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3. The Schedule to the Maharashtra Felling of Trees (Regulation) Act, 1964 setting out the variety of trees which attracted the prohibition under the Act was amended and some more variety of trees were brought within its ambit. On July 16, 1974 the Maharashtra Sale of Trees by Occupants belonging to Scheduled Tribes (Regulation) Act, 1969 was further amended by Maharashtra Act No. XXXI of 1974 and section 5 was deleted. The result of the deletion of section 5 was that the occupant could not enter into agreement for sale of trees after the appointed day, and the occupant can sell the trees only in accordance with section 6, that is through the intervention of the Forest Officer. The power to grant permission was initially conferred on the Collector, but subsequently it was transferred in favour of the Divisional Forest Officer to enable expeditions disposal of the applications filed by the purchasers or the occupants for sale of trees. The amending Act providing for deletion of section 5 of the 1969 Act was challenged by some of the purchasers by filing petition under Article 226 of the Constitution of India in this Court and the petition was numbered as Special Civil Application No. 1553 of 1974. Several contentions were raised in that petition, including that the amending Act No. XXXI of 1974 not having received the assent of the President could not override the provisions of the Indian Contract Act, which is the Central Act and consequently the amending Act is required to be struck down. The petition was heard by Division Bench consisting of Mr. Justice Vimadalal and Justice Sapre. Mr. Justice Vimadalal held that the amending Act of 1974 which deleted section 5 of the 1969 Act required assent of the President under Article 254(2) of the Constitution of India and in absence thereof the amending Act XXXI of 1974 was invalid. Mr. Justice Vimadalal further held that the amending Act XXXI of 1974 effects changes which are repugnant to the Indian Contract Act and therefore void under Article 254(1) of the constitution. Mr. Justice Vimadalal accordingly made the petition absolute. Mr. Justice Sapre delivered differing judgment and dismissed the petition, through the learned Judge did not differ with Justice Vimadalal on the question of requirement of Article 254 of the Constitution. The petition was then placed before a third Judge, Mr. Justice Deshmukh, as he then was, and the learned Judge substantially agreed with the view of Justice Vimadalal. The petition was then placed before the Division Bench of Justice Vimadalal and Justice Sapre and in accordance with the majority opinion the reliefs sought in the petition were granted. While the petition was being argued before Mr. Justice Deshmukh, it was contended that the reliefs in the petition should be moulded by taking into consideration the provisions of the amending Act No. XXXII which amended Act No. 29 of 1975, that is the Maharashtra Private Forests (Acquisition) Act, 1975. Mr. Justice Deshmukh declined to accede to the request as the reference was only in respect of difference of views between justice Vimadalal and Justice Sapre. After the opinion of Mr. Justice Deshmukh was available, it was again contended before the Bench consisting Mr. Justice Vimadalal and Mr. Justice Sapre that the reliefs should be moulded by taking into consideration the provisions of amending Act No. LXXII of 1975 amending Maharashtra Private Forests (Acquisition) Act, 1975. The Division Bench declined to accede to the request and delivered the final order on March 8, 1976 in accordance with the opinion of the majority.

The plain reading of the Entry makes it clear that contracts relating to agricultural lands are excluded from the ambit of Entry 7. Entry No. 18 in List II---State List, reads as under :

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

Article 254(2) of the Constitution provides that where a law which is made by the legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of the Central Act, then the law so made by the legislature requires assent of the President of India. Article 254(1) of the Constitution provides that if such assent is not secured, then the Central Act shall prevail and the law made by the legislature of the State shall to the extent of the repugnancy be void. Relying on the provisions, it was contended that the parent Act as well as the amending Act cover subjects which fall under Entry No. 7 in the Concurrent List and therefore as the impugned Act encroaches upon the subject of Central Act, it required prior assent of the President. It is not possible to accede to the submission of the learned Counsel for more than one reason. In the first instance, the submission that the amending Act is repugnant to the provisions of the Contract Act is not correct. Shri Chinoy, submitted that the Contract Act provides for these cases (i) entering into contract, (ii) performance and (iii) breach and its consequences. It was urged that the amending Act by deletion of section 4 of 1969 Act prescribes for non-enforcement of the subsisting contract and consequently trenches upon the matter which falls within an Entry in the Concurrent List. The submission overlooks that the parent Act by section 3 had prescribed that no occupant shall after March 3, 1969 sell any trees except with the permission and assistance of the Collector. The parent Act took away the right of the occupant, that is the person belonging to the Scheduled Tribe, to enter into contract for sale of the trees without prior permission or assistance of the Collector. To this total prohibition an exception is carved out by section 4 and subsisting contracts on March 3, 1969 were protected provided the Collector approves of such contract. The approval was to be granted on condition that the contracts were voluntary and the consideration was adequate. The performance of the contracts which were subsisting on March 3, 1969 were expected to be fulfilled or carried out within the reasonable time and section 4 was clearly a transitory provision. Indeed section 3 had trenched upon the right of the tribal to enter into contract in respect of sale of the trees and performance of the contracts prior to the appointed day were permitted subject to the approval of the Collector. The contention that withdrawal or deletion of section 4 after the period of 20 years amounts to trenching upon the provisions of the Contract Act is not correct. Entry 18 in List II enables the State Legislature to enact legislation on the subject of the land, that is rights in or over the land. It is now well settled by catena of decisions of the Supreme Court that the entries in the Schedule should be interpreted liberally and if the State Legislature has right to legislate on a particular subject, then such right includes right to legislate on the incidental or subsidiary subject. In our judgment, as the State Legislature is competent to legislate on the subject of land, including rights in or over the land, the parent Act as well as the amending Act did not override or trench upon the provisions of the Contract Act. While regulating the subject of land and the rights in or over the land, it was open for the State Legislature to provide that certain contracts should not be enforced or enforcement should be regulated. Such incidental or subsidiary exercise of power cannot be termed as 'imposition and restriction on freedom of contract' provided by the Contract Act. It is now well settled that a legislation is valid even though it might incidentally trench upon a matter which falls within an entry in another list. The pith and substance test has been applied by the Supreme Court in numerous cases and the pith and substance of the parent Act as well as the amending Act, in our judgment, does not impose restriction on freedom of contract as provided by the Contract Act, but merely regulates the right to entry into contract and enforcement thereof in respect of trees on the land held by a tribal. It is therefore, futile to suggest that the Parent Act or the Amending Act are repugnant to the Indian Contract Act and are therefore, void under Article 254(1) of the Constitution.

