TaxTMI 
TaxTMI 
1997 (7) TMI 600
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....enewal of the leases. It, accordingly, dismissed the writ petitions filed by the appellant challenging the power of the Government to transfer the Government land situated in the tribal area to the non-tribals for mining purpose. In the appeal arising from S.L.P. (C) No. 21457 of 1993 filed by Hyderabad Abrasives and Minerals, another Division Bench, earlier had taken dramatically the opposite view and held that mining leases are illegal. The word' 'person' used in Section 3 of the Regulation includes Government. Any lease to the non-tribals even of a Government land situated in scheduled area is in violation of Section 3 and so is void. Equally, it held that a mining lease in a forest area for non-forest purpose or renewal thereof, without prior approval of the Central Government, is in violation of Section 2 of the FC Act. Accordingly, the Division Bench directed the Government to prohibit mining operations in scheduled area except that the mines stacked on the surface be permitted to be removed after obtaining proper permits. This decision, though earlier in point of time, was not brought to the notice of later Bench mentioned above. The admitted facts are that Borra reser....
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....mining operations. Respondent No. 14, M. Venkalapathi Raju was granted mining lease for 13.84 acres for yellow Ochra in unserveyed revenue poramboke, in Konapuram, Ananlhagiri Mandal for a period of 20 years on April 4, 1980. The lease deed was executed on April, 26, 1981 and is to expire on April 25, 2001. It is claimed that the lease is not being worked out and it is said to have lapsed. The lease granted to M/s. Visaka Mines and Minerals, respondent No. 15, is said to be in non-surveyed area in Mandaparti village of Ananlhagiri Mandal on July 20, 1978 for a period of 20 years. The lease deed was executed on December 18, 1978 and it would expire on December 17, 1998. They are working out their mines. Another lease was granted for 130 acres in reserved forest area of Sivalingam village of Ananthagiri Mandal on September 20, 1977 for a period of 20 years which expires on December 30, 1997. It is stated that the lease had lapsed since it was not being worked out, w.e.f. February 9, 1988 as per G.O.Ms. No. 295 dated June 6, 1989. Associated Mica Exports, respondent No. 16 holds two leases for 50 acres in Dumbriguda village of Ananthagiri Mandal for a period of 20 years granted on Mar....
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....rtz and yellow ochra in Nimmalapudu village which is the subject-matter of the original lease dated November 17, 1984 for a period of 20 years had by M. Laxminarayana, was transferred to respondent No. 19. It was stated that the same has further been transferred in favour of M/s. A.P. Mineral Development Corporation Ltd. on December 20, 1994 by G.O.Ms. No. 456 dated December 7, 1994. The latter is a State Government Undertaking but that is not so stated in the counter-affidavit filed on behalf of respondent No. 19. It is sought to be justified that M. Laxminarayana, respondent No. 20, has a legal right to assign the lease in favour of respondent No. 19. It is also admitted in the Government's counter-affidavit that by operation of Section 11(5) of the Mine and Mineral (Regulation and Development) Act, 1957 (for short, the 'Mining Act'), as amended by State Act, on and from August 14, 1991, no mining leases in the scheduled area should be granted in favour of non-tribals. It is also admitted that tribals have their patta lands in five enclosures and have their right to cultivate those lands. It is the case of the appellant that after re-survey, the entire area was identified as rese....
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....eduled area to a non-tribal?; whether the leases are in violation of Section 2 of the FC Act?; and whether the leases are in violation of Environment Protection Act, 1986 (for short, the 'EP Act')? It is stated in paragraph 3(c) of the petition of Samatha that the Borra Reserve Forest area was part of the domain of the Rajah of Jeypore and from time immemorial, it was a tribal area occupied by tribal villages. They have pattas in their favour and do cultivation. In 1967, 14 villages were declared as Borra Reserved Forest. About 250 tribal families settled in 14 villages have in their occupation, 436 acres of land in five enclosures. They are situated in Ananthagiri Mandal. In the counter-affidavit filed on behalf of respondent No. 10, M/s. Kalyani Minerals, it is admitted that Borra caves may be as old as million of years. It is admitted that the "entire area around Borra caves is thickly forested." In the counter-affidavit filed by the District Forest Officer, respondent No. 4, it is admitted that Ananthagiri Mandal is a scheduled area the tribals belong to diverse denominations. It is also one of the important hill regions of the eastern ghats and is known not only for the divers....
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....my. Such cultivation is predominantly prevalent in Andhra Pradesh, Bihar, Orissa, Madhya Pradesh, Maharashtra, Gujarat, Rajasthan, North-eastern States and some parts of Uttar Pradesh. According to this practice, an area covered with vegetation is burnt out to serve as manure. Cultivation is done for a year or two and then the area is abandoned. Another area is cleared in a similar manner and again abandoned. Vegetation regenerates in the abandoned area and after a lapse of 6 to 10 years, the area is again cleared and burnt and, thus, shifting cultivation is carried on. This cycle repeatedly goes on. Due to pressure on land this shifting cultivation has now been abandoned and the Tribes are settling to cultivate crops in fixed holdings. Plight of the Tribes. Detailed study in this behalf and of their exploitation has been conducted by sociologists and anthropologists, the foremost notable of them being Prof. C. V. F. Haimendrof and Arher. Many others equally have evinced keen interest and investigated into living conditions of the tribes, their culture and customs, etc. which establishes that initially the tribals had held large tracts of lands as masters and had their own ri....
