judgement:
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 & 3161 of 1970.
L.N. Sinha and section Madhusudan Rao for the Appellants.
T.S. Krishnamurthi Iyer, K. Ram Kumar and K. Ram Mohan for the Respondents.
Subodh Markandaya and Mrs. C. Markandaya for the interveners.
The Judgment of the Court was delivered by THAKKAR, J.
A challenge to the validity of a provision ' in so 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).
446 testing on the touchstone of constitutionality, the present appeals have been preferred by some of the unsuccessful original Writ Petitioners.
Some others have intervened upon their application for leave to intervene having been granted by this Court.
The appellants and the interveners have by and large reiterated 13 the same contentions before this Court in support of their plea that the impugned provision is unconstitutional as being violative of article 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 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 came into force, article 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.
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 in the scheduled areas from a member of scheduled tribes to non tribals without previous sanction of the State Government or subject to rules 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 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 article 133( l)(a) of the Constitution of India.
With effect from June 20. 1979.
447 extended to all parts of the State.
The result was that the Andhra Pradesh Scheduled Areas Land Transfer Regulations came to be extended 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 a Scheduled Tribe or a registered cooperative society 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 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 composed 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 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 tribal was previously acquired from a tribal or not, the said 1959 Regulation 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 interalia, the following changes, namely: (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; (ii) Transfers of land in Scheduled Areas in favour of non tribals shall be wholly prohibited in future; (iii) Non tribals holding lands in the Scheduled Areas shall be prohibited from transferring their lands in favour of persons 448 other than tribals.
Only partitions and devolution by succession of lands held by them shall be permitted; and (iv) Where a tribal or non tribal is unable to sell his land to a tribal on reasonable terms, it shall be open to him to surrender the land to Government who shall thereupon be obliged to acquire it on payment of appropriate compensation.
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 immovable 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 (1)(a) Notwithstanding anything in any enactment rule or law in force in the 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.
(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.
(c) Where a person intending to sell 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 Divisional 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 specified in Section 10 of the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961, (Act, X of 1961), and such land shall thereupon 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 as may be prescribed.] 449 Regulation No. 1 of 1970 inserts sub section (4) in Section 3 whereby '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 petition 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 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 permitted subject to certain conditions.
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 6 A. Section 6 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 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 the tribals, and some from the non tribals.
By the amending Regulation 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 Telengana region, and some of the Scheduled areas in the Andhra region.
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 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 contended by the State or whether it merely has a prospective operation as 450 held by the High Court does not fall for consideration in the present 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.
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 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 backdrop of which the compulsion to legislate was occasioned needs to be painted to enable the Court to approach in a meaningful manner the problem posed by the challenge rooted in the submission that these restrictions are unreasonable from the perspective 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 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 different Tribal communities.
The area was an inaccessible tract of land covered by forests and hills.
These tribal communities were in occupation of lands and lived by shifting cultivation and gathering whatever produce that was available.
The non tribals who arrived in these areas landed in the 19th Century in certain areas and the early 10th Century in certain 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 certain cases even 100 per cent.
The tribals who were tradi VINEET 451 tionally honest and who were simple in their thought and habits fell an easy prey to the schemes of the non tribals.
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 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.
The money lenders continued to be in occupation of most of 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 contravention of the Regulations protecting their rights.
The non tribals have been taking full advantage of their ignorance and exploited them and are continuing to exploit them.
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 many disturbances such as Ramparebellion in East Godavari in about 1899.
In comparatively recent times also in Adilabad district the tribals rebelled in 1941 as a result of alienation 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 would be restored to them and that the non tribals would be driven out.
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 started spreading to the plains areas also.
The tribal communities which went into the grip of revolutionaries were not able to extricate themselves out of their grip.
It is only after the tribals were promised by the Government that the land would be restored to them and the exploi 452 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 exploitation by non tribals peace would not have prevailed in the Scheduled Areas.
It was observed by several committees that the non tribals were able to find ways and means to circumvent the provisions of Regulation I of 1959 by entering into benami trans actions and other clandestine transactions with unsophisticated tribals.
It is absolutely necessary to create conditions for 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.
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 who 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 area.
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 tribals and they are in possession of the lands.
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 is only with a view to enforce the valid provisions of Regulation I of 1959, the Regulation viz., Regulation I of 1970 was made.
It is in the interests of the tribals and for their protection 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 achieved.
453 What has emerged from the additional counter filed by the State 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 scheduled area of Andhra Pradesh in respect of which the impugned legislation has been enacted.
It has been stated therein that more than 40 million Indians belong to tribal communities distinct 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 tribal 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 possibilities.
These population movements triggered a struggle for land in which aboriginal tribesmen were usually the losers and, deprived of their ancestral land, turned into impoverished, Ianndless labourers.
In this treatise the learned author has quoted the distressing forecast made by Nirad C. Chaudhari in his book 3 wherein he has lamented: "In an industralized India the destruction of the aboriginal 's life is as inevitable as the submergence of the Egyptian 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 simple extinction, which is not the worst of human destinies.
It is to be feard that the aboriginal 's last act will be squalid, instead of being tragic.
What will be seen with most regret will be not his disappearance 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 educational interest but they also require to be immunized from social injustice and exploitation.
The Founding Fathers of the Constitution of 1.
Tribes of India The Struggle for Survival (1982 83 edition) by Christoph von FurerHaimendorf.
Inside of front flap.
Inside of front flap.
The Continent of Circe.
454 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 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.
vs 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 cases where the lands had passed into the hands of the 'non tribals '.
Reference may also be made to Lingappa Pochanna Appelwar vs 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 passed into the hands of the 'non tribals '.
The problem presented in the present appeals is somewhat different 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 including 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(1)(f) of the Constitution of India.
It is alleged that the impugned provisions impose unreasonable restrictions on the 'non tribal ' holders of properties in the Scheduled areas.
1. article 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, 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) SCC P. 301 4.