The second aspect of the matter is that even assuming that there is repugnancy and the parent Act and the amending Act has imposed restrictions on the freedom of contract, still it is not possible to accede to the submission that the amending Act in absence of assent from the President of India cannot have force of law. It was not disputed on behalf of the petitioners that the parent Act of the year 1969 had received the assent of the President. The question which then falls for determination is whether the deletion of section in the parent Act requires further assent of the President. Counsel for the petitioners did not dispute that if the parent Act was repealed in its entirely, then such repeal does not demand prior assent of the President. It was contended that the President had given assent to the parent Act on the basis that provisions of the parent Act were repugnant to the Contract Act. It is not possible to make any such assumption. It is not unknown that the assent of the President is secured as a precautionary step and the mere fact that the assent is given by the President does not lead to the conclusion that the provisions of the State Act were repugnant or cover a subject which was included in the Concurrent List. Shri Chinoy submitted that the fact that the parent Act received the assent from the President does not enable the State legislature to delete a section which had serious consequences and which deletion leads to imposition of restriction on the freedom of contract without obtaining assent to such deletion. Shri Chinoy submitted that the parent Act by section 3 had imposed restriction and the rigour of the restriction was narrowed down by provisions of section 4 of the Act. The deletion of section 4 of the amending Act resulted into imposing a blanket ban even in respect of the subsisting contracts on the appointed day, and therefore, deletion of the amending Act requires prior assent. We are afraid we cannot accede to the submission of the learned Counsel. Once an assent is secured from the President for the parent Act, then deletion of a particular provision under the Act does not per se require fresh assent from the President. In the present case it must be borne in mind that section 4 was included in the parent Act with a view to protect subsisting agreement for sale of trees on the appointed day. The legislature never contemplated that the subsisting agreements of the year 1969 would be attempted to be enforced after passage of 20 years. Indeed the legislature realised that taking advantage to provisions of section 4 the contractors are acting to the detriment of the tribals by antedating the agreements. It is impossible to imagine that a contractor interested in felling trees and selling it in market prior to year 1969 would sleep over the agreement and file application for permission only in the year 1988. Taking into consideration the unique and unprecedented situation with which the legislature was faced, it was incumbent to provide for deletion of section 4 of the parent Act and this deletion, in our judgment, does not create any further restriction imposing fresh disability on the contracting parties. In these circumstances it is futile to claim that deletion of section 4 of the Act requires prior assent.

9. Shri Apte and Shri Chinoy then submitted that the provisions of the amending Act are violative of Article 14 of the Constitution. The submission is that the amending Act deleted section 4 of the parent Act, with the result that all subsisting contracts on the appointed day could no longer be enforced. It was contended that section 4 of the amending Act deals with the consequences of deletion of section 4, and then provides that all application for approval of contract pending before the Collector shall be dismissed. Sub-section (2) of section 4 of the amending Act carves out an exception and all the applications where (a) approval under sub-section (4) is accorded or (b)order requiring the purchaser to pay adequate price has been made, then in such cases the applications are to be processed with and disposed of by the Collector. It was urged on behalf of the petitioners that there is no difference whatsoever between the applicants whose applications had yet to be processed and the applicants in whose cases approval has been accorded or order has been passed to pay adequate price to the trial. It was urged that the respondents did not examine the applications filed in its chronological order but picket and chose some of the applications and granted approval while kept the prior applications pending without any reason. The Counsel urged that sub-section (2) of section 3 of the amending Act is arbitrary and leads to hostile discrimination. It is impossible to accede to the submission. As mentioned hereinabove the legislative intervention was called for on realisation that the contractors were taking advantage of the poor and illiterate tribals and creating antedated agreements to seek relief under section 4 of the parent Act, by claiming that the agreements were subsisting on March 3, 1969. It was impossible to believe that any agreement entered prior to March 3, 1969 would not be tendered to the collector for grant of approval till the year 1988. In the entire group of petition placed before us, there is not a single agreement which has been tendered to the Collector prior to 1976. It is obvious that after section 5 of the parent Act was deleted, the contractors are manufacturing antedated agreements to reap harvest of the transitory provisions. Realising the mischief practised by the contractors, the Legislature had to step in and fix a cur-off date. On which the applications were still waiting for approval. The legislature did not want to be extremely harsh and reject even applications where the Collector has accorded approval or an order was issued for payment of adequate purchase price to the tribal. The legislature was desirous of eliminating the mischief and ever, assuming that some negligible applications for approval had escaped the net, that would not entitle the petitioners to claim, that the amending Act violates Article 14 of the Constitution. Shri Gurusahani submitted that out of various pending applications on the date of enactment of the amending Act, prior approval was granted only in handful of cases. In our judgment, the challenge under Article 14 of the Constitution cannot be accepted.