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....e "Land Alienation and Restoration in Tribal Communities in India" edited by S. N. Dubey and Ratna Murdia, (Himalaya Publishing House), compilation of articles presented and read out at a Seminar organised by Tata Institute of Social Science in which bureaucrats and social scientists participated. B. Danam, IAS, then Project Officer, ITDA, Khammam, had highlighted in his paper about diverse modes of exploitation by moneylenders of the tribals in Andhra Pradesh. They were : short-term loan at an exorbitant rate of interest (Kandagutha), the repayment of which was made in kind, i.e., harvest produced from a particular extent of land; the medium-term loan on the security of the immovable property, repayable with compound interest at yearly or half-yearly rests. Third mode was lease of land against a loan for a fixed number of years (Tirumanam) during which period the Tribes have to cultivate their land, raise the crop and deliver the entire produce to the money-lender; by usufructuary mortgage, the money-lender remains in possession and enjoys the produce from the land for a fixed number of years or till the principal sum is repaid; by advancing cash and find loans (Namu) and lending ....
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....rty shuttled within the Agency Tracts by a member of a hill tribe shall be absolutely null and void unless made in favour of another member of a hill tribe, or with the previous consent in writing of the Agent or of any other prescribed officer. (2) Where a transfer of property is made in contravention of Sub-section(1), the Agent or any other prescribed Officer may on application by anyone interested, decree ejectment against any person in possession of the property claiming under the transfer and may restore it to the transferor or his heirs. (3) Subject to such conditions as may be prescribed an appeal against a decree or order under Sub-section (2) if made by the Agent shall lie to the Governor in Council and if made by any other officer shall lie to the Assistant Agent or to the Agent as may be prescribed. "Montague and Chaonsford Report, 1918 briefly touched the administration of tribal areas and political reform and excluded them from the reformed provincial Governments. Govt. of India Ac, 1919 divided the area into two parts "wholly excluded and partially excluded areas for reform". The former were small and the latter were given joint responsibility of the Governor a....
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....islature, or of the Provincial Legislature or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub- section shall be submitted forthwith to the Governor General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor General as they apply in relation to Acts of a Provincial Legislature assented to by him. The Government of India (Adoption of Indian Laws) Order, 1937 repealed 1874 Act and brought excluded and partially excluded areas directly under the governance of the Governor under Section 92 of the Government of India Act, 1935. Thus they became the Scheduled Areas by virtue of the Scheduled Areas (Part 'A' States) Order, 1950 issued by the President of India. After the advent of the Constitution, Fifth and Sixth Schedules were engrafted as part of the scheme of the Constitution by the founding fathers. Fifth Schedule empowers the President of India who thereunder issued Scheduled Areas (Part 'A' States) Order, 1950 decla....
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....: Visual impressions of the process of ethnic and cultural change are supported by demographic figures. While in 1951 the population of Utnur Taluk was only 34,404, the majority of whom were tribals, by 1961 it had risen to 55,099 and by 1971 to 93,823. No official census figures are available for later years, but according to a malaria survey of 1977 the population of the taluk had then reached a total 112,000. This phenomenal increase is clearly due to immigration, and all the new comers arc non-tribals. The change in the composition of the population is reflected in the figures for tribals in individual circles. Thus in the Marlavai Circle, which in 1941 was almost totally tribal, the percentage of tribals in 1961 was still 90.38 per cent, but by 1971 it had dropped to 65.52 per cent, a figure which undoubtedly has diminished since then. Narrating the event (after his revisit), he has stated at pages 59-60 thus: On 7 December 1976, Kumra Boju of Kerimeri came to see me in Kanchanpalli and told me the following story: My father Somu owned fifteen acres of patta land, but for the last thirteen years Rama Gaudu of Asifaba....
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....to the non-tribals. The Gonds too had an opportunity of acquiring Patta rights in the land but they were slow to understand that they would suffer if they did not take advantage of these concessions. The new Watandars made a subtle use of their office as village headmen to evict the original possessors or take lands vacated by them for themselves. Another modus operandi for evicting the tribals who were cultivating the lands was by treating them as Sivaijainabandi, i.e., treating as unauthorised occupants. A cultivator who held land under Sivaijainabandi tenure is liable to eviction at any time. The tribals who were owners under the law were treated as unauthorised occupants by manipulation of revenue records. The tribals who could not understand the meaning of Patta rights could not be expected to understand the meaning of Sivaijainabandi. In many cases, though tribals had been cultivating-the lands for several decades and generations, they were purposefully categorised as Sivaijainabandi, and were evicted. Their lands were assigned to non-tribals. It is ridiculous even to classify the lands held by tribals as Sivaijainabandi just because these people lacked knowledge of the na....