1985(l)SCC 479. 455 The challenge rooted in Article 19(1)(f) cannot survive after the 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 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 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 question as to 'why ' 'how ' and in 'what manner ' the impugned provisions are branded as unreasonable: 1.
The prohibition imposed on the 'tribals ' restraining them 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.
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 '.
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 the 'non tribal ' being under economic compulsion to do so.
It is not possible to accede to any of the aforesaid submissions.
As highlighted earlier, originally 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 456 course of trade.
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 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 appellants whose economic interests may be prejudicially affected by the impugned provisions.
In other words, the Court examining the matter 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 restrictions are unreasonable.
As a matter of fact it would be unreasonable and unfair to hold that the impugned provisions are unreasonable on this account.
Surely it is not unreasonable to restore upto the 'tribals ' what originally belonged to them out of which they were deprived as a result of exploitative 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 cannot shut its eyes to the fact that the competition between the 'tribals ' and the 'non tribals ' partakes of the character of a race between a handicapped one legged person and an able bodied two legged person.
True, transfer by 'non tribals ' to 'non tribal would not diminish the pool.
It would maintain status quo.
But is it sufficient or fair enough to freeze the exploitative deprivation of the 'tribals ' and 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 '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 permitting, them to transfer the lands and structures, if any, raised on 457 such lands, to 'non tribals ' and make profits at the cost of the tribals.
It 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 non 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 to do so.
It must also be emphasized that to freeze the pool of lands available to the 'tribals ' at the present level is virtually to diminish the pool.
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 size of their pool if the same is frozen.
No unreasonableness therefore is involved in making the prohibition against transfer to '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 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.
It is precisely for this reason that the Architects of the Constitution have with farsight and foresight provided in paragraph 5(2) of Fifth Schedule that the Governor may make regulations inter alia "prohibiting or restricting the transfer of land in the scheduled areas notwithstanding any provision embodied in the Constitution 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(1)(c) thoughtfully provides even for the contingency of not being able to find a 'tribal ' willing or prepared to purchase the property.
This provision obliges the State Government to acquire the property on payment of compensation as provided therein.
One can envisage that some hardship would be occasioned to the owners to lands located in the scheduled areas.
But such hardship would operate equally on the 'tribals ' as well as the 'non tribals '.
Such hardship 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 cannot be condemned as unreasonable.
More so if the factor that the original acquisition by `non tribals ' from 'tribals ' was polluted by the sins of exploitation committed by the non tribals ' is not ignored.
458 The next submission is built on the premise that the impugned A provision does not permit the owner even to raise a loan on the security of the land owned by him.
The submission overlooks the amendment introduced by Section 3A(1)1 inserted by Regulation 1 of 1971.
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 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.
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 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 argument.
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 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. ' 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 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(1): Special provision in respect of mortgages without possession: Notwithstanding anything contained in this Regulation or in any enactment, rule or law inforce in the Agency tracts, (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 institution approved by the State Government.
2. 1959 Edition Vol.
p. 1053 by Earl Jowitt.
459 hence the maxim, Cujus est solum ejus est usque ad caelum et ad inferos; or, more curtly expressed, Cujus est solum A ejus est altum (Co .
4a)" "Words And Phrases Judicially Defined:1 The word 'land ' would be variously understood by different persons.
To a farmer the word 'land ' would not mean his farm buildings; to a lawyer the word would include every thing that was upon the land fixed immovably upon it.
Smith vs Richmond, , per Lord Halsbury, L.C., at p. 448." "The Law Lexicon:2 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 loopholes 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 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 to the properties.
This also accords with the rule of evidence, 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.
III 1y944 Edition p. 206. 2 .
By P. Ramanatha Aiyar Reprint Edition 1487
460 vide Section 106 of the Indian Evidence Act.
The tribals 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 fail.
The appeals must therefore fail and be dismissed.
No costs.
H.S.K. Appeals dismissed.

summary/full:
Section 3(1) of the Andhra Pradesh Scheduled Areas Land Transfer 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 Government.
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 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 from tribals and 'non tribals ' were affected by this amending Regulation of 1970.
They filed writ petitions in the High Court challenging this regulation being unconstitutional.
The High Court dismissed the writ petitions.
Hence these appeals by Certificate under Article 133(1)(a) of the Constitution.
The main contention of the appellants was that the impugned provisions were unconstitutional as being violative of Article 19(1)(f) of the Constitution as it obtained at the 444 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, ^ 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 tribals '.
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.
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 originally belonged to the 'tribals ' but which passed into the hands of 'non tribals ' in the aforesaid background certainly cannot be characterised 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 '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] The submission that 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 the 'non tribal ' being under economic compulsion to do so cannot be acceded to as it overlooks the amendment introduced by Sec.
3A(1) inserted by Regulation 1 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.
vs State of Karnataka, [1984] 3 SCC p. 301 and Lingappa Rochanna Appelwar vs State of Maharashtra. , referred to.
445 The argument that the expression 'Iand ' has been used in its 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 is a comprehensive expression which is wide enough to include structures, 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 by the Amending Regulation precisely to plug such loopholes and make the law really effective.
[.158C D; 459D E] The Dictionary of English Law, [19591 Edition Vol.
2 p. 1053 by Earl Jowitt; Words and Phrases Judicially Defined, By Roland Burrows Vol.
IlI 1944 Edition p. 206 and The Law Lexicon, By p. Ramanatha Aiyar Reprint Edition 1987 p. 700, referred to.


judgement:
ivil Appeal No. 4128 of 1988.
PG NO 961 From the Judgment and Order dated 3.8.1988 of the Bombay High Court in W.P. NO. 28 of 1987.
V.N. Ganpule and Mukul Mudgal for the Appellant.
A.S. Bhasme, B.R. Agarwala and Mrs. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
Special leave granted.
Heard learned Counsel for both the parties.
