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2019 DIGILAW 311 (ORI)

Jami Ramesh v. State of Orissa

2019-04-12

K.R.MOHAPATRA, K.S.JHAVERI

body2019
JUDGMENT : K.S. Jhaveri, J. Since the issues involved in all the writ petitions are similar, as agreed upon by learned counsel for the parties, those are taken up together for analogous hearing and are disposed of by a common judgment. For the sake of convenience of discussion, W.P.(C) No.14733 of 2006 is taken up as the leading case. 2. By way of the writ petition, the petitioner has challenged the entire proceedings initiated in OSATIP Case Nos.1116 of 2005 to 1126 of 2005 and the final order dated 07.10.2006 (Annexure- 11) passed therein by the Sub-Collector, Jeypore-opposite party no.3, holding the transaction of land is fraudulent and reverting the same to the original tribal owners. The petitioner has also challenged the provisions under Section 3(1) and 3(B) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Amendment Regulation, 2000 (hereinafter referred to as "the Amendment Regulation, 2000") and has prayed to declare the same as ultravires to the Constitution of India. 3. The facts of the case as stated in the writ petition in a nutshell are that on 02.01.2003, the petitioner and his family members had purchased the case land from the vendors (general caste) and the case land was mutated in their names and the R.O.Rs were corrected accordingly vide Annexure-1 and 2 series. The vendors of the petitioner had originally purchased the case land from the tribal owners after obtaining due permission and following due procedure of laws as required under regulation 2/1956, from the then competent authority in the year 1984 to 1989. After purchasing the case land, the vendors mutated the same in their names and paid rent regularly. After mutation of case land, RORs were corrected vide Annexures-3 and 4, 5 & 6 series). Subsequently, on 25.3.2005, the case lands were sold by the petitioner and his family members to M/s. Sri Sai Rameswar Solvents Pvt. Ltd., represented by the petitioner as Managing Director and the lands were mutated in the name of the Company and R.O. Rs were corrected accordingly vide Annexures-7 & 8 series. Subsequently, on 25.3.2005, the case lands were sold by the petitioner and his family members to M/s. Sri Sai Rameswar Solvents Pvt. Ltd., represented by the petitioner as Managing Director and the lands were mutated in the name of the Company and R.O. Rs were corrected accordingly vide Annexures-7 & 8 series. However, on filing of information regarding details of purchase of land by the petitioner and his family members and occupation of land in the prescribed form (Form-2) supported by affidavit as required under Section 3-B of Amended Regulation 2000 under Annexure-9 series, the Sub-Collector, Jeypore initiated eleven cases against the petitioners i.e. OSATIP No.1116/05 to 1126/2005 and issued notice to appear on 06.06.2006, which was served on 07.06.2006 (Annexure-10 series). It is stated that on different dates the cases were taken up in the absence of the petitioners or without issuing notice to the petitioners. And finally, the Sub-Collector passed the impugned order dated 07.10.2006 at Annexure-11, reverting the case land to the original tribal owners. For ready reference, the said order dated 07.10.2006 is quoted hereunder: "The case is taken up today. I have examined Mangaru Kandha, Sukuru Kandha, Ramanidhi Samarath villagers of Murtahandi & Tima Kutuka, Rukuna Mahuka, Jami Mahuka, Indra Mahuka, Lima Nachika and Ketu Mahuka of Kachiakanadi village. All are related to the transactions of suit land. The statements of them are attached to the case record. From statements of all one thing revealed that Judhistir Samantray was a Contractor who motivated the tribals and tried to fetch a sizeable chunk of land in a single patch. For the same purpose he first purchased tribal lands in the name of Sadhaba Samaratha and later on could be able to regularize the same by obtaining permission. Sri Ramanidhi Samarath revealed that some land was also purchased in his name. Since the informant could not produce Sri Judhisir Samantray and the connected records. This could not be examined. But the fact is corroborated that the vendors and their legal heirs are aware of the fact that they knew only Judhistir Samantray and not Sadhab or Ramanidhi Samarath. This Sadhab Samarath belong to village Mrutahandi which is far away from village Majurmunda and he never posses, saw the land at any point o time. This could not be examined. But the fact is corroborated that the vendors and their legal heirs are aware of the fact that they knew only Judhistir Samantray and not Sadhab or Ramanidhi Samarath. This Sadhab Samarath belong to village Mrutahandi which is far away from village Majurmunda and he never posses, saw the land at any point o time. Besides, all the legal heirs of the deceased vendors including one living vendor Ketu Mahuka expressed that all they had no intension or necessity to sell away the land but were motivated by one VAW Sri