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....hen converted for urban use, to give them equivalent lands. As early as in 1901, in Gujarat, some measures of protection were provided (when it formed part of the Bombay Province) by amendment of Sections 73-A and 79-A in the Bombay Land Revenue Code, 1879, and imposed ban on transfer of land of tribes in those scheduled villages in which survey and settlement had not been introduced without previous permission of the Collector. The Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 and Maharashtra (Restoration of Lands to Scheduled Tribes) Act, 1974 also prohibit alienation and ensure restoration of alienated lands to the tribes. Dr. B. L. Maharda, IAS, a bureaucrat of Rajasthan Cadre, in his "History and Culture of Giriasias" of State of Rajasthan, has narrated the similar problems of tribals. The Regulation prohibits absolutely the transfer of land in scheduled areas of Andhra Pradesh between tribals and non-tribals or non-tribals inter se. In 1971, an amendment was made to exempt hypothecation of lands by tribes to the Co-operative Land Mortgage Banks and other financial institutions approved by the Government, subject to certain conditions. In Assam, the A....
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....he Province to apply or to exclude the application of the laws made by the Legislature or the Executive Council to the partially excluded scheduled areas. In either event the object was to prevent the tribals to get the wiles of the moneylenders and preservation of their property and customs and to allow the tribals autonomy of their living in accordance with their customs and culture. Until the Simon Commission, the legislative protection was not available in that behalf. The Simon Commission found it necessary to bring the tribals to the main-stream of national life. In consequence, tribal area was to be brought under the direct administration of the elected Governments by encouraging education, self-reliance and the provincial Government were to devote special attention for their upliftment. But the scheme was not given effect to in the Constitution of India Act, 1935. As is seen, Sections 91 and 92 of the Government of India Act and the Cabinet Mission Statement of May 16, 1946 emphasised the special attention on the tribal areas. From this perspective, we are required to consider the debate in the Constituent Assembly and the draft statements by the two Committees, one for ....
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....he amendment should be made after discussion in the Constituent Assembly. In the revision of Articles qua allotment of land to non-tribals was retained. However, after authorisation given by the Constituent Assembly to make necessary restructuring of the Fifth Schedule as explained by Dr. Ambedkar, the Draft was amended excluding all references to the allocation of land of tribals to the non-tribals with no amendment proposed by any member vide Vol. 9, C. A.D., pp. 965-1001. It would, therefore, be seen that before the Draft Constitution became paramount law and the Fifth Schedule as its integral part, the members of the constituent Assembly deliberated to protect land, the precious asset to the tribals, for their economic empowerment, economic justice, social status and dignity of their person by retention of the land with the tribals not only belonging to them but also allotment of the Government land. The proposal for allotment of the Government land to the non-tribals though was initially proposed but was ultimately dropped. After restructuring Fifth Schedule, as presently found, the specific provision in the draft report to allot land to non-tribals was omitted which was ac....
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....vision of Clause (2) of Article 244-A are not relevant for the purpose of this case; hence omitted. The Fifth Schedule makes the provisions as to the administration and control of Scheduled Area and Scheduled Tribes. Para (1) envisages that unless the context otherwise requires, the expression "State" defined in the Schedule does not include the State of Assam. Meghalaya, Tripura and Mizoram. Part V of the Schedule gets attracted to the administration and control. Para (2) envisaged that subject to the provisions of the Schedule, the executive power of a State extends to the Scheduled Areas enumerated therein. Special duty has been entrusted to the Governor to report to the President of the administration of scheduled area. It enjoins that the Governor of each State, having Scheduled Areas therein, shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said area. Para 5(2) provides that the Governor may make regulations for the peace and good Government of any ar....
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....ared from time to time as Scheduled areas by the President under sub-paragraph (1) of paragraph 6 of the Fifth Schedule to the Constitution. 'Scheduled Tribe' has been defined in Section 2(f) to mean any tribe or tribal community or part of or groups within any tribe or tribal community resident in the Agency tracts and specified as such by a public notification by the President under Clause (1) of Article 342 of the Constitution. Section 2(g) defines 'transfer' to mean mortgage with or without possession, lease, sale, gift, exchange or "any other dealing" with immovable property, not being a testamentary disposition and includes a charge on such property or a contract relating to such property in respect of such mortgage, lease, sale, gift, exchange or other dealing. The definition of transfer is a comprehensively wide definition except testamentary disposition by a tribal to another tribal so as to effectuate the prohibition of transfer of immovable property to any person other than a Scheduled Tribe or a co-operative society composed solely of members of the Scheduled Tribes. Section 3(1) reads as under: "3. Transfer of immo....