The appeal is directed against the judgment of the Bombay High Court whereby the High Court dismissed the writ petition of the appellant challenging, inter alia, the legality of the action of the respondents refusing to admit the appellant in the post graduate M.D. Course in Obstetrics and Gynaecology for the 1987 session.
The appellant passed the MBBS examination from the Kakatiya Medical College under the University of Kakatiya.
Warangal, in the State of Andhra Pradesh.
She obtained 72%, 66.63% and 67.5% marks in the first, second and third MBBS examinations.
She was awarded Governor 's Gold Medal by the State of Andhra Pradesh for her consistent high merit at the MBBS examinations.
In August, 1985, she completed her one year internship.
She married one Dr. Ashok Patwardhan, a Government Medical Officer working in the State of Maharashtra.
He was transferred to Solapur in January, 1985.
The appellant had to come to Solapur in October, 1985 and since then she has been residing there with her husband.
After coming to Solapur, she intended to prosecute her studies in the post graduate M.D. Degree Course in Obstetrics and Gynaecology in Dr. V.H. Medical College, Solapur, under the Shivaji University, the respondent No. 2.
Rules X(2) and (3) of the Rules regulating the appointments of Housemen and House Surgeons at the hospital attached to the Government Medical Colleges in the State of Maharashtra, hereinafter referred to as 'the Rules '.
provide as follows: "X. . . . . . . . . . . . . . . . . .
PG NO 962 Government have from time to time sanctioned supernu merary posts (1). . . . . . . . . . . . . (2) to allow spouses of Government servants on transfer to undertake studies, if standing high in merit (which means not less than 55% at first attempt in the subject) from another college; (3) to allow students of other colleges in Maharashtra to compete on merit for posts so as to conduct post graduate course for which facilities are not existant or very meagre in their own college.
These supernumerary posts should be awarded after fullest consideration of these principles in the above order and on merit and it is not incumbent to fill all of them or to reserve them . . . . . .
It is understood that granting of registration does not absolve a candidate from competing on merit and if he cannot earn post on merit, his registration would lapse for failure to compete housemanship requirements . . . ." The appellant made an application to the Government of Maharashtra praying for the creation of a Housepost in Obstetrics and Gynaecology under rule X(2) so as to enable her to do post graduate studies in Dr. V.M. Medical College, Solapur.
As she fulfilled and requirements of rule X(2), namely, that she is the wife of a Government servant on transfer and that she stood high in merit securing more than 55% marks in Obstetrics and Gynaecology in her MBBS examination, the Dean of the College specifically recommended her case for the creation of such a supernumerary Housepost.
While the application of the appellant was under consideration, the appellant was selected for a Housepost in Surgery in the said College.
She joined the Housepost in Surgery in January, ]986 and completed the same in July, 1986.
But, in order to be eligible for post graduate studies in Obstetrics and Gynaecology, she was to join another Housepost in Obstetrics and Gynaecology.
On July 2, 1986, the Government of Maharashtra in exercise of its power under rule X(2) created a Housepost in Obstetrics and Gynaecology with effect from July 15, 1986 specifically and categorically stating that the PG NO 963 supernumerary Housepost was created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur.
The Government resolution dated July 2, 1986 is extracted below: "Government hereby grants permission for creation of one supernumerary non stipendary post of Houseman with effect from 15.7.1986 for a period of six months at Dr. Vaishampayan Memorial Medical College, Solapur, to enable Dr. Mrs. S.A. Patwardhan to complete her Post Graduate Course in the subject of Gynaecology and Obstetrics.
Mrs. Patwardhan should join the said post within 10 days from 15.7.1986.
In the event of her not joining the said post will be treated as abolished.
By order and in the name of the Governor of Maharashtra.
Sd/ J.P. Budhwant Deputy Secretary Govt.
of Maharashtra" The Dean of the College called upon the appellant to join the Housepost and not to quit the same before completing the term inasmuch as the Housepost was specifically created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur.
The appellant joined the Housepost and duly completed the same.
The Dean of the College issued an advertisement inviting applications for the post graduate seats in various disciplines for January, 1987 batch.
The appellant made an application praying for the issuance of an application form for the M.D. Course in Obstetrics and Gynaecology, but no such form was issued to her.
In other words, the appellant was refused admission in the M.D. Course at Dr. V.M. Medical College, Solapur.
Being aggrieved by the action of the Dean of the College, the appellant filed a writ petition in the Bombay High Court.
The High Court, as stated already, dismissed the writ petition holding, inter alia, that no inference could be drawn that everybody who completed the house job was entitled to get admission to the post graduate course ipso PG NO 964 facto and that granting of registration for house job would not amount to admission to the post graduate course in a Medical College.
Hence this appeal.
There can be no doubt that there is no question of automatic admission in the post graduate course, simply because one has completed the house job or housemanship.
It is not the case of the appellant that as she completed the housemanship, she has acquired a right of automatic admission to the post graduate degree course in the said College.
Her complaint is that she was not even given an application form for the post graduate degree course.
The College authorities or the University did not at all consider her case for admission.
The High Court has not considered this aspect of the appellant 's case.
It is contended by the learned Counsel appearing on behalf of the respondents that in view of the provision in the Rules giving institutional preference in the matter of admission, the appellant could not be admitted.
The other ground that has been urged on behalf of the respondents is that as the appellant passed the MBBS examination from the Kakatiya University in the State of Andhra Pradesh and as there is failure on the part of the State of Andhra Pradesh to reciprocate with regard to reservation of 25% of the total number of seats in the matter of admission to post graduate degree course in Medical Science, the respondents were justified in refusing admission to the appellant.
So far as the first contention is concerned, we do not think that there is any merit in the same.
All the seats in the post graduate degree course in Obstetrics and Gynaecology are not reserved for the candidates passing the MBBS examination from the said Dr. V.M. Medical College, Solapur.
It is not disputed that certain percentage of seats are reserved for the students of the College.
