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V.S. Deshpande, J.—In these cases the petitioners challenge the validity of the Maharashtra Restoration of Lands to Scheduled Tribes Act of 1974 (hereinafter referred to as the Act). The petitioners are all non-tribals, who had purchased lands from the Tribals. Each one of them is required by notices to show cause why the lands so purchased by them should not be restored to the Tribal-transferors under sections 3 or 4 of the Act. Rather than appear before the Sub-Divisonal Officer and show cause, the petitioners approached this Court praying to quash such notices, on the ground that the Act is void being violative of the Constitutional provisions. During the pendency of proceedings, the Act has been included in the Ninth Schedule of the Constitution by 40th Constitution Amendment Act of 1976. The learned Advocate General appearing for the State drew our attention to this and contended that with the inclusion of the Act in the Ninth Schedule, Rules in all these special Civil Applications and other Special Civil Applications are liable to be discharged.
Mr. M. S. Chaudhari, the learned Advocate appearing for the petitioners in Special Civil Applications Nos. 1909 of 1975, 153 of 1976 and 943 of 1976 and Mr. Madkholkar and Mr. Daga, learned Advocates appearing for the petitioner in Special Civil Application No. 1599 of 1976 raised several contentions apart from challenging the enactment by reference to the provisions in part 111 of the Constitution and contended that the Act is invalid. Mr. Natu, learned Advocate, sought leave to intervene in support of the contentions, saying that the same points arise in some of the petitions in which he appears.
The following points were raised before us in the course of their arguments by the learned Advocates.
(i) The definition of "Tribal" in section 2 (j) of the Act, not being in accord with Article 366 (25) of the Constitution, suffers from legislative incompetency;
(ii) the provisions of the Act seeking to favour the tribals residing in area for which they are not so notified as Scheduled Tribes under Article 342 of the Constitution, are discriminatory, and violative of Article 15 of the Constitution;
(iii) Assuming that the Act is immune from such attack due to its inclusion in the Ninth Schedule, the definition of the word "Scheduled Tribes" borrowed in the Act, from the Maharashtra Land Revenue Code of 1966 (hereinafter referred to as the Code) cannot claim such immunity, the Code not having been so included in the Ninth Schedule;
(iv) The Act essentially deals with protection of Tribals and not the land or anything connected therewith and is, therefore, beyond the legislative competency of the State Legislature;
(v) This enactment is a colourable piece of legislation in that, alleged need to extend the protection of the Code and Tenancy Laws to the Tribals is a mere pretence.
Mr. Madkholkar, in addition, raised the following two points.
(i) The legislative injunction under Article 31A is not impaired by inclusion of the Act in the Ninth Schedule.
(ii) Inclusion of the Act in the Ninth Schedule cannot immunize the Act from challenges by reference to part III of the Constitution as Article 31B itself is ultra-vires being violative of the basic structure of the Constitution.
Mr. Madkholkar, however, fairly conceded that a Division Bench of this Court has already overruled these contentions in Special Civil Application No. 1394 of 1975 dated 10th of August 1976.
In order to appreciate the main contentions of the learned Advocates, it is necessary to give a short resume of the enactment itself.
Earlier by an ordinance No. 13 of 1974 dated 6-7-1974 the Code and the three Tenancy Acts in the State were amended with effect from 6 7-1974 (i) to prevent transfer of lands by tribal to non-Tribal after 6-7-1974 without sanction of the collector, (ii) to confiscate the lands so sold in breach of such prohibition to State, (iii) to exempt the leases by Tribals to non-Tribals from the relevant Tenancy Laws, (iv) and to restore the land or part thereof to the Tribals which were transferred before 6-7-1974 in breach of section 36 (2) or any other law as it then stood. It is unnecessary to refer to the concessions where non-Tribals lands were acquired for public purpose. Under the unamended explanation to section 36 of the Code, the Scheduled Tribes meant the tribals so notified by the President under Article 342 of the Constitution by reference to their residence in certain areas in the State. The Explanation has been amended to expand the connotation of this expression "Scheduled Tribes" so as to include within its fold all such tribes without regard to the place of residence in Maharashtra declaring that they also needed protection. This Ordinance was replaced by Act 35 of 1974.