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....t to the transfer of his heirs. (b) If the transferor or his heirs, are not willing to take back the property or where their whereabouts are not known, the Agency, the Agency Divisional Officer or prescribed officer, as the case may be may order the assignment or sale of the property to any other member of a Scheduled Tribe (or a society registered or deemed to be registered under any law relating to cooperative societies for the time being in force in the State) composed solely of members of the Scheduled Tribes, or otherwise dispose of it, as if it was a properly at the disposal of" State Government. Section 4 reads as under: (4) For the purposes of this section, the expression 'transfer' includes a sale in execution of a decree and also a transfer made by a member of Scheduled Tribe in favour of any other member of a Scheduled Tribe benami for the benefit of a person who is not a member of a Scheduled Tribe; but does not include a partition or a devolution by succession. Section 3, therefore, prohibits transfer of immovable property by a member of the Scheduled Tribes to a non-Scheduled Tribe. Sub-....
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....ue notice to such person. Clause (b) of Sub-section (2) of Section 3 provides that if a transferor or his heirs are not willing to take back the property or where whereabouts of the transferor are not known, the said officer may by order assign or sell the property to another member of the Scheduled Tribe or a Co-operative Society. Sub-section 3(4) provides that for the purpose of Section 3(4), the expression 'transfer' includes sale in execution of a decree and also a benami transfer made by a member of a Scheduled Tribes i n favour of any other member of the Scheduled Tribes but does not include a partition or a devolution by succession. Section 3-A makes special provision relating to mortgages without possession; the details thereof are not material. Section 4 provides for the remedy of suit to be instituted in the Agency Courts against a member of the Scheduled Tribe; the details thereof are not material. Section 5 provides for attachment and sale of immovable property. Section 6 gives revisional power to the State Government. Section 6-A provides for penalties for contravention of the provisions of the Regulation. Section 7 prescribes limitation for purpose of initiating pr....
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....dless labourers. When their lands are acquired for public purpose, the Government should give alternative lands for rehabilitation and easy loans for reclamation. Law relating to prohibition of alienation and restoration of lands to tribes must be simple, less cumbersome and result-oriented. The machinery must be speedy and the officers must have compassion and sense of dedication and direction to ameliorate the economic status of the tribes to assimilate them into national main-stream. In Telangana area of the State of Andhra Pradesh, prior to the Regulation and pursuant to Part B State Regulation in Fifth Schedule, the AP Tribal Area Regulation, III of 1359F promulgated by Raj Pramukh of Hyderabad was in vogue. Section 46 of the Agricultural Land and Tenancy Act, 1950 prohibits transfer of agricultural land without sanction of the competent authority. Section 3 of the Tribal Area Regulation excludes the application of any Act, Regulation or Rules by. a notification published in the official Gazette. Section 4 gives power to the Government to make Rules. Subsection (2) of Section 4 prohibits eviction of tribals. from the lands in their possession or occupied by them. Clause (f)....
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....d is the transfer to Co-operative Societies composed solely of tribals or mortgage of the land to a Co-operative Land Mortgage Bank registered as an instrumentality of the State or any Government approved lending agency to improve the agricultural lands or sale to an agent to the Government etc. A non-tribal person who is unable to find a tribal buyer is not totally prohibited to transfer it. He should offer it to the named or nominated Government agent etc. who would purchase it in the prescribed manner under the Regulation and assign it on to a tribal. The Andhra Pradesh High Court had held that the transfer of land in Scheduled Area by a tribal given to either a Scheduled Caste or a Backward Class settled in Agency tracts as void. In P. Rama Reddy's case , this Court had observed thus (at pp. 1630, 1631 and 1634 of AIR): Within the scheduled areas of both Telangana and Andhra 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-tri....
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....on that arises for consideration is: whether the transfer of its land in a scheduled area, by the Government is valid in law? It is indisputable that apart from the patta lands or other lands held by the tribals, the State holds vast tracts of land in scheduled area, in some areas with rich mineral deposits. The questions are whether the State Government is exempt from the Regulation? whether the State Government stands above the law? whether the meaning of the word "person" in Section 3(i)(a) of the Regulation would include the State Government? Article 244(1) read with the Fifth Schedule, Part I, while defining "State" excepts certain States as enumerated therein. It bears repetition that paragraph 5(2) of Fifth Schedule enjoins the Governor to make regulations for the peace and good governance in a Scheduled area. Without prejudice to the general power, subsequent clauses amplify particular powers. Clause (a) empowers him to prohibit or restrict the transfer of land by or among members of the tribals and non-tribals in such area. Clause (b) regulates the allotment of land only (added to emphasise) to members of the Scheduled Tribes in the area. The question, therefore, is : w....
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.... out their functions, create an organisation with a range of rights and duties not dissimilar to many of those possessed by human beings. In English law such corporations are formed either by charter, statute or registration under the Companies Acts; there is also the common law concept of the Corporation Sole". At page 163. it is further staled that "(T]he Crown is the executive head in the United Kingdom and Commonwealth, and government departments and civil servants act on behalf of the Crown". In "Salmond on Jurisprudence" by P. J. Fitzgerald [Twelfth Edition], at page 66, it is stated that "[A] legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination...".At page 72, it is further amplified that "[T]he King himself, however, is in law to mere mortal man. He has a double capacity, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and underlying persona fact, in wh....