But, no application form was issued to the appellant and, accordingly, the question of not admitting the appellant on the ground of institutional preference or institutional reservation of seats does not arise.
In our opinion, the first ground founded on institutional preference seems to be a mere plea.
The real ground for refusal to issue even an application form for admission to the appellant is the failure of reciprocity on the part of the State of Andhra Pradesh.
The State of Maharashtra, in our opinion, is entitled to refuse to admit any student passing the MBBS examination from any Medical College in the State of Andhra Pradesh, as that State has not reciprocated in the matter of admission to post graduate degree courses in Medical Colleges of that State.
But, in the facts and circumstances PG NO 965 of the present case, the respondents are not at all justified in refusing to admit the appellant in the postgraduate degree course.
The most glaring fact in this respect is that on the prayer of the appellant a supernumerary Housepost was created so as to enable the appellant to become eligible for the post graduate degree course.
It is not the case of the respondents that they were not aware of the fact that the appellant had passed her MBBS examination from a Medical College in the State of Andhra Pradesh.
Indeed, it has been categorically averred by the appellant that in her application for the creation of a supernumerary Housepost, she disclosed all facts including the fact of her passing the MBBS examination from the said Medical College in the State of Andhra Pradesh.
The State of Maharashtra after considering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant.
After the appellant had completed her house job and applied for the issuance of an application form for the post graduate degree course, she was refused an application form, presumably on the ground that she had passed her MBBS examination from a Medical College in the State of Andhra Pradesh.
In our opinion, the appellant could be refused at the very outset, that is to say, her application for creation of a supernumerary Housepost could be turned down on the ground of failure to observe reciprocity by the State of Andhra Pradesh.
But, after creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post graduate degree course the respondents, in our opinion, are not at all justified in refusing her even an application form and in not considering her case for admission to post graduate degree course, on the ground of failure of reciprocity by the Andhra Pradesh State.
We fail to understand how the College authorities and the Government could take this attitude so far as the appellant is concerned.
In our opinion, it was unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is not at all tenable in the facts and circumstances of the case.
It is not disputed that the appellant has all the requisite qualifications for admission in the post graduate degree course.
She applied to admission in the session commencing from January, 1987, but she was not admitted.
The 1988 sessions has also passed, as the appellant had to file a writ petition before the High Court of Bombay which, as noticed already, was dismissed by the High Court.
The appellant prays that she may be admitted in the post graduate course in Dr. V.M. Medical College in the 1989 session.
PG NO 966 The facts stated above reveal that the appellant has been harassed to a great extent.
She was misled by the fact of the creation of a supernumerary Housepost for her by the State of Maharashtra.
She has already lost two years of her academic career.
Normally, this Court does not interfere in the matter of admission of students in an educational institution.
Even if it interferes, it generally directs the authorities concerned to consider the question of admission in accordance with the rules of the institution.
But, in the peculiar facts and circumstances of the case, particularly the fact that the appellant had to lose two years of her academic career for no fault of hers, we direct the respondens to issue to her an application form for admission in the post graduate M.D. Course in Obstetrics and Gynaecology and we further direct that after the submission of the application form and compliance with other formalities by the appellant, she shall be admitted in the post graduate course in Obstetrics and Gynaecology in Dr. V.M. Medical College, Solapur, in the 1989 session, provided she is not otherwise unfit.
The learned Counsel appearing on behalf of the Indian Medical Council also supports the case of the appellant for her admission in the 1989 session.
The judgment of the High Court is set aside and the appeal is allowed.
There will, however, be no order as to costs.
M.L.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Rule X(2) of the Rules regulating the appointments of Housemen and House Surgeons at the hospitals attached to the Government Medical Colleges in the State of Maharashtra provides that the Government may sanction supernumerary posts to allow spouses of Government servants on transfer to undertake studies, if standing high in merit, from another college.
The appellant married to a Government Medical Officer working in the State of Maharashtra after having passed M.B.B.S. examination and completing one year internship from a college situated in the State of Andhra Pradesh.
On her application, the Government of Maharashtra in exercise of its power under rule X(2) created a Housepost in Obstetrics and Gynaecology w.e.f. July l5.
1986 specifically and categorically stating that the supernumerary Housepost was created to enable the appellant to complete her post graduate studies at Dr. V.M. Medical College, Solapur, respondent No. 2.
The appellant joined the Housepost and duly completed the same.
However, she was refused admission in the M.D. Course by respondent No.2 inasmuch as she was not even issued an application form.
Being aggrieved, she filed a writ petition in the High Court challenging the legality of the action of the respondent refusing to admit her in the said post graduate M.D. Course.
The High Court dismissed the writ petition holding, inter alia, that no inference could be drawn that everybody who completed the house job was entitled to get admission to the post graduate cousre ipso facto and that granting of registration for house job would not amount to admission to the post graduate course in a Medical College.
Hence this appeal by special leave.
Allowing the appeal, PG NO 959 PG NO 960 HELD: (l) All the seats in the post graduate degree course for Obstetrics and Gynaecology are not reserved for the candidates passing the M.B.B.S. examination from the said Dr. V.M. Medical College.
It is not disputed that certain percentage of seats are reserved for the students of the College.
But, no application form was issued to the appellant and accordingly, the question of not admitting the appellant on the ground of institutional preference or institutional reservation of seats does not arise.
[964F G] (2) The State of Maharashtra is entitled to refuse to admit any student passing the M.B.B.S. examination from any Medical College in the State of Andhra Pradesh as that State has not reciprocated in the matter of admission to post graduate degree courses in Medical Colleges of that State.
[964G H] (3) The State of Maharashtra after considering all facts and circumstances including the high merit of the appellant specifically created a supernumerary Housepost for the appellant.
After creating the supernumerary Housepost specifically for the appellant so as to enable her to become eligible for the post graduate degree course, the respondents are not at all justified in refusing her even an application form and in not considering her case for admission in the post graduate degree course on the ground of failure of reciprocity by the Andhra Pradesh State.