Rao and other one medical staff who took them to different offices for execution of sale paper and permission order. It is also stated that they have not received the money in a single installment. Under the above circumstances, I hold that the entire transaction through which Sri Judhistir Samantray and his son took over tribal lands in village Majurmunda are all fraudulently taken. The Competent Authority has not shown due sincerity in examining the matte while sanctioning permission. Giving blanket order to tribal tenant to sell land to anybody is not as per the spirit of law. From no.1 provides that the Competent Authority should consult the prospective purchaser whether he is willing to pay the market value and whether it was actually paid. In many cases where enquiry is made the tribal tenants are honestly admitting the sale, but their statement reveals that there is difference between the price fixed by the Competent Authority and the price actually paid. The present informant defend in all the cases that since the deed has been executed and the DSR examines the payment, it would be deemed to have been paid. But this is not at all a fact. One common mistake has been committed that neither competent authority nor the DSR has actually ensured payment of the land cost. All the payment has happened behind the bank of C.A. and DSR. The tenants have been left to the bargain of the purchaser. In many cases the land was previously occupied by the purchaser and subsequently obtained permission. In almost all cases it is observed that the purchaser himself has motivated persuaded the tenant. It is a general tendency of the tribal tenants that they hardly purchase and sell land among themselves. The tenants have been left to the bargain of the purchaser. In many cases the land was previously occupied by the purchaser and subsequently obtained permission. In almost all cases it is observed that the purchaser himself has motivated persuaded the tenant. It is a general tendency of the tribal tenants that they hardly purchase and sell land among themselves. The grounds of application for permission in most of the cases are also common. It is either to repay hand loan, to purchase bullock or to repair the land. In some cases land has been sold to observe funeral and give their daughters in marriage. All of the above grounds are very weak grounds for the reason that repayment of hand loans encourages illegal money lending, in the availability of sufficient subsidized bank loans for purchase of bullocks and repair of land for which there is special ITDA to look after the matter. It is unfortunate to allow sell of the land for the purpose. There is no proof anywhere that bullocks were purchased and land was repaired. Lastly tribals receives wealth from the son-in-law but allowing land for daughters marriage is contradictory to this and against the spirit of law. On the above observation, I hold the land particulars notified in case No.1116 to 1126/05 are all fraudulent transaction and hence stand reverted." 4. Mr. C.A. Rao, learned Senior Counsel for the petitioners with reference to Section 3(1) of the Amendment Regulation, 2000, which was substituted in place of Section 3(1) of Regulation 2 of 1956, submits that it is completely restricting the transfer of immovable property by member of Schedule Tribe (for short ST) to a non-ST member except by way of mortgaging property by way of collateral security or otherwise, in favour of any public financial Institution for securing a financial assistance for any agricultural purpose, and further limiting the transfer of land, if any, within the ST community only and omitted the transfer by member of ST in favour of non-ST even with previous consent in writing of the competent authority and further restricted that the member of ST not to transfer any land if the total extent of the land remaining after the transfer will be reduced to less than "two acres" in case of irrigated land or "five acres" in case of the un-irrigated land. He has also taken us to the provisions under Section 3(B) of the Amendment Regulation, 2000. For ready reference, the said Section 3(1) and 3(B) of the Amendment Regulation, 2000 are reproduced hereunder: "3 (1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property by a member of a Scheduled Tribe, except by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any Agricultural purpose, shall be absolutely null and void and of no force or effect whatsoever, unless such transfer is made in favour of another member of a Scheduled Tribe: Provided that:- (i) nothing in this sub-section shall be construed as to permit any member of a Scheduled Tribe or his successor-in-interest to transfer any immovable property which was settled with such member of Scheduled Tribe by or under any authority of the State or the Central Government or under nay law for the time bring in force; (ii) in execution of any decree for realisation of the mortgage money, no property mortgaged as shall be sold in favour of any person not being a member of a Scheduled Tribe; and (iii) a member of a Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of un-irrigated land. Explanation-I:- For the purposes of this sub-section, a transfer of immovable property:- (a) in favour of a female member of a Scheduled Tribe, who is married to a person not belonging to any Scheduled Tribe, shall be deemed to be a transfer made in favour of a person not belonging to a Scheduled Tribe; and (b) shall include a transfer of immovable property to a person belonging to a Scheduled Tribe for consideration paid or provided by another person not belonging to any such Tribe. Explanation II:- For the purposes of Clause (iii) of the proviso, the expression "irrigated land" shall mean such land which is irrigated at least for one crop in a year and the expression "un-irrigated land" shall be construed accordingly. Explanation II:- For the purposes of Clause (iii) of the proviso, the expression "irrigated land" shall mean such land which is irrigated at least for one crop in a year and the expression "un-irrigated land" shall be construed accordingly. xxx xxx xxx xxx 3-B. Reversion of land of members of Scheduled Tribes, which was transferred by fraud.-(1) Every person who, on the date of commencement of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Amendment Regulation, 2000 (hereinafter referred to in this section as the Amendment Regulation of 2000), is in possession of agricultural land which belonged to a member of a Scheduled Tribe at any time during the period commencing on the 4th October, 1956 and ending on the date of commencement of the Amendment Regulation of 2000 shall, within two years of such commencement, notify to the Sub-Collector in such form and in such manner as may be prescribed; all the information as to how he has come in possession of such land. (2) If any person fails to notify the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall on the expiration of the period aforesaid, revert to the person to whom it originally belonged and if that person be dead, to his heirs. (3) On receipt of the information under sub-section (1), the Sub-Collector shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of Scheduled Tribe has been defrauded of his legitimate right shall declare the transaction null and void and:- (a) Where no building or structure has been erected on the agricultural land prior to such finding, pass an order revesting the agricultural land in the transferor and if he be dead, in his heirs; (b) where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act 1894 and order the person referred to in subsection (1) to pay to the transferor the difference, if any, between the price so fixed and the price actually paid to the transferor: Provided that where the building or structure has been erected after the commencement of the Amendment Regulation of 2000, the provisions of clause (b) shall not apply; Provided further that fixation of price under clause (b) shall be with reference to price on the date of registration of the case before the Sub-Collector." 4.1 It is submitted that the aforesaid provisions was newly added which came into effect w.e.f. 04.9.2002, calling upon the person in possession of Agricultural land, which belonged to a member of ST at any time during the period commencing 04.10.1956 and ending on the date of commencement of the Amendment Regulation, 2000 i.e. on 04.09.2002, shall within 2 years of such commencement, notify to the Sub-Collector in Form No.2, along with affidavit, all information as to how he has come in possession of such land. 4.2. The provision under amended Regulation 3(B)(2), contemplates that if any person fails to notify the information as required shall be presumed that he has been in possession of the land without any lawful authority and the lands shall be reverted to the person to whom it was belonged to originally. 4.3. 4.2. The provision under amended Regulation 3(B)(2), contemplates that if any person fails to notify the information as required shall be presumed that he has been in possession of the land without any lawful authority and the lands shall be reverted to the person to whom it was belonged to originally. 4.3. It is further submitted that under sub-clause (3) of Section 3(B), after getting information under sub-clause (1) of Section 3(B), the Sub-Collector was empowered to make enquiry about all such transaction of transfer i.e. the period from 04.10.1956 to 04.09.2002 and if he finds that the ST member has been defrauded, shall declare the transaction null and void. 5. Learned counsel for the petitioners further contended that all the amendments are prospective and where it was never intended to give retrospective operation of law unlike Regulation 7(D), a separate Miscellaneous provision of Regulation, which was promulgated by the Governor under sub-Clause (2) of Clause-5 of 5th Schedule of the Constitution, as in "OSATIP (By Schedule Tribes) Miscellaneous Provisions Regulations, 1976". 