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.... that "Corporation sole consists of one person only and his successors, in some particular station, who are incorporated by law, in order to give them legal capacities and advections in particular that of perpetuity, which in the natural persons could not have had. In this sense the King is a corporation sole". At page 155, it is further stated that the law, therefore, has wisely ordained, that the person, qua tenus person, shall never die, any more than the King; by making him and his successors a corporation sole. By which means all the original rights of a personage are preserved entirely to the successOrs. At page 169, it is stated that the reason for King personality, a corporate sole, is that corporate personality is a technical device, applied for a multitude of very divers aggregations, institutions and transactions, whereas each of many theories has been conceived for a particular type of juristic personality. None of them foresaw the extent to which the device of incorporation would be used in modern business, or we may add, to cloak the activities of some branch of Government. Thus, in Great Britain, Crown has been regarded as a Corporation sole, persona fact so that ....
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....overnment. In the United Slates, government consists of the executive, legislative, and judicial branches in addition to administrative agencies. In a broader sense, includes the federal government and all its agencies and bureaus, state and county governments, and city and township governments. The system of polity in a state, that form of fundamental rules and principles by which a nation or state is governed or by which individual members of a body politic are to regulate their social actions. A constitution, either written or unwritten, by which the rights and duties of citizens and public officers are prescribed and defined, as a monarchical government, a republican government, etc. The sovereign or supreme power in a state or nation. The machinery by which the sovereign power in a state expresses its will and exercises its functions, or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on. In Edgar B. Sims v. United States of America (1959) 359 US 108 : 3 Law ed 2d 66, Federal tax authorities issued notices of levy of tax for assessment on unpa....
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....lly include a State as a defendant or else the language used would be meaningless. In United States of America v. Cooper Corporation et al. (1940) 312 US 600 : 85 Law ed 1071 relied on by Sri Sudhir Chandra, considering the word 'person' used in Sections 7,85 and 178 of the Sherman Anti Trust Act, it was held that although the term "person", as used in a statute, is not ordinarily construed to include the sovereign, this is not a hard and fast rule of exclusion, but may be negatived by resort to aids to construction indicating a contrary intent. On the facts, it was held that state was not a person. In that context it was held that in the absence of any indication to the contrary, the term 'person', when used in different sections of a statute, was employed throughout the statute, in the same, and not different sense. But the said decision was reversed in State of Georgia case 1941 (316) US 159. In United States v. I.C.C. (1948) 337 US 426 it was held that when relief is sought against State itself, the word 'person' would include the State and be construed accordingly. In Superintendent and Legal Remembrancer, State of West Bengal v. Corporation of Calcutta a Bench of nine J....
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....held by it. In the absence of such a provision, in a constitutional set up like the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union. In that case, it was contended that Abolition of Big Landed Estates and Land Reforms Act, 1953 and Section 11 thereof does not apply to the land held by the Government. This Court rejected that contention. It would, therefore, be settled law that the question whether or not the word 'person' used in a statute would include the State has to be determined with reference to the provisions of the Act, the aim and its object and the purpose the Act seeks to subserve. There is no reason to consider the word 'person' in a narrow sense. It must be construed in a broader perspectivity, unless the statute, either expressly or by necessary implication, exempts the State from the operation of the Act as against the State and would inclu....
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....overnor in the exercise of his function except, in so far as he is, by or under the Constitution, required to exercise his functions or any of them, in his discretion. The Council of Ministers, headed by the Chief Minister, shall be collectively and individually responsible to the Legislature and the people in the matter of the governance of the State. All executive actions of the Government of a State, shall be expressed to be taken in the name of the Governor and the business of the Government is conducted in accordance with Article 166 and the Business Rules made, by the Governor, by Clause (3) thereof. Under Chapter III of Part XII, Article 294 vests in the union and the corresponding State all property and assets which immediately before the commencement of the Constitution were vested in His Majesty for the purposes of the Government of Dominion of India or of each Governor's Province, whether arising out of any contract or otherwise; similarly all rights, liabilities and obligations, respectively of the Government of the Dominion of India and of the Government of each corresponding State, shall belong to the Government of India and the Government of each corresponding Sta....
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....se; suffice it to state that Constitution has created permanent bureaucracy consisting of diverse all India services allotted to various States and State Services created thereunder to assist the political executive and to implement the provisions of the Constitution, the laws and the executive policy of the appropriate Government. Under the Constitution, in all ordinary matters of administration, the Ministers take full responsibility, subject to the control by the Legislature. The bureaucracy gives shape to the decisions taken by the Council of Ministers at the Cabinet meeting or by the individual Ministers by working out the details and they are applied in the given set of facts. In Asbury's Laws of England (4th Ed.) Vol. 8 in paragraph 1152 at page 711 it is stated that the Government offices and departments through which the general executive administration of the country is carried on owe their establishment and organisation, together with the powers they possess and duties they perform, partly to the royal prerogative and partly to the Parliament, They derive almost all their powers directly or indirectly from Parliament, which alone can provide them with the supplies of mon....