It was, therefore, unreasonable and unjust for the respondents to refuse admission to the appellant on a ground which is not at all tenable in the facts and circumstances of the cases.
[965C F] (4) Normally the Supreme Court does ot interfere in the matter of admission of students in an educational institution.
Even if it interferes.
it generally directs the authorities concerned to consider the question of admission in accordance with the rules of the institution.
But, in the peculiar facts and circumstances of the case, particularly the fact that the appellant had to lose two years of her academic career for no fault of hers, it is directed that the respondents shall issue to her an application form for admission in the post graduate M.D. Course in Obstetrics and Gynaecology and that alter the submission of the application form and compliance with other formalities by the appellant, she shall be admitted in the post graduate course in Obstetrics and Gynaecology in Dr. V.M. Medical College, Solapur, in the 1989 session, provided she is not otherwise unfit.
[966B D]


judgement:
: Criminal Appeal Nos. 422 424 of 1988.
From the Judgment and Order dated 12.2.1986 and 4.9.1986 from the High Court of Punjab and Haryana in Crl.
No. 5837 of 1985 and Crl.
No. 4488 and 2993 of 1986 respectively.
R.S. Suri for the Appellants.
M.R. Sharma, Kapil Sibal, M.C. Dhingra, T.S. Arora and Miss Kamini Jaiswal for Respondents.
PG NO 914 The Judgment of the Court was delivered by OJHA, J.
These appeals raise an identical question of law and can conveniently be decided by a common order.
Kailash Nath, respondent in Criminal appeal No. 422/88, was working as Executive Engineer in Public Works Department in the State of Punjab in the year 1979.
On various dates in that year, he placed orders for the purchase of sign boards which were required by the Department to avoid accidents on roads and for traffic safety.
The requisite sign boards were purchased in pursuance of the aforementioned orders.
In the year 1980 some complaints were received in the Department against the respondent pertaining to the purchase of the sign boards.
vigilance enquiry was instituted by the Vigilance Bureau to enquire into the complaints and ultimately a First Information Report was lodged on August 27, 1985 against the respondent under sub sections (1) and (2) of Section 5 of the Prevention of Corruption Act.
In the meantime, the respondent had retired from the post of Executive Engineer with effect from October 31, 1982.
The aforesaid First Information Report was challenged by the respondent in the High Court of Punjab and Haryana in Criminal miscellaneous No. 5837 M/85 on the ground that the same having been lodged about three years after his retirement and about six years after the event of purchase of sign boards in 1979 was in the teeth of Rule 2.2 of the Punjab Civil Service Rules, Volume II and consequently was liable to be quashed.
The plea raised by the respondent found favour with the High Court which relying on an earlier decision of that Court in Des Raj Singhal vs State of Punjab, quashed the First Information Report by its order dated February 12, 1986.
Mangal Singh Minhas, the respondent in Criminal Appeal Nos.
423 24/1988, was posted in the Industrial Supply Section of the Directorate of Industries where various types of raw materials including wax and import lincences are dealt with.
A First Information Report was lodged against the respondent on June 19, 1980.
It appears that the respondent applied in the High Court of Punjab and Haryana for quashing of the First Information Report on account of which challan could not be filed and it was only when the challenge to the First Information Report was repelled by the High Court that a challan was filed on August 28, 1985 In the meantime, the respondent retired as Superintendent, Directorate of Industries, Punjab, on September 30, 1983.
On the challan being filed the respondent again made an application in the High Court for quashing of the prosecution against him.
This prayer has been allowed by the PG NO 915 High Court by its order dated September 4, 1986 and the prosecution against the respondent has been quashed relying on the aforesaid decision in the case of Des Raj Singhal vs State of Punjab.
The present appeals have been filed by the State of Punjab against the aforesaid orders passed on the application of Kailash Nath and Mangal Singh Minhas respectively.
It has been urged by learned counsel for the appellant that Rule 2.2 of the Punjab Civil Service Rules has been misinterpreted by the High Court in holding that the said Rule placed an embargo on initiating judicial proceedings for prosecution of a government servant on the expiry of four years of the cause of action or the event referred to in the said rule and the High Court committed an error of law in taking the said view.
Learned counsel for the respondents, on the other hand, submitted that the view taken by the High Court was correct and in view of Rule 2.2 the First Information Report against Kailash Nath and the prosecution as against Mangal Singh Minhas were rightly quashed.
In order to appreciate the respective submissions made by learned counsel for the parties with regard to the scope and interpretation of Rule 2.2, it would be useful to extract the relevant portion of sub rule (b) of Rule 2.2.
It reads: "(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt.
if in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re employment after retirement.
Provided that: (1) . . (2) . . (3) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution: PG NO 916 Explanation: For the purpose of his rule.
(a) . . (b) a judicial proceeding shall be deemed to be instituted (i) in the case of a criminal proceedings on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance is made; . ." There is no dispute that Punjab Civil Service Rules have been framed by the Governor in exercise of the power conferred on him by Article 309 of the Constitution and that Rule 2.2 occurs in chapter II of Volume II of the Rules dealing with "Ordinary Pension".
It has been urged by the learned counsel for the appellant that keeping in view the scope of Article 309 as also the purpose of Rule 2.2, the said rule cannot be interpreted to be a rule placing an embargo on prosecution of a government servant on the expiry of a period of four years from the date of cause of action or event mentioned therein.
Having heard learned counsel for the parties, we find substance in the submission made by learned counsel for the appellant.
Article 309 empowers making of rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or any State.
On the plain language of Article 309, the proposition that any rule framed under this article has to be confined to recruitment and conditions of service of persons mentioned therein admits of no doubt.
The rule in question certainly does not purport to regulate recruitment .
The question which, therefore, presents itself for answer is whether the said rule if it is to be interpreted as one placing an embargo on institution of judicial proceedings as against a person referred to therein for prosecution in respect of a cause of action which arose or an event which took place more than four years before such institution, as has been held by the High Court can be treated to be a rule regulating the condition of service of such a person.