As recited in the preamble of the Act, a committee was appointed on 15-3-1971 by the Maharashtra Government to enquire into and report to the State Government, inter alia, on how for the provisions of the Code and the relevant tenancy laws have been effective in giving protection to the persons belonging to the Scheduled Tribes, and (ii) to suggest amongst other things, suitable amendments therein, if the existing provisions were inadequate. The committee submitted its report to the Government on 7-4-1972. The provisions of this Act have been enacted on the recommendations of the said Committee. The Act was assented to by the President on 28-4-1975 and published in the Gazette on 28-5-1975 and brought into force on 1-11-1975.
Section 2 (1)(i) of the Act defines the word "transfer." Transfer of land belonging to the Tribal made in favour of non-Tribal during the period from 1st April 1957 to 6th July 1974, (i) by the act of the parties including sale, exchange etc. or, (ii) under a decree or order of a Court, or (iii) under a statutory sale, is included in the definition of the word "transfer." The transfer of land falling under proviso of sub-section (3) of section 36 of the Code is excluded from the purview of this Act. The Ordinance No. 13 of 1974 and the Act passed thereafter has made its inclusion unnecessary. The word "tribal" is defined u/s 2 (j) to mean a person belonging to Scheduled Tribe within the meaning of the explanation to section 36 of the Code. Section 3 (1) (i) and (ii) provides for restoration of lands to the Tribals where the lands were either exchanged with or otherwise transferred to the non-Tribals during the above period. Section 4 provides for restoration of land transferred under the relevant tenancy Act, or under decree of the Court or under any other statute. Sub-section (4) of section 3 provides for determination of the value of improvements made and encumbrances created on the land during the period of the occupation and the amount liable to be refunded or paid to the non Tribal-transferee or Tribal-transferor, or charge holder, and enforcement of such amount. Restoration is made conditional on undertaking by the Tribal to cultivate the land personally and to pay as determined under sub-section (4). Section 5 deals with the damages for occupation of land in certain conditions, section 6 with appeals to Revenue Tribunal, section 7 with the revisional powers, section 8 with Court-fees payable on the applications. Section 9 then deals with the finality of decision or order of Collector and decision of Revenue Tribunal. Section 10 then ousts the jurisdiction of the Civil Court in regard to the questions that are required to be settled, dealt with or decided under this Act by the Collector, Commissioner or Maharashtra Revenue Tribunal or the State Government. Section 11 then deals with the rale-making powers.
Section 2 (j) of the Act defines Tribal as follows :
"Tribal" means a person belonging to a Scheduled Tribe within the meaning of the Explanation to section 36 of the Code, and includes his successor-in-interests;
Section 36 (2) of the Code is as follows :
Notwithstanding anything contained in the foregoing sub-section occupancies of persons belonging to the Scheduled Tribes (hereinafter referred to as the ''Tribals''), (being occupancies wherever situated in the state), shall not be transferred except with the previous sanction of the Collector.
"Explanation" to section 36 of the Code is as follows :
"Explanation"-For the purposes of this section "Scheduled Tribes" means such tribes or Tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Maharashtra under Article 342 of the Constitution of India (and persons, who belong to the tribes or Tribal communities, or parts of, or groups within, tribes or tribal communities specified in part VII-A of the Scheduled to the order made and the said Article 342, but who are not resident in the localities specified in that order who nevertheless need the protection of this section and section 36-A (and it is hereby declared that they do need such protection) shall, for the purposes of those sections be treated in the same manner as members of the Scheduled Tribes).
The Code has been in force with effect from 15th of August 1967. The tribals thus are equated with the "Scheduled Tribes." As indicated earlier, the Explanation is now amended by Ordinance No. 13 of 1974 replaced by the Amendment Act No. 33 of 1974, by adding the bracketted italics portion, including in the sweep of the "Scheduled Tribes" the said tribes in Maharashtra without regard to where they reside.