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....o publicly accountable for the acts or conducts in the performance of duties. The Minister holds public office though he gets constitutional status and performs functions under Constitution, law or executive policy. The acts done and duties performed are public acts or duties as holder of the public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the concerned authority by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse of the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio-economic democracy. The executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally....
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....the Governor in the exercise of his executive functions. The same principle was reiterated by a Bench of three Judges in UK. Jain v. Union of India, [1995] 4 SCC 119. Therein, it was held that in a democracy governed by rule of law, State is treated on par with a person by Article 19(6) in commercial/industrial activities. It would thus be clear that in a democratic polity governed by the rule of law, the administration is run through constitutional mechanism i.e., Cabinet form of Govt. by a Council of Ministers headed by the Chief Minister. They aid and advise the Governor, the executive head of the State. The bureaucracy --an arm of the political executive -- assists as an integral part of administrative mechanism. Their actions or the acts, individually or collectively, are directed to elongate and fulfil the socio-economic goals set down in the Constitution to establish the egalitarian social order in which socio-economic justice is secured to the poor and weaker sections of the society including the Scheduled Castes and Scheduled Tribes, in particular, as enjoined in Article 46 of the Constitution, to promote their socioeconomic interest and protect them from social inju....
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....rately in its annual financial statement the revenues and expenditure pertaining to these areas. Thus, the Fifth and Sixth Schedules an integral scheme of the Constitution with direction, philosophy and anxiety is to protect the tribals from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat. Equalitarian Social Order--Scope and Content. Justice is an attribute of human conduct. Law, as a social engineering, is to remedy existing imbalances, as a vehicle to establish an egalitarian social order in a Socialist Secular Bharat Republic. The Upanishad says that, "let all be happy and healthy, let all be blessed with happiness and let none be unhappy". Bhagwatgeeta preaches through Yudhishtra that, "I do not long for kingdom, heaven or rebirth, but I wish to alleviate the sufferings of the unfortunate". Prof. Friedlander in his "Introduction of Social Welfare" at page 6 states that social welfare is the organised system of social service and institutions are designed to aid individuals and groups to attain spe....
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.... rights and fundamental freedoms as well as their duties to the community, which alone can ensure free and complete fulfilment of the human being and they should, therefore promote and protect an appropriate political, social and economic order for development." Clause (3) thereof provides that the States have "the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom." Article 3(1) recognises and enjoins that it is the State's primary responsibility to create conditions favourable to the realisation of the right to development. Under Clause (3) thereof, it reminds the State of its duty to co-operate with each other and of "ensuring development and eliminating obstacles to development." Article 6(2) reassures that "human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, econ....
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....ing inequalities in social and economic life, socioeconomic disabilities with which poor people are languishing by providing positive opportunities and facilities to individuals and groups of people. Dr. B. R. Ambedkar, in his closing speech in the Constituent Assembly on November 25, 1949, had lucidly elucidated thus: What does social democracy mean? It means way of life which recognises liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity arc not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty, would kill individual initiative -- we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which ther....
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.... Principles of State Policy and that opportunities and facilities should be provided to the children to develop in a healthy manner and in conditions of freedom and dignity. Adequate facilities, just and humane conditions of work etc. are the minimum requirements which must exist in order to enable a person to live with human dignity and the State has to take every action. In Subhash Kumar v. State of Bihar, AIR (1991) SC 420, this Court had held that the right to life includes the right to enjoyment of pollution free water and air for full enjoyment of life. In Olga Tellis v. Bombay Municipal Corporation, AIR (1986) SC 180, this Court had held that right to livelihood is an important facet of the right to life. In CE.S.C. Ltd. & Ors. v. S.C. Base & Ors., [1992] 1 SCC 441 at 462-63, para 30, it was held that right to social and economic justice is a fundamental right. Right to health of a worker is a fundamental right. Therefore, right to life enshrined in Article 21 means something more than mere survival of animal existence. The right to live with human dignity with minimum sustenance and shelter and ail those rights and aspects of life which would go to make a man's life complet....
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..... A. Choudhary, learned senior counsel for the 13th respondent, contended that the word 'person' in Section 3(1) of the Regulation does not cover the executive Government of the State nor does it prohibit the Government from transferring its land. According to him, such an interpretation would get the Regulation exposed itself to be ultra vires of Article 298 of the Constitution which should be avoided. The premise of his contention is founded on the principle that the Constitution empowers the Executive to acquire, hold and dispose of the property and the Governor, as sovereign head of the Executive, gets no power under the Fifth Schedule to prohibit the State Government to transfer its property to non-travails On the other hand, the Constitution has full faith in the Executive to implement the directives contained in the Fifth Schedule to the Constitution to promote the welfare of the Tribes. The Constitution has built up a balanced structure distributing powers and functions to each of the three branches of the State. The Fifth Schedule read with Article 244 of Chapter X of the Constitution, with a non obstante clause, has conferred only the legislative power on the Governor, re....