Learned counsel for the respondents asserts that the embargo aforesaid is a condition of service calculated to ensure a person mentioned in the said rule peace of mind after retirement.
According to learned counsel for the respondent every employer wants his employee to be efficient and to achieve this object, various incentives are given.
Consequently, according to learned counsel, an assurance to an employee that he shall not be prosecuted after his retirement, even though guilty of committing a grave misconduc or negligence during the PG NO 917 period of his service, after the lapse of a particular time which has been fixed in the instant case as four years would fall within the purview of "conditions of service" as contemplated by Article 309.
We find it difficult to agree with the submission.
As explained by this Court in State of Madhya Pradesh and Ors.
vs Shardul Singh, and reiterated in I.N. Subba Reddy vs Andhra University, ; the expression "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc.
In the normal course what falls within the purview of the term "conditions of service" may be classified as salary or wages including subsistance allowance during suspension, the periodical increments, pay scale, leave, provident fund, gratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation, deputation and disciplinary proceedings.
Whether or not a government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service.
Making a provision that a government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive.
It is likely to be an incentive not for efficient work but for committing offences including embezzlement and misappropriation by some of them at the fag end of their tenure of service and making an effort that the offence is not detected within the period prescribed for launching prosecution or manipulating delay in the matter of launching prosecution.
Further, instances are not wanting where a government servant may escape prosecution at the initial stage for want of evidence but during the course of prosecution of some other person evidence may be led or material may be produced which establishes complicity and guilt of such government servant.
By that time period prescribed, if any, for launching prosecution may have expired and in that event on account of such period having expired the government servant concerned would succeed in avoiding prosecution even though there may be sufficient evidence of an offence having been committed by him.
Such a situation, in our opinion, cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as a condition of service.
PG NO 918 There is another cogent ground on account of which the submission that giving a government servant peace of mind after his retirement in his old age can be a good ground to grant him immunity from prosecution cannot be accepted.
This would on the face of it be discriminatory and thus arbitrary inasmuch as if peace of mind in old age can be a good ground for immunity from prosecution for offences committed by a person, there seems to be no reason why such immunity may not be available to all old persons and should be confined only to government servants.
On the face of it, the government servants cannot constitute a class by themselves so as to bring their cases within the purview of reasonable classification, if the purpose of granting immunity from prosecution is ensuring peace of mind in old age.
Even on a plain reading of Rule 2.2, it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a government servant, if the conditions mentioned the rein are satisfied.
As seen above, Rule 2.2 is in chapter II of the Punjab Civil Service Rules which deals with ordinary pension.
There can be no manner of doubt that making provision with regard to pension falls within the purview of "conditions of service".
The embargo on prosecution spelt out by the High Court is not to be found in the main rule 2.2 but in the third proviso to the said rule.
It is the third proviso which enjoins that no judicial proceedings.
if not instituted while the officer was in service, whether before his retirement or during his re employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.
The scope of a proviso is well settled.
In M/s Ram Narain Sons Ltd. vs Asst.
Commissioner of Sales Tax and others, [1955]2 SCR 483, it was held: "It is a cardinal rule of interpretation that a proviso to a particular provision of statute only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.
" The same view was reiterated in Abdul Jabar Butt vs State of Jammu & Kashmir, ; where it was held that a proviso must be considered with relation to the principle matter to which it stands as a proviso.
PG NO 919 With regard to scope of a proviso, it was urged by the learned counsel for the respondents relying on the decision of this Court in Ishverlal Thakorelal Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367 that even though the proper function of a proviso is to except or qualify something enacted in the substantive clause which but for the proviso would be within that clause, there is no rule that the proviso must always be restricted to the ambit of the main enactment.
It may at times amount to a substantive provision.
This submission too does not advance the case of the respondent inasmuch as even if in a given case a proviso may amount to a substantive provision, making of such a substantive provision will have to be within the framework of Article 309.
If a rule containing an absolute or general embargo on prosecution of a government servant after his retirement for grave misconduct or negligence during the course of the service does not fall within the purview of laying down conditions of service under Article 309, such a provision cannot in the purported exercise of power under Article 309 be made by either incorporating it in the substantive clause of a rule or in the proviso thereto.
In view of what has been said above and keeping in mind the scope of rule making power under Article 309 of the Constitution, the third proviso to Rule 2.2 cannot be interpreted as laying down an absolute or general embargo on prosecution of government servant if the conditions stated therein are satisfied.
Even if on first impression the said rule may appear to be placing such an embargo it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring, it within the framework of its source of power without, of course, frustrating the purpose for which such provision was made.
Clause (b) of Rule 2.2 which can be called the substantive clause reserves to the government the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt.
if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re employment after retirement.
The purpose of the third proviso thereto is, as is the scope of a proviso, to carve out an exception to the right conferred on the government by the substantive clause if the conditions contemplated by the proviso are fulfilled.
This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if a government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years PG NO 920 before such institution the government will not be entitled to exercise the right conferred on it by the substantive provision contained in clause (b) with regard to pension of such a government servant.
The word "Such" in the beginning of the third proviso also supports this interpretation.
At this place, it may be pointed out that an analogous provision contained in Article 351 A of the Madras Pension Code came up for consideration before the Madras High Court in P. V. Venkatavardan vs The State of Tamil Nadu by the Deputy Superintendent of Police, Vigilance and Anti corruption, Vellore, [1979] 23 MLJ (Crl) 275.
Article 35 1 A in so far as it is relevant for the purpose of this case is reproduced hereunder: 351 A. Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re employment after retirement: Provided that: (a). . (b). . (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; .