In order to understand the genesis of the Presidential Order notifying Scheduled Tribes under Article 342 of the Constitution, one has to bear in mind that the Constitution makes special provisions relating to certain classes under Part XVI thereof. Articles 330 to 337 deal with such special provisions for reservation of seats for Scheduled Castes and Scheduled Tribes and representation of the Anglo-Indian community, in the House of the People, Legislative Assemblies of the States, in the services and posts and in respect to educational grants for the benefit of Anglo-Indian community. Article 338 contemplates appointment of a Special Officer by the President for Scheduled Castes, Scheduled Tribes, while Article 339 contemplates control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes. Article 340 contemplates appointment of a Commission to investigate the conditions of backward classes while Article 341 authorises the President to specify by a public notification the castes, races or tribes or, parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State. Article 342 then authorises the President similarly to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State. The Parliament then is also authorised under Article 342 (2) to modify such public notification by law and such notification is made conclusive and final subject to the same.
Mr. Chaudhari and Mr. Madkholkar mainly rely on the exclusive powers of the President and the Parliament under Article 342 to notify the tribes or part thereof as Scheduled Tribes and contend that the State Legislature is incompetent to amend or in any manner modify the Presidential Order of 1950 notifying which tribes in Maharashtra and within what particular area therein, any tribe can be considered to be Scheduled Tribe. The amendment introduced in the Explanation to section 36 of the Code under the Ordinance of 1974 and Act 35 of 1974 is as much ultra vires of the Legislative power, so argue the Learned Advocates, as its adoption in the Act u/s 2 (J) thereof. In other words, the validity of treating these Scheduled Tribes as such Scheduled Tribes beyond the areas mentioned in the Presidential Order is challenged for lack of Legislative competency.
The contention no doubt is attractive. It, however, ignores that even the notification contemplated to be issued by the President under Article 342 or to be modified by the Parliament by law, is intended mainly to effectuate the purposes adverted to in the Chapter XVI and that too only "for the purposes of this Constitution". In other words, wherever any Constitutional provision such as Article 15 (4), 19 (5) or 46 happens to refer to the "Scheduled Tribes", reference necessarily shall be deemed to have been limited to the "Scheduled Tribes" so notified by the President or so amended by the Parliament. The State Legislature will not be competent to add, amend, expand or modify the same for the purpose of the Constitution. This is further expressly made clear by the definition of the word "Scheduled Tribes" by clause (25) of Article 366 which defines many such expressions. But there is nothing in Article 342 or Chapter XVI or in any other article of the Constitution, to indicate, that such expressions or the words must carry the same connotation or the meanings in some other enactment or context, for different purposes and objects unconnected directly or indirectly with the "purpose of the Constitution". It is true that connotation of this expression is sought to be expanded in the Code by Amendment Act No. 35 of 1974 by including within its sweep such tribes, even if they reside in the areas in which these are not notified to be such Scheduled Tribes under the Presidential Order and this amended explanation is adopted in the definition of the tribal u/s 2 (j) of the Act. This amendment of the Code and its adoption in the Act, both aim at achieving the same object, namely of ensuring benefits of the Code and the relevant Tenancy Acts to the Tribals i.e. Scheduled Tribes without regard to where they happen to reside. This is on the basis of the legislative finding that intended benefits under these enactments had not reached this class of citizens. The achievement of this object necessitated (1) the expansion of the connotation of the word Scheduled Tribes beyond what is conceived under the Presidential Order, for the purposes of the Code and the Act (2) amendment of the Code to restore occupancies of the lands transferred in breach of legal prohibitions (3) enforcement of Act to ensure restoration of land duly transferred by them. We are unable to see why the State Legislature can be said to be incompetent to expand the connotation of this expression for the purposes of its own legislation as long as it does not directly or indirectly deal with or come into conflict with any Constitutional provision dealing with the Scheduled Tribes.