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.... President has the executive power to appoint and remove executive subordinates, In The State of Uttar Pradesh v. Babu Ram Upadhya cited by Shri Choudhary, it was held that the pleasure doctrine of the President under Article 310 of the Constitution is qualified by Article 311 and is not subject to any law made by the Parliament or the Legislature of the State. In other words, according to the learned Counsel, the ratio therein reiterates that the executive power of the President/Governor granted under the Constitution is not subject to any limitations but is co-extensive with the exercise of the legislative power. Maru Ram v. Union of India was cited for the proposition that the power, of the President under Article 72 and of the Governor under Article 162, are not subject to legislative control. The power of Legislature imposing minimum sentence of imprisonment under Section 433A or the CrPC is not subject to, nor can nullify wholly or partly, the executive power of the President or the Governor to pardon or to reduce the life imprisonment of a convict. It is true, as contended by Shri Chowdhary, that the Constitution has demarcated legislative, executive and judicial po....
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.... the Governor to make regulation for the peace and good Government of any area in a State which is for the time being a Scheduled Area. In particular and without prejudice to the generality of the foregoing power, such regulation may regulate the allotment of land to members of the Scheduled Tribes in such area or may prohibit or restrict the transfer of land under Clause (a) by or among the members of the Scheduled Tribes in such areas. In other words sub-para 5(2) combines both legislative as well as executive power, Clause 5(2)(a) and (c) legislative power and Clause (b)combines both legislatives as well as executive power. The word 'regulation' in para 5(2)(b) is thus of wide import. Meaning of the word 'Regulation' in the title of the Regulation, para 5(2)(b) of the Fifth Schedule of the Constitution. The question then is : whether the word "regulate" in para 5, Clause (2)(b) would include prohibition to transfer the Government land? It requires no elaborate discussion in this behalf. While interpreting Article 19(1)(g) of the Constitution, this Court has consistently being held that the term 'regulation' would include total prohibition vide Narcndra Kumar v. Union of In....
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....he Government to transfer its lands to the non-tribals. This negative answers leads to effectuate the constitutional objective to preserve the land in the scheduled area to the tribals, prohibits the Government from alloting their land to the non-tribals; prohibit infiltration of the non-tribals into the scheduled area and prevents exploitation of the tribals by non-tribals in any form. This purposive interpretation would ensure distributive justice among the tribals in this behalf and elongates the constitutional commitment. Any other interpretation would sow the seed beds to disintegrate the tribal autonomy, their tribal culture and frustrate empowerment of them, socially, economically and politically, to live a life of equality, dignity of person and equality of status. It would, therefore, be clear that the executive power of the State to dispose of its property under Article 298 is subject to the provisions in the Fifth Schedule as an integral scheme of the Constitution. The legislative power of the State under Article 245 is also subject to the Fifth Schedule, to regulate the allotment of the Government land in the scheduled areas. Obviously, therefore, the State Legislatu....
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....at the word 'person' in Section 3(1)(a) requires interpretation, keeping in view the contextual constitutional history of prohibition on transfer of the land by a tribal to a non-tribal including that of the Government land, differently depending upon the context in which it has occurred in the first part of Section 3(2)(a) the word 'person' may be considered in a generic sense and in the second part thereof to mean a natural person. Prohibition on the transfer of the land by a tribal to a non-tribal visualises transfer between natural persons. The factum of membership of the person as a tribe does not necessarily cut down the width of the word 'person,' namely, legal person taken alongside the natural person. The word 'person' requires interpretation in the natural sense of the context in which it is used. Legal person may be natural, artificial or statutory person. The words "whether or not" in Clause 3(2)(a) are in the nature of clarification and it would not cut down the contextual meaning. The words "such person" in the first part of Section 3(1)(a) must be interpreted to mean transferor, namely, artificial or statutory person apart from natural person. The objection of Sectio....
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....ur of the tribals in the matter of assignment of the land belonging to the Government in their favour. Conversely, there is implied prohibition on the transfer of Government land in favour of the non-tribal. The words "peace and good Government" used in para 5(2) also requires to be understood in a wider sense. Good Government must, of necessity, be in accordance with :the Constitution and dispensation of socio-economic justice to the tribals including regulation of the land, distribution between the tribals and prohibition on the non-tribals to entrench into scheduled area, to acquire, hold and deal with the lands in scheduled area. It would defeat the object of the Constitution envisaged to the Fifth Schedule thereof because the non-tribals gel the Government land transferred in their favour and manoeuvre to have the tribals deprived of their land by other illegal means. The word 'State,' therefore, would include within the concept of the word 'person' in Section 3 of the Act. In support thereof, Shri Rajeev Dhavan cited State of West Bengal v. Union of India and Madras Electric Corporation case 1955 (1) All ER 753. He has also drawn our attention to construe the pro-visions, in ....