A similar submission as has been made by the learned counsel for the respondents in the instant cases was made in the case of Venkatavardan, (supra) also.
section Natarajan, J. as his Lordship then was repelled the submission and held: "The other point urged was that as per Article 351 A of the Madras Pension Code, the right of the Government to PG NO 921 withhold the pension of a Government sevant will not cover events of grave misconduct or negligence committed by the government servant more than four years prior to the institution of the departmental proceedings.
As the offences alleged to have been committed by the petitioner are referable to the years 1968 and 1969, the petitioner contends, the filing of a charge sheet on 5th December, 1973 against him was beyond the period of four years contemplated under Article 351 A of the Madras Pension Code and, therefore, the proceedings were vitiated.
Even this contention must fail, for, a prosecution under section 161 and/or section 165, Indian Penal Code, read with section 5(1)(a) and 5(2) of the Prevention of Corruption Act, is not controlled or restricted or trammelled in any manner by the Madras Pension Code.
The provisions of the Pension Codemay, if at all, be relied on only for safeguarding the pension and cannot be pressed into service to defeat a prosecution on the threshold itself.
" The decision of this Court in State of Punjab vs Charan Singh, ; also throws some light on the principle involved in the instant cases.
In that case Rule 16.38 of the Punjab Police Rules 1934 came up for consideration.
The Punjab Police Rules laid down the procedure to be followed in imposing punishment on a Police Officer found guilty of misconduct or a criminal offence and made an exhaustive provision for departmental inquiries.
Rule i6.38 laid down the guidelines to be followed by the Superintendent of Police in dealing with a complaint about the commission of a criminal offence by a police officer in connection with his official relations with the public.
The respondent Charan Singh in that case was a police officer and was convicted and sentenced of an offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act.
His conviction as well as sentence was set aside and he was acquitted by the High Court on the ground that there was non compliance with the provisions of Rule 16.38.
Setting aside the order of acquittal and remanding the case to the High Court for fresh disposal in accordance with law, this Court held that Rule 16.38 was not designed to be a condition precedent to the launching of a prosecution in a Criminal Court; it was in the nature of instructions to the Department and was not meant to be of the nature of sanction or permission for a prosecution, nor could it overrid the provisions of the Code of Criminal Procedure and the Prevention of Corruption Act.
PG NO 922 We may also point out that the correctness of the judgment of the High Court of Punjab and Haryana in the case of Des Raj Singhal, (supra), relying upon which the orders appealed against in the instant cases have been passed, was challenged by the State of Punjab in this Court in Criminal Appeal No. 40 of 1987.
The question of law raised in the appeal was, however, not gone into and was left open to be decided in an appropriate case inasmuch as this Court on the facts of that case, in its order dated April 15, 1987 took the view that it would be a futile exercise to consider the question of law involved in the appeal for the reason that the respondent had retired as long as on December 13, 1979.
We now proceed to consider the other submissions made by learned counsel for the respondents.
It was urged that since government had the power to make suitable amendments even retrospectively in Rule 2.2 of the Punjab Civil Service Rules in order to bring home its intention, it was not open to it to challenge the validity of Rule 2.2.
Suffice it to say, so far as this submission is concerned that the purpose of the State of Punjab in filing these appeals is really to get the interpretation made by the High Court of Rule 2.2 reversed and to have the interpretation made by the Trial Court in the case of Des Raj Singhal, (supra) restored and not to get the said rule declared ultra vires.
It was also urged by the learned counsel for the respondents that the third proviso to clause (b) of Rule 2.2 as for the benefit of a government servant and virtually incorporates the principle underlying Article 21 of the Constitution by fixing four years as the limit for initiating prosecution.
In support of the submission reliance was placed on a full bench decision of the Patna High Court in Madhesh wardhari Singh and Another vs State of Bihar, AIR 1986 Patna Vol.
In that case, it was held that in all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution and it extends to all criminal proceedings for all offences generically irrespective of their nature.
It was also held that giving effect to fundamental right of a speedy public trial, therefore, would not in any way conflict with the provisions of the Code of Criminal Procedure and that unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in Court must at least be indicated by an outer limit to which an investigation and the trial in a criminal prosecution may ordinarily extend.
PG NO 923 We are informed that special leave has been granted by this Court against the aforesaid judgment and its correctness is thus sub judice.
That apart, even if the soundness of the principle that there should be speedy trial may not be disputed, the said principle cannot be invoked by the respondents in support of their interpretation of the third proviso to clause (b) of Rule 2.2 framed under Article 309 of the Constitution whose purpose, as already indicated above, is not to place an embargo on prosecution.
It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case.
It was then urged by the learned counsel for the respondents that the third proviso to clause (b) of Rule 2.2 is in the nature of a beneficent legislation and in case of doubt has to be interpreted in favour of the person for whose benefit the Rule has been framed.
In our opinion, keeping in view the scope of the power to frame a rule under Article 309 and the purpose of Rule 2.2, there is no doubt with regard to the interpretation of the said rule.
By applying the rule of interpretation with regard to a beneficent legislation, a benefit never intended to be conferred cannot be conferred.
Learned counsel for the respondents also submitted that the State enjoys plenary power in the matter of prosecution for an offence and if the Government in its wisdom thought it fit that a government servant after his retirement should not be be prosecuted for grave misconduct of action arose or the incident took place more than your years before the institution of judicial proceedings for prosecution, no exception can be taken to that power.
In this connection, apart form relying on various sections of the Code of Criminal Procedure such as sections 197,321,432,433 and 468 and the power of the Governor to grant pardon, learned counsel for the respondents also relied on Harold J. Laski 's "A Girammar Of Politics" for the proposition that every government has a power to decide not to prosecute or prosecution having been commenced to decide upon its discontinuance.
We are of opinion that this submission too does not help the respondents in these appeals for the simple reason that the third proviso to clause (b) of Rule 2.2 has not been framed for that purpose but has been framed for a different purpose namely to provide an exception to the power of the government in the matter of withholding or withdrawing etc.
of pension of a retired government servant contained in clause (b) of Rule 2.2.