6. In support of his contention that all amendments/regulations are prospective in nature, unless it is specifically stated in said Regulation/Acts or by necessary implication to make it retrospective, he has relied upon relevant parts of some decisions of Hon’ble the Apex Court and other Courts, which are quoted hereunder: i. Relevant part of Paragraph-7 of Keshavan Madhava Menon v. The State of Bombay, AIR 1951 SC 128 : "7. xxx Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. xxx" ii. Paragraphs-21 to 24 and 31 of Defedar Niranjan Singh and another v. Custodian, Evacuee Property (Pb) and another, AIR 1961 SC 1425 : "21. The third contention is based upon the assumption that the order of the Custodian dated June 6, 1949, by the process of fiction shall be deemed to be an order made by the Custodian in exercise of the powers conferred on him by Ordinance No. XXVII of 1949. As we have already indicated at an earlier stage of our judgment, the order of a Custodian under that Ordinance was subject to an appeal under s. 25 thereof to the District Judge designated in that behalf by the Provincial Government. The order of the District Judge on appeal was subject to revision by the Custodian-General under s. 27. As we have already indicated at an earlier stage of our judgment, the order of a Custodian under that Ordinance was subject to an appeal under s. 25 thereof to the District Judge designated in that behalf by the Provincial Government. The order of the District Judge on appeal was subject to revision by the Custodian-General under s. 27. Subject to the said provision, the order of the Custodian was final under s. 28. In the present case, no appeal was filed against the order of the Custodian to the District Judge and, therefore, the said order had become final under s. 28. To put it in other words, by operation of the provisions of the said Ordinance the order of the Custodian made under Ordinance No. IX of 2004 but deemed to have been made under Ordinance No. XXVII of 1949 had become final. What then was the effect of the repeal of that Ordinance by the Act of 1950? We have already noticed the provisions of s. 58 which repealed the said Ordinance and which also made certain savings in respect of acts done tinder the Ordinance. Sub-s. (3) of s. 58 dealing with the said savings, as we have stated when considering the history of the legislation, is in two parts. The first part says that the repeal by the Act of the said Ordinance shall not affect the previous operation of the said Ordinance; and the second part says that anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action taken. The second part is expressly made subject to the first part. If a case falls under the first part, the, second part does not apply to it. In the present case under the previous operation of the Ordinance the order of the Custodian had become final. If so, the fiction introduced in the second part could only operate on that order subject to the finality it had acquired under that Ordinance. (22) xxx. The section does not expressly affect a vested right of a person in whose favour there was a final determination under the Ordinance. If so, the fiction introduced in the second part could only operate on that order subject to the finality it had acquired under that Ordinance. (22) xxx. The section does not expressly affect a vested right of a person in whose favour there was a final determination under the Ordinance. Nor does the section imply such retroactivity by necessary intendment. An order which had become final under the Ordinance could be deemed to be an order under the Act without disgorging itself of the attribute of finality acquired by it under the repealed Ordinance. xxx. (23) After stating the principle, the Judicial Committee made the following remarks in respect of the question that arose in that case: "Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality Orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect." (24) We respectfully accept the said principle as laying down the correct law on the subject. If so, by the same parity of reasoning, we must hold in the present case that the order of the custodian which had become final under Ordinance No. XXVII of 1949, could not be affected retrospectively under s. 58(3) of the Act so as to deprive the order of the Custodian of the finality it had acquired under the said Ordinance. Not only the said provision does not contain any positive indication giving it such. retroactivity but also in express terms it saves the previous operation of that Ordinance. 