The Legislature could have achieved the same object, without any reference to Article 342 or she Presidential Order thereunder, both in the Code and in the Act, by merely enumerating the list of the tribes in the body of the Act in defining section or annexing such list to the Code and the Act to show for whom the projection is intended. Prefixing the adjective "Scheduled" would in that case have been wholly unnecessary. No question of amending the Presidential Order could have arisen, as is now suggested nor the question of legislative incompetency. Rather than adopt this somewhat straight but longish process, the Legislature has adopted the short but roundabout process of adopting firstly the Constitutional conception of the "Scheduled Tribes" in the explanation to section 36 of the Code, and giving it an extended connotation to suit its requirements and secondly to adopt, so expanded definition in this Act itself. Adopting or incorporating definitions, expressions, conceptions and even machineries of one Act, in the other Act, with adaptations and modifications is a well known legislative device permissible within certain limits. This process by itself does not involve any question of amendment of the legislation from which, such definitions or conceptions are borrowed, nor the question of the competency of the borrowing or adopting Legislature, to legislate the Act from which the same are borrowed. The adoption and incorporation has the effect as if the borrowed words and sentences from Part VI-A of Presidential Order dealing with Maharashtra, are written with pen and ink, afresh in the Code as well as in the Act itself, by scoring off the limitation of areas therein specified in the order. Legislative competency of Legislature, to so fictionally specify, the tribes in the Act itself shall have to be determined by reference to List II or list III of the Constitution. In other words, if the present legislation i.e., the impugned Act, is found to be relatable to any entry in list II or entry No. 18 in List II, as contended by the learned Advocate General, question of its competency must cease to arise. Thus there is no basis or foundation for assumption that, the Act seeks to amend the Presidential Order under Article 342 merely because it seeks to incorporate the list of tribes in its own body by this device with necessary adaptations and modifications. No question of amendment of the order under Article 342 or the competency to amend such order really arises in this case.
Mr. Choudhari and Mr. ''Madkholkar contend that validity of every Act is liable to be tested by reference to the provisions of the Constitution. Each one of the Acts has to accord with the limitations placed on the legislative powers. The definitions of any word and expressions in the Act, so contend the Advocates, must conform those that are defined, in Article 366 (25) of the Constitution, As to the first part of the proposition, there cannot be any quarrel. That every Act passed by the Central or the State Legislature has got to be within the constitutional limitations, goes without saying. But it is fallacious to assume that every word and expression in the Constitutional provision must also carry the same meaning if and when used in any Central or State enactment. The connotation and meaning of the words and expressions depend amongst others, on the intendment of the Act and the context. It is not unusual for the Legislature even to attribute artificial meaning to the words when found necessary to carry out effectively its policy. Identical words and expressions very often than not, are bound to carry different meaning from Act to Act and same is equally true about the expressions in Constitutional provisions. Suffice it to observe there is no Constitutional provision placing any such limit on the Legislature and no Act exceeds the Constitutional limit merely by giving different meaning to the words which happen to find place in the Constitution.
Mr. Chaudhari and Mr. Madkholkar, however, contend that in the event of the validity of the Act being challenged by reference to Articles 14, 15, 19 or 31 of the Constitution, question of competency of the State Legislature to extend the conception of Scheduled Tribes is bound to arise. This contention cannot be said to be without some substance. But no such conflict was suggested by reference to Articles 14, 19 or 31 in the course of arguments. Reliance was placed on Article 15. Article 15 contains an injunction against the State Legislature from discriminating against any citizen on grounds "only of religion, race, caste, sex, place of birth or any of them". The impugned Act, as the preamble indicates, does seek to benefit the tribals, i. e., the Scheduled Tribes as defined u/s 2 (j) of the Act read with Explanation to section 36 of the Code. It is a debatable question if this by itself amounts to invidious discrimination. It is also a moot question if such discrimination on the ground of belonging to the tribes amounts to discrimination "only on the ground of religion, race or casts". If protection of Article 15 (4) is found to be necessary, it may not become available in regard to the tribes residing beyond the areas specified in the Presidential Order under Article 342, and the word ''Scheduled'' Tribe in Article 15 (4) shall have to be construed under Article 366 (25) and limited to one specified in such order alone. We, however, do not propose to express any opinion on either of these three vexed questions. Admittedly the impugned Act is included in the Ninth Schedule and is, therefore, made immune, under Article 31B of the Constitution, from any attacks by reference to any Article under Part III of the Constitution, including Article 15. Our attention is not drawn either by Mr. Chaudhari or Mr. Madkholkar to any other provision of the Constitution which is likely to come into conflict with the extended conception of the "Scheduled Tribes" as conceived u/s 2(j) read with Explanation to section 36 of the Code. We are, therefore, unable to see how the definition as contained in section 2 (j) can suffer from legislative competency merely because the conception of Scheduled Tribes conceived thereunder does not accord with the conception of Scheduled Tribes conceived under Article 342 of the Constitution.
