exploitative deprivation of the 'tribals' and
F thereby legalize and perpetuate the past-wrong instead of effacing the
same? As a matter of fact it would be unjust, unfair and highly
unreasonable merely to freeze the situation instead of reversing the
injustice and restoring the status-quo-ante. The provisions merely
command that if a land holder voluntarily and on his own volition is
desirous of alienting the land, he may do so only in a favour of a
G 'tribal'. It would be adding insult to injury to impose such a disability
only on the tribals (the victims of oppression and exploitation
themselves) and discriminate against them in this regard whilst leaving
the 'non-tribals' to thrive on the fruits of their exploitation at the cost
of 'tribals'. The 'non-tribal' economic exploiters cannot be installed on
the pedestal of immunity and accorded a privileged treatment by
H permitting them to transfer the lands and structures, if any, raised on
P.R. REDDY v. STATE OF A.P. !THAKKAR, J.J 457

such lands, to 'non-tribals' and make profits at the cost of the tribals. It A
would not only be tantamount to perpetuating the exploitation ·and
injustice, it would tantamount to placing premium on the 'exploitation
and injustice perpetrated by the nort-tribals. Thus it would be the
height of unreasonableness to impose the disability only On the tribals
whilst leaving out the 'non-tribals'. It would also be counter productive B
to do so: it must also be emphasized that to freeze the pool tlf lahlls
available to the 'tHbais' at the present level is virtually to diminish the
pboL There is no escape from this outcome because the realities of life
being what they are with the population increase amongst the tribals
remaining unfrozen, increase in their population will automatically
diminish the siie of their_ pool if the same is frozen. No unreasonable-
ness therefore is involved in making the prohibition against transfer to C
'non-tribals' applicable to both the 'tribal' as also to the 'non-tribal'
owners in the scheduled area. As a matter of fact it would have been
unreasonable to do otherwise. In the absence of protection, the
economically stronger 'non-tribais' would in course of time devour all
the available lands and wipe out the very identity of the tribals who D
cannot survive in the absence of the only source of livelihood they
presently have. It is precisely for this reason that the Architects of the
Cohstitutio11 have with l'arsight arid foresight provided in paragraph
5(2) of Filth Scheilule that the Btiveiiior may make regulations inter
a/ia "prohiBitii\g or restricting ihe transfer of land in the scheduled
areas noiwithstariding any provision embodied in the Constitution E
elsewhere". And as has emerged from the foregoing discussion, it is
unreasonable to restrict the prohibition against transfer to 'tribals'. It
has to be made comprehensive enough to embrace the 'non-tribals' as
well. With the improvement in the economic conditions of the 'tribals',
there would not be much difficulty in finding 'tribal' purchasers.
Besides, Section 3(J)(c) thoughtfully provides even for the contin- F
gency of hot being able io find a 'tribal' willing or prepared to purchase
the property. This provision obliges the State Government to acquire
the property dn payment of compensation as provided therein. One
can envisage that soine hardship would be occasioned to the owners
io lands located in the scheduled areas. But such hardship would
operate equally ori the 'lribals' as well as the 'non-tribals'. Such hard-
ship notwithstanding keeping in mind the larger perspective of the
interest of the community in its entirety in the light of the foregoing
discussion, the restrictions caiuibt be condemned as unreasonable.
More so if the fador ihai the original acquisition by the 'noiHribals'
ffoiri 'irioais'. was polluted by the sills cjf exploiiatiori cbmmiiied by ilie
'iiofi:tfibais' is ndt ignbrdl:
458 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