31. Nor do we find any force in the argument of learned counsel for the State that under s. 27 of the Act, the Custodian- General may at any time revise the order of any Custodian and, therefore, the Custodian-General can revise without any limit of time any order made by any Custodian under any previous law. Section 27 of the Act can be given retrospective operation only to the extent permitted bys. 58(3) of the Act. Section 27 of the Act can be given retrospective operation only to the extent permitted bys. 58(3) of the Act. We have held that s. 58(3) does not affect the previous operation of the law and therefore cannot affect the finality of the orders made under the Ordinance. So the words in the section "any time" or "any Custodian" must necessarily be confined only to orders of any one of the Custodians defined in the Act and to orders of Custodians deemed to have been made under the Act but had not become final before the Act came into force. iii. Paragraphs-20, 23 and 24 of Deputy Collector & Another v. S. Venkata Ramanaiah and another, AIR 1996 SC 224 : "20. Even though the aforesaid provisions of the Regulations represent a species of welfare legislation for protecting the illiterate tribals from exploitation at the hands of non-tribals the short question which arises for our consideration is as to whether these beneficial provisions have any retrospective effect. 23. xxx. Therefore, we agree with the submission of Mr Bobde, learned counsel for respondents, that the provisions of Section 3(1) of the Regulation are purely prospective in nature and do not affect past transactions of transfers effected between tribals and non-tribals or between non-tribals and non- tribals themselves in the Agency Tracts at a time when neither Regulation I of 1959 nor Regulation II of 1963 or Regulation I of 1970 was in force. Such past transactions remained untouched by the sweep of the aforesaid subsequently enacted Regulations. 24. xxx. Section 3(1) of the Regulation cannot be supported on the ratio of that judgment to nullify vested rights under past completed transactions. As we have already discussed earlier. Section 3(1)(a) read with Section 3(2)(a) of the Regulation seeks to hit only those transfers of lands in Agency tracts which take place after the advent of Section 3(1)(a) of the Regulation. Possessions under transfers which are beyond the sweep of Section 3(1)(a) cannot be said to have continued under any invalid transfers as envisaged by Section 3(1)(a). Such possessions obtained under the then existing old and valid transfers would be outside the ken of the Regulation itself. The alternative submission canvassed by learned senior counsel for the authorities, therefore, also has no substance and has got to be rejected." iv. Such possessions obtained under the then existing old and valid transfers would be outside the ken of the Regulation itself. The alternative submission canvassed by learned senior counsel for the authorities, therefore, also has no substance and has got to be rejected." iv. Paragraphs-5 and 6 of Bhubaneswar Prasad Singh Deo v. State of Orissa and Others, AIR 1983 Orissa 159: "5. xxx. Ordinarily, every Act is prospective in operation. There can be no dispute that the paramount Legislature has plenary power to make retroactive and retrospective legislation and even affect vested rights. Where, however, the Legislature does not clearly intend or the provisions by necessary implication do not give retrospective operation to the legislation, the Courts are unanimous in giving prospective operation to the law. (See, Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128 : Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 and Arjan Singh v. State of Punjab, AIR 1970 SC 703 ). 6. Though the present definition of 'Family' was inserted into the Act with effect from Sept. 29, 1973, 26th of Sept. 1970 has been provided as the relevant date with a view to not permitting manipulations or arrangements by which the purpose of the Act would be defeated. This is a well-known device. We may refer to the Orissa Estates Abolition Act of 1951. Though the law came into existence in 1951, the relevant date for several purposes has been taken as January, 1946. Obviously the legislative intention seems to be that partition beyond 26th of Sept., 1970, would not be acted upon. This is a well-known device. We may refer to the Orissa Estates Abolition Act of 1951. Though the law came into existence in 1951, the relevant date for several purposes has been taken as January, 1946. Obviously the legislative intention seems to be that partition beyond 26th of Sept., 1970, would not be acted upon. We are of the opinion that in the absence of any express provision or indication of intention by necessary intendment that the definition would be so construed as to take away existing rights, it should be so interpreted that it would not operate prior to the Act came into force and partitions which had taken effect earlier than the Act have to be accepted and given effect to; otherwise, the consequences would be serious and far-reaching; for instance, a man of the age of sixty who had chosen to remain a bachelor, and had separated from the family four scores of years back, would be brought into the fold of 'family' and land held by him would be put into the hotchpot for determining the ceiling in the hands of his father or mother who may be living. Such a position could not have been contemplated by the legislature. We find support for our view from an unreported judgment of this Court in the case of Jayakrishna Singh Rai v. State of Orissa (O.J.Cs. No. 1050 and No. 1087 of 1976, disposed of on 20-9-1978). We also agree with the