It is true that the original definition of the word Scheduled Tribes in the Explanation to section 36 did accord with its connotation in the Constitution. This is clear by express reference to Article 342 therein. We are, however, unable to see how this by itself affects the legislative competency of the State Legislature to expand its scope for the purposes of its own legislation as long as it does not come within the clutches of the Constitutional limitations. The Legislature must be deemed to be the judge of the people''s needs as also the remedies required to meet them. It has a duty to take such steps as are necessary to meet the situation. There is nothing wrong if the Legislature, on the data placed before it, felt it necessary to expand the definition and include also such tribes within the fold of the notified Scheduled Tribes who resided beyond the areas so notified. The deficiencies in the implementation of the two legislations were discovered only after the report of the Committee appointed for that purpose. In the very nature of things, there cannot be any fixed or static legislative notion as to who need protection and to what extent. The very fact that the founding father felt it necessary to vest power in the Parliament to amend first Presidential Order from time to time under a law, indicates how even such conception in the Constitution was expected to be flexible and responsive to the changing needs of the people. Amendment of the Code and the adoptions of the amended conception by the Act only reflects this practical responsive flexible attitude of the Legislature.
Mr. Chaudhari and Mr. Madkholkar then contend that the Code has not been included in the Ninth Schedule and validity of the definition of "Scheduled Tribes" as set out in the Explanation to section 36 of the Code cannot be said to be immune from the attack based on any provision of the Part HI of the Constitution, it is urged that the explanation to section 36 of the Code is void being violative of such provisions and consequently incorporation thereof in section 2 (j) of the Act is ineffective. It is unnecessary to express any opinion in this case whether the Explanation to section 36 or section 36 itself or any provisions of the Code in fact is so void. Even if it is assumed, that section 36 of the Code is so void, it still cannot affect the validity of section 2 (j) as long as the Act remains immune from such attack and the Act is not demonstrated to be void by testing the scheme of this Act, by reference to any of these Articles under Part III of the Constitution. Section 2 (j) of the Act no doubt incorporates the definition of "Scheduled Tribes" from the Explanation of section 36 of the Code and equates tribals with Scheduled Tribes. When once the definition is so imported from another Act, the definition becomes a part of the impugned Act itself as if the definition is written with the pen and ink in this Act. This is nothing short of creating a legal fiction of the existence of definition in the Act itself though in fact it does not exist but has every time to be assumed to be in existence and read by reference to the concerned enactment. It is then the validity of the definition so fictionally imported in section 2 (j), that is relevant and not the validity of the definition as set out in the Code. The validity thereof, if challenged, shall have to be tested as if it is a part and parcel of this enactment and not on the hypothesis that it happens to be the part of some other enactment Legal fictions of this nature shall continue to operate and be fully effective even if such other enactment happens to be repealed or even found to ultra vires on any ground. In this context Mr. Natu relied on the Supreme Court judgments in the cases of Deep Chand Vs. The State of Uttar Pradesh and Others, , Mahendra Lal Jaini Vs. The State of Uttar Pradesh and Others, , B. Shama Rao Vs. The Union Territory of Pondicherry, . According to Mr. Natu, invalidity of section 36 must result virtually in wiping out its reference in section 2 (j) of the Act, making section 2 (j) defective, meaningless, and rendering the Act itself ineffective. This contention is not sound for the reasons discussed earlier and runs counter to the ratio of the Supreme Court judgment in The State of Madhya Pradesh Vs. M.V. Narasimhan, . The cases relied on by Mr. Natu do not support any such contention. Thus even if it is assumed that Explanation of section 36 of the Code or section 36 itself is violative of any Article in Part III of the Constitution and, therefore, void, the same by itself cannot result either in the invalidity of section 2 (j) or notionally incorporated definition thereunder. Section 2 (j) or any other provision of the Act is immune from such attack due to its inclusion in the Ninth Schedule. In this view of the matter, the above contention is unacceptable.
Mr. Madkholkar also tried to make a distinction between recognising of a definition in one Act from the other Act and incorporating the same in the former from the latter. We are unable to see any distinction of substance between such device This apart, phraseology of section 2 (j) of the Act leaves no manner of doubt as to how it is a clear case of Legislature having virtually incorporated the Explanation of section 36 of the Code in section 2 (j) of the Act.