The next submission is built on the premise that the impugned
A provision does not permit the owner even to raise a Joan on the secu-
rity of the land owned by him. The submission overlooks the amend-
ment introduced by Section 3A(l)' inserted by Regulation 1of1971.
True, this provision was introduced after a few months. But then in
none of these appeals a grievance is voiced that any of the writ
B petitioners in fact wanted to raise a loan, but could not do so, during
this time-bracket of a few months. In any case the challenge can no
longer survive, with the introduction of Section 3A.
I
Another argument which did not succeed in the High Court has
been hopefully persisted with in the Court. The expression "Land" has
been used in its restricted sense in paragraph 5(2)(a) of Schedule V
c and therefore the impugned provisions prohibiting the transfer of
lands along with structures thereon by employing the expression
"immovable property" is not in accordance with law. Such is the argu-
ment. This argument is devoid of merit for two reasons: Firstly, there
is no reason to believe that 'land' has not been employed in its legal
D sense. The expression 'land' in its legal sense is a comprehensive
expression which is wide enough to include structures, if any, raised
thereon. While this proposition hardly needs to be buttressed, support
can be sought from the following sources:

"The Dictionary of English Law.0
E
LAND, in its restrained sense, means soil, but in its legal
acceptation it is a generic term, comprehending every
species of ground, soil or earth, whatsoever, as meadows,
pastures, woods, moors, waters, marshes, furze, and
heath; it includes also houses, mills, castles, and other
F buildings; for with the conveyance of the land, the
structures upon it pass also. And besides an indefinite ex-
tent upwards, it extends downwards to the globe's centre,
1. 3A(l): Special provision in respect of mortgages without possession: Notwithstand·
ing anything contained in this Regulation or in any enactment, rule or law inforce in
the Agency tracts,
G
(1) any person whether or not such person is member of a Schedule Tribe, may,
subject to the provisions of Clause (2) mortgage without possession, any immovable
property situated in the Agency tracts, to any co-operative Society including a land
mortgage bank, or to any bank or other financial institutiol} approved by the State
Government.

H 2. 1959 Edition-Vol. 2. p. 1053 by Earl Jowin.
P.R. REDDY v. STATE OF A.P. [THAKKAR, J.J 459

hence the maxim, Cujus est solum ejus est usque ad caelum
A
et ad inferos; or, more curtly expressed, Cujus est solum
ejus est altum (Co. Litt. 4a)."

"Words And Phrases Judicially Defined:'

The word 'land' would be variously understood by different B
persons. To a farmer the word 'land' would not mean his
farm buildings; to a lawyer the word wQllld include every-
thing that was upon the land fixed immovably upon it.
Smith v. Richmond, [1899] A.C. 448, per Lord Halsbury,
L.C., at p. 448."

"The Law Lexicon:'
c
The word "land" is a comprehensive term, including standing trees,
buildings, fences, stones, and waters, as well as the earth we stand on.
Standing trees must be regarded as part and parcel of the land in which
they are rooted and from which they draw their support." D

Secondly, to interpret the expression 'land' in its narrow sense is
to render the benevolent provisions impotent and ineffective. In that
event the prohibition can be easily circumvented by just raising a farm
house or a structure on the land. The impugned provisions were
inserted by the Amending Regulation precisely to plug such loo- E
pholes and make the law really effective. The High Court was
perfectly justified in repelling this meritless plea. It is therefore not
possible to accede to this submission.

Equally meritless in the submission that the presumption
embodied in section 3(1)(b) is unreasonable. The High Court has F
unhesitatingly negatived this plea. The High Court has reasoned:

"With regard to the presumption, which is impugned, it is a
rebuttable presumption and a rule of evidence. The non-
tribals who have acquired the lands, and properties of the
tribals could be reasonably expected to disclose their title G
to the properties. This also accords with the rule of evi-
dence, that when any fact is specially within the knowledge
of any person the burden of proving that fact is upon him
1. By Roland Burrows-Vol. ill 1944Edition p; 206.

2. ByP. RamanathaAiyar-ReprintEdition 1987-:-P· 700. H
460 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A vide-Section 106 of the Indian Evidence Act. The triba1s
are mostly ignorant persons, and naturally suffer from in-
evitable handicaps in the matter of setting up or proving
their rights to lands, and property which they had lost."

The reasoning is impeccable and faultless. The plea must accordingly
B
fail.

Tue appeals· must therefore fail and be dismissed. No costs.

Appeals dismissed.