contention of the petitioner that the Revenue Officer is not entitled to initiate a proceeding against the mother and take into account the properties of the separated son when both are independent landholders prior to the Act." v. Paragraph-4 of the decision rendered in Arjan Singh and another v. The State of Punjab and others, AIR 1970 SC 703 : "4. It is, a well settled rule of construction that no provision in a statute should be given retrospective effect unless the legislature by express terms or by necessary implication has made it retrospective and that where a provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended." vi. Paragraph-15 of The Godavari Sugar Mills Ltd., v. S.B. Kamble and Others, AIR 1975 SC 1193 : "15. Paragraph-15 of The Godavari Sugar Mills Ltd., v. S.B. Kamble and Others, AIR 1975 SC 1193 : "15. The protection and immunity afforded by Article 31b is, however, restricted to the provisions of the Act or Regulation as they exist on the date the Act or Regulation is included in the Ninth Schedule. The inclusion of the Act and Regulation would protect not only the principal Act or Regulation which is included in the Ninth Schedule but also the amendments which have been made therein till the date of its inclusion in the Ninth Schedule, even though the constitutional amendment by which the Act or Regulation is included in the Ninth Schedule refers only to the principal Act and Regulation and not to the amendments thereof. The protection or immunity enjoyed by the Act or Regulation, including the amendments thereof till the date of its inclusion in the Ninth Schedule would not, however, extend to the amendments made in the Act or Regulation after the date of its inclusion in the Ninth Schedule. The reason for that is that the inclusion of an Act or Regulation in the Ninth Schedule can be brought about only by means of an amendment of the Constitution. The amendment of the Constitution can be carried out in accordance with Article 368 of the Constitution. Such a power is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendment under article 368, viz., the prescribed majority in each House of Parliament. Such a power can be exercised in respect of an existing Act or Regulation of which the provisions can be scrutinized before it is inserted in the Ninth Schedule. It is for the prescribed majority in each House to decide whether a particular Act or Regulation should be inserted in the Ninth Schedule, and if so, whether it should be so inserted in its entirety or partly, In case the protection afforded by Article 31b is extended to amendments made in an Act or Regulation subsequent to its inclusion in the Ninth Schedule, the result would be that even those provisions would enjoy the protection which were never scrutinized and could not in the very nature of things have been scrutinized by the prescribed majority vested with the power of amending the Constitution. It would, indeed, be tantamount to giving a power to the State legislature to amend the Constitution in such a way as would enlarge the contents of Ninth Schedule to the Constitution." vii. Paragraph-2 of the decision of The State of Orissa v. Chandrasekhar Singh Bhoi, AIR 1970 SC 398 : "2. xxx. The amending Act passed after the enactment of the Constitution (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of Article 31-B. xxx." viii. Paragraph-8 of I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu, AIR 2007 SC 861 : "8. The High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void." 6.1 He, therefore, contended that by introduction of provisions of Section 3(B) of the Amendment Regulation, 2000, the transaction taken place right from the year 1956, information of which directed to be furnished within two years of commencement of the Amendment Regulation, 2000, is sought to be disturbed. There is no nexus between the amendment and object to be achieved by such amendment. 7. There is no nexus between the amendment and object to be achieved by such amendment. 7. He further contended that in view of the decisions referred hereinabove, the provisions under Section 3(B) of the Amendment Regulations, 2000 is required to be clarified by this Court that the same will have prospective effect from the date of publication of the notification and will be applicable to the transactions made on or after the date of publication and as such, the authority concerned may be directed to consider the case of the petitioners afresh taking into consideration that the amendments made in the Amendment Regulation, 2000, will have prospective effects. 8. Mr. B.P. Pradhan, learned A.G.A. for the State-opposite parties, on the other hand, while justifying the amendment made under the provisions under Section 3(B) of the Amendment Regulation, 2000 has stated that the same is applicable only in a case where fraud is committed in transferring a land from a tribal owner, who has no knowledge about the law of transfer and they are being exploited looking at their conditions. 