Mr. Daga, learned Advocate appearing for one of the petitioners, also tried to contend that on inclusion of the impugned Act in the Ninth Schedule, the Act itself becomes a part of the Constitution which necessitates according of definition of its "Scheduled Tribes" with contents of the Presidential Order under Article 342 of the Constitution. The contention is devoid of any merit. It is true that Ninth Schedule is a part of the Constitution. That, however, cannot make the Act so included as the part of the Constitution. As has been held in several cases, Ninth Schedule merely operates as an umbrella for immunizing the enactments so included in its fold, from the attack by reference to Part III of the Constitution. Identity of the enactment is never intended to be nor can ever, be said to have been merged either with the Schedule or with the Constitution. In fact, in that case it will cease to be a State legislation and would be beyond the amending power of the concerned Legislature.
Mr. Madkholkar drew our attention to a judgment of this Court in the case of Wasudeo v. Union of India through General Manager., S. E. Rly., Calcutta and others 1973 Mh. L J 994. The petitioner, an employee in the Eastern Railway administration therein happened to be a resident of Nagpur district and belonged to Halba community. Halba community seems to have been notified under Article 342, as a Scheduled Tribe under clause 2 of the Constitution Scheduled Tribes Order of 1950 in regard to few places in the State of Maharashtra excluding the district of Nagpur. The petitioner claimed preferential treatment on the basis of being a member of the Schedule Tribe in the matter of promotion, and relied on a certain State Government Circular treating Halba community to be member of the Scheduled Tribe for the whole of the State. The claim was rejected as it did not fit on with the Presidential Order under Article 342. We are unable to see how this judgment can be of any assistance to the petitioner in the present case. Patently the petitioner was claiming the special treatment on the strength of the Constitutional provisions under Part XVI of the Constitution. His claim obviously could stand or fall on whether he could be a member of Scheduled Tribes in terms of the Presidential Order. The State Circular obviously could not be of any avail to him in this context.
It was then urged that the legislation essentially being in regard to the relations between the Tribals and non-Tribals, the State Legislature has no competence to make such legislation Our attention was drawn to the three lists in the seventh Schedule to the Constitution and an attempt was made to demonstrate that none of the entries relate to the Tribals and non-Tribals, and in that case the legislation at best can be covered by the residuary entry in List I and the Central Legislature alone and not the State Legislature can claim to have competence to legislate on this subject. The learned Advocate-General, on the other hand, contends that this is essentially a legislation in regard to the land, rights in and over the land and transfers and alienations of lands. In this context, it is worthwhile, recalling what is mentioned in the preamble itself and discussed earlier. It is on the findings of the committee appointed to find how far the Code and the Tenancy legislations have failed to achieve the intended targets that the present Act has been enacted. In essence, therefore, the legislation is supplemental to what is sought to be provided in the Code and the relevant tenancy laws. In that view, the legislation is relatable to the same entry, namely, Entry 18 in the Second List, to which the Code and the relevant tenancy laws are held to be relatable in several judgments of this Court and the Supreme Court It is difficult to see how the legislation can be excluded from the purview of land, rights in and over the land and transfers and alienations of land. The fact that transfers between tribals and non-Tribals alone are dealt with does not alter the character of the legislation. Inquiry in regard to all such questions always has to be, if the enactment can be relatable to any entry and not whether the same cannot be so relatable by, emphasising some aspect or the other indicating the same to be non-relatable. Entries in the lists are required to be liberally and broadly construed, the constitutional intendment behind being merely indicating how the legislative powers should be exercised by the concerned Legislature. In this view of the matter, the contention of the learned Advocate appears to be without any substance.
Mr. Natu, the learned Advocate intervening with leave of the Court and Mr. Madkholkar then contended that the provisions of the impugned enactment are void as the Act happens to be a colourable piece of legislation. It is well settled that motives of the Legislature are irrelevant once competency to legislate is found to exist. Question of colourable exercise of the Legislature can arise when Legislature in effect and substance seeks to achieve object "A" but being incompetent to do so legislate, tries to achieve the same by pretending to achieve "B" object, to justify competency. Courts are not powerless to probe into the matter, tear the veil and strike down the Act for want of competency in such cases. The learned Advocates relied on the following features of the Act in support of their this contention.