PG NO 924 Lastely, it was urged by learned counsel for the respondents in these appeals that on the same principle on which criminal appeal No. 40 of 1987 in the matter of Des Raj Singhal, was dismissed these appeals also deserve to be dismissed.
So far as this submission is concerned, we find substance as regards the appeal against Kailash Nath.
The First Information Report in this case was lodged on 27th August, 1985, that is, after about six years of the accrual of the cause of action or taking place of the events which took place in 1979 and after about three years even from 3 1st October 1982 when the respondent retired from service.
Now in 1988 it would be pursuing a stale matter.
In this view of the matter, we are of the opinion that the order of the High Court quashing the First Information Report as against Kailash Nath, respondent in criminal appeal No. 422 of 1988, deserves to be maintained though on a different ground.
The facts of the case, with regard to Mangal Singh Minhas, respondent in Criminal Appeal Nos.
423 24 of 1988, however, are different.
In this case, as seen above, First Information Report was promptly lodged on June 19, 1980.
The filing of challan, however, was delayed on account of the steps taken by the respondent for getting the First Information Report quashed.
He retired about three years after lodging of the First Information Report and during the pendency of the proceedings in the High Court for quashing of the said First Information Report.
Since the High Court quashed the prosecution of Mangal Singh Minhas on one ground alone based on its earlier decision in the case of Des Raj singhal and did not consider other grounds, if any, that may have been raised by him for quashing of the prosecution, we are of the opinion that after setting aside the orders appealed against in this case, the High Court should be required to decide afresh the petition mde by Mangal Singh Minhas for quashing of the prosecution on grounds, if any, other than those which have already been considered above.
In view of the foregoing discussion, Criminal Appeal No. 422 of 1988 as against Kailash Nath is dismissed and the order quashing the First Information Report in his case is maintained even though on another ground; whereas Criminal Appeal Nos. 423 24 of 1988 as against Mangal Singh Minhas are allowed and the orders appealed against passed by the High Court as set aside.
The High Court shall however, decide the petition made by Mangal Singh Minhas afresh in accordance with law in the light of the observations made above.
R.S.S. Crl.
A No. 422/88 is dismissed and Crl.
A Nos. 423 24/88 is allowed.

summary/full:
On the basis of a vigilance enquiry against Kailash Nath, respondent, pertaining to the purchase of sign boards by him while working as Executive Engineer in the State Public Works Department, a First Information Report was lodged against him in August 1985.
The respondent challenged the F.I.R. in the High Court on the ground that the same having been lodged about three years after his retirement in October 1982 and about six years after the event of purchase in 1979.
was in the teeth of proviso (3) to Rule 2.2(b) of the Punjab Civil Service Rules, Volume II, which provided that no judicial proceedings if not instituted while the officer was in service, shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution.
The same ground was taken by Mangal Singh Minhas, respondent, when a challan was filed against him.
The High Court, relying on its earlier decision, quashed the First Information Report and the challan.
Dismissing the State appeal against Kailash Nath and allowing it against Mangal Singh Minhas, this Court, HELD: (1) Any rule framed under Article 309 has to be confined to recruitment and conditions of service of persons mentioned therein.[916E] (2) The expression "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it,in matters like pension etc.
PG NO 911 PG NO 912 (3) Rule 2.2.
is in Chapter II of the Punjab Civil Service Rules which deals with ordinary pension.
There can be no manner of doubt that making provision with regard to pension falls within the purview of "conditions of service".
[918D] (4) Whether or not a government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service.
[917D] (5) Even on a plain reading of Rule 2.2, it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a government servant, if the conditions mentioned therein are satisfied.
[918C] (6) Making a provision that a government servant, even if he is guilty of grave misconduct or negligence which constitutes an offencepunishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive.
[917D E] (7) On the face of it, the government servants cannot constitute a class by themselves so as to bring their case within the purview of reasonable classification, if the purpose of granting immunity from prosecution is ensuring peace of mind in old age.
[918B] (8) Even if in a given case a proviso may amount to a substantive provision, making of such a substantive provision, will have to be within the framework of Article 309.
If a rule containing an absolute or general embargo on prosecution of a government servant after his retirement for grave misconduct or negligence during the course of his service does not fall within the purview of laying down conditions of service under Article 309, such a provision cannot in the purported exercise of power under Article 309 be made by either incorporating it in the substantive clause of a rule or in the proviso thereto.
[919C D] (9) Even if on first impression Rule 2.2 may appear to be placing an embargo on prosecution it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the framework of its source of power, without, of course frustrating the purpose for which such provision was made.
This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if PG NO 913 a government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose or an event which took place more than four years before such institution the government will not be entitled to exercise the right conferred on it by the substantive provision contained in clause (b) with regard to pension of such a government servant.
The word "such" in the beginning of the third proviso also supports this interpretation.
[919D H;920A] (10) By applying the role of interpretation with regard to a beneficent legislation, a benefit never intended to be conferred cannot be conferred.
[923D] (11) It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case.
In this view of the matter.
the appeal against Kailash Nath is dismissed whereas the appeals against Mangal Singh Minhas are allowed.
[924F] Des Raj Singhal vs State of Punjab, ; State of Madhya Pradesh & Ors.
vs Shardul Singh, ; I.N. Subba Reddy vs Andhra University, ; ; M/s. Ram Narain Sons Ltd. vs Asstt.
Commissioner of Sales Tax and Others, ; ; Abdul Jabar Butt vs State of Jammu & Kashmir, ; ; Ishverlal Thanorelal Almaule vs Motibhai Nagjibhai [1966] 1 SCR 367; P.P. Venkatavardan vs The State of Tamil Nadu by the Deputy Superintendent of Police, Vigilance and Anti corruption Vellore, [1979] 23 MLJ (Crl.) 275; State of Punjab vs Charan Singh, ; ; Madhashwardhari Singh and Another vs State of Bihar, AIR (1986) Patna (Vol.73) page 324, referred to.