9. In support of such submission, he has strongly relied upon the decision of the Apex Court in Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others, 2004 (II) OLR SC 117. Relevant paragraph-24 of the said judgment which he has relied upon is as under: "24. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are conferred with a right to hold land, which right is inalienable in favour of non-tribals. It is clear that the law does not permit a right in immovable property vesting in a tribal to be transferred in favour of or acquired by a non-tribal, unless permitted by the previous sanction of a competent authority. The definition of 'transfer of immovable property' has been coined in the widest possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, conspicuously employs the expression - "any other dealing with such property", which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word 'dealing' is suggestive of the legislative intent that not only a transfer as such but any dealing with such property (though such dealing may not, in law, amount to transfer), is sought to be included within the meaning of the expression. Such 'dealing' may be a voluntary act on the part of the tribal or may amount to a 'dealing' because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a non-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to 'dealing' by him with such property, and hence a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3A of the 1956 Regulations for evicting any unauthorized occupant, by way of trespass or otherwise, of any immovable property of the member of the Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3A. The prescription of the period of 12 years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of Limitation Act nor Section 27 thereof would be attracted." He, therefore, contended that the very purpose of the amendment is to protect the interest of the people of ST community. As such, there is no illegality in making the amendment retrospective. 10. To such an action neither Article 65 of Limitation Act nor Section 27 thereof would be attracted." He, therefore, contended that the very purpose of the amendment is to protect the interest of the people of ST community. As such, there is no illegality in making the amendment retrospective. 10. We have heard learned counsel for the parties. 11. In view of the decision of the Hon’ble Supreme Court referred hereinabove and the well settled principle of law that any amendment made to the Act, will have a prospective effect, unless it is expressly provided or by necessary implications, make it retrospective. On perusal of the amended Regulation, 2000, it appears that there is no express provision making it applicable retrospectively. On the other hand, the amending Regulation makes it clear that it will come into effect from the date of publication. Further, the language of the amending provision which empowers the authority to re-open all transactions right from 1956, even in absence of allegation of fraud, does not make it clear the object to be achieved by such amendment. If the amended provision is allowed to operate retrospectively, it would make the persons belonging to non-ST community to face unnecessary litigations putting their vested right over the property at stake and making it vulnerable. The same is never the intention of the impugned amendment and cant be. 12. In that view of the matter, we are of the considered opinion that the amendment which is brought into as Section 3(B) of the Amendment Regulation, 2000, cannot have a retrospective effect and as such, the same will have a prospective effect. It will be applied to the transactions made on or after the date of publication i.e. 04.09.2002 and the transaction which took place prior thereto, will not be affected, in any manner by the provisions of Amendment Regulation, 2000. 13. In view of the above, we think it proper to direct the authority concerned to reconsider cases of the respective petitioners in the writ petitions and pass appropriate order keeping in mind the observations made above, after giving due opportunity of being heard to each of the petitioner and allow them to file reply. Accordingly, we pass the following order: Order 1. We clarified that the Amendment Regulation, 2000 will have a prospective effect. 2. Accordingly, we pass the following order: Order 1. We clarified that the Amendment Regulation, 2000 will have a prospective effect. 2. The impugned order passed on the basis of the Amendment Regulation, 2000 is required to be set aside and the same is accordingly set aside. 3. The matter is remitted back to the authority concerned and the petitioners are directed to appear before the concerned authority in the first week of June, 2019 and file their replies. The authority will consider and decide the matter within six months from the date of receipt of such replies. 4. The possession of the petitioners will not be disturbed till the matter is heard by the authority. However, we dont express any opinion on Section 3(1) of the Amendment Regulation, 2000. Accordingly, all the writ petitions are disposed of.