(1) The Act seeks virtually to annul sales, indiscriminately without regard to whether the tribal transferor is in fact an agriculturist, backward, illiterate, needing or desirous to get back the land or is a victim of any fraud, or competent to personally cultivate the land and transferee also belongs to any prohibited class and is guilty of any objectionable conduct.
(2) The Collector is neither vested with any power to investigate into claims of any individual tribal, to such protection nor left with any discretion to refuse restoration where transferee and not the transferor needs protection.
(3) Annulment of transaction is made effective from the date of transaction when transferee could not even imagine that transferor would turn round and claim back possession after lands are improved.
(4) Transferees are themselves mostly poor small holders having invested their life''s saving in the lands purchased and become landless and lose source of livelihood.
(5) The Act does not contemplate return of even the full consideration paid and restoration is not made conditional on return of even whatever is made refundable.
(6) Since the enforcement of Berar Land Revenue Code in 1926 certain tribes were notified as protected and purchase of land from them was made ineffective without prior permission of the Revenue Officer. This scheme continued till the amendment of Explanation u/s 36 of the Code and enforcement of the Act. The Act denies protection to many of those tribes while extends to others without indication of the reasons in the Act.
Purchase of land from some of them when not even permission was necessary also is liable to be annulled by the Act. Mr. Natu drew our attention to relevant provisions and the list of the tribes produced thereunder and discrepancy now introduced.
We are, however, unable to see how any of these grounds can have any relevance in determining if the Act is a colourable piece of legislation and. therefore, lacks legislative competency. We have referred to the preamble and discussed the genesis of how the Legislature was prompted to enact the law to ensure the intended benefits of Code and the Tenancy laws for the tribals. Any such legislation is covered by Entry No. 18 in List II of the Seventh Schedule. No material is placed before us to demonstrate that this is not the real object but is just a pretence and some other object is being achieved under the guise of so benefitting the tribals. On the other band, tribals are known to be backward, illiterate and exposed to exploration and are known to be in need of protection. Chapter XVI of Constitution deals with special provisions for the representation, in Legislature, services and educational institution. It does not deal with any agrarian reforms and need of special treatment in the matter of land legislation. Presidential Order under Article 342 may furnish evidence of their general backwardness and yet may not be conclusive to their needs of protection in the matter of Tenancy legislation. Grounds suggested do not furnish any basis to doubt the legislative judgment in this behalf and are far too inadequate to raise any inference of recitals in the preamble being just a pretence. Such recitals cannot be doubted as pretence merely because, the actual implementation of the Act, results in hardships to the few or a few undeserving get benefits and the few deserving become losers and unintended victims. The circumstance that certain tribes alone were found deserving of protection from 1928 to 1975 and now some are dropped out and some are added by itself cannot be conclusive of the present mis judgment of the Legislature. The powers vested in the Collector reflect the legislative policy running through the Act. Inclusion of the Act in the Ninth Schedule makes it immune from some of the comments suggested in the above grounds. The contentions in this behalf thus are liable to be rejected.
Our attention was drawn to the notices issued by the Sub-Divisional Officer to the petitioners. It appears that the proceedings under the Act were initiated even before the rules in that behalf were promulgated. The result was that all such notices could not be issued in the prescribed forms. Fresh notices were also issued after the Rules were framed and forms were prescribed. Unfortunately the authorities issuing the notices have not taken care to ensure that irrelevant clauses are struck off and day, time and place of hearing are properly indicated in the notices. It is unnecessary to consider the effect of such non-compliance by the authorities. That the notices are defective admits of no doubt. Rule and stay in all these cases were granted when the enactment was not included in the Ninth Schedule and reasonable doubts existed in regard to the validity of the enactment. Now that rules are being discharged, it will be fit and proper that the officer concerned issues fresh notices in accordance with the rules framed in that behalf, ensuring that all the requirements of the Act and the Rules are properly complied with. We accordingly discharge the rule but direct the Sub-Divisional Officer to issue fresh notices in accordance with the provisions of the Act and the Rules in that behalf. In the circumstances of the case, there will be no order as to costs.