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....l in favour of a non-tribal. By necessary implication the Government is not intended to be included in the word 'person.' Shri P. A. Choudhary, learned senior counsel, further elaborated, stating that Section 3(2)(b) amplifies that the land is purchased from a non-tribal by the Government or where the heirs of a tribal transferor are not willing to take back the property, assignment or disposal of the said property in favour of another tribal as "a property at the disposal of the State Government" and prosecution for violation of the Regulation under Section 6A by way of penalty, are not intended to be applied to the Government when the transfer is made in violation of the provisions of the Regulation; and, therefore, the word 'person' should be given restricted meaning applicable only to natural person. Shri Sudhir Chandra further contended that Clause 2(a) of para 5 of the Fifth Schedule restricts transfer of land by or among members of the Scheduled Tribes; Clause (b) regulates the allotment of land to members of the Scheduled Tribes in such area; and Clause (c) regulates money-lending business by non-tribals to members of the Scheduled Tribes in scheduled area and para 5(3) ....
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....m the above perspective, having given our deep and anxious consideration to the respective contentions of the learned Counsel for the parties, we are of the considered view that the interpretation put up by Shri Rajeev Dhavan merits acceptance. It is seen and bears recapitulation that the purpose of the Fifth and Sixth Schedules to the Constitution is to prevent exploitation of truthful, inarticulate and innocent tribals and to empower them socially, educationally, economically and politically to bring them into the mainstream of national life. The founding fathers of the Constitution were conscious of and cognizant to the problem of the exploitation of the Tribals. They were anxious to preserve the tribal culture and their holdings. At the same time, they intended to provide and create opportunities and facilities, by affirmative action, in the light of the Directive Principles in Part IV, in particular, Articles 38, 39, 46 and cognate provisions to prevent exploitation of the tribals by ensuring positively that the land is a valuable endowment and a source of economic empowerment, social status and dignity of persons. The Constitution intends that the land always should remain wi....
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....its ambit, natural persons, juristic person and constitutional mechanism of governance in a democratic set up. It has already been held and bears no repetition, that the State, by Cabinet form of Government, is a persona fact, a Corporate sole. Constitution empowers the State to acquire, hold and dispose of their property. The Governor in his personal responsibility is empowered to maintain peace and good Government in scheduled area. The Fifth Schedule to the Constitution empowers him to regulate allotment of the land by para 5(2)(b) read with Section 3 of the Regulation of the land be it between natural persons, i.e., tribals and non-tribals: it imposes total prohibition on transfer of the land in scheduled area. The object of the Fifth Schedule and the Regulation is to preserve tribal autonomy, their culture and economic empowerment to ensure social, economic and political justice for preservation of peace and good Government in the scheduled area. Therefore, all relevant clauses in the Schedule and the Regulation should harmoniously and widely be read so as to elongate the aforesaid constitutional objectives and dignity of person to the Scheduled Tribes, preserving the integrit....
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.... scheduled area to non-tribal person, be it natural or juristic person except to its instrumentality or a Co-operative Society composed solely of tribes as is specified in the second part of Section 3(1)(a). Any other interpretation would easily defeat the purpose exclusive power entrusted by the Fifth Schedule to the Governor. If the Cabinet form of Government would transfer the land of the Government to non-tribals peace would get disturbed, good governance in scheduled area would slip into the hands of the non-tribals who would drive out the tribals from scheduled area and create monopoly to the well developed and sophisticated non-tribals; and slowly, and imperceptible, but surely, the land in the scheduled area would pass into the hands of the non-tribals. The letter of law would be an empty content and by play of words deflect the course of justice to the tribals and denude them of the socio-economic empowerment and dignity of their person. The word "person" in Section 3(1)(a) would, therefore, be construed to include not merely the ' natural persons, in the context of tribal and non-tribal who deal with the land in scheduled areas by transfer inter vivos but all juristic ....
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....be achieved. In D.S. Nakara & Ors. v. Union of India, [1983] 2 SCR 165 at 187F to 189H, another Constitution Bench had dealt with the object to amend the Preamble by the Constitution (42nd Amendment) Act and pointed out that the concept of Socialist Republic was to achieve socio-economic revolution to end poverty, ignorance and disease and inequality of opportunity. It was pointed out that socialism is a much misunderstood word. Values determine contemporary socialism -- pure and simple. The principle aim of socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people especially to provide security from cradle to grave. The less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be prohibited. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. The Preamble directs the centers of power. Legislature, Executive and Judiciary -- to strive to set up from a wholly feudal exploited slave society to a vibrant, throbbing socialist welfar....
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....h also emphasised the need to enter into a new social order in which "there would be valid growth in the standard of living of all the people of India with equitable distribution of wealth and equality of opportunity and status of all." Dias, in his "Jurisprudence" (5th Edn.) on 'distributive justice' in Chapter 4 at page 66, has stated that justice is not synonymous with equality: equality is one aspect of it. Justice is not something which can be captured in a formula once and for all. It is a process, a complex and shifting balance between many factors including equality. Justice is never given, it is always a task to be achieved. Justice is just allocation of advantages and disadvantages, preventing the abuse of power, preventing the abuse of liberty by providing facilities and opportunities to the poor and disadvantaged and deprived social segments for a just decision of disputes adapting to change. Justice P. B. Sawant. former Judge of this Court, in his "Socialism under the Indian Constitution" had stated at page 2 that today socialism has come to be associated with certain social and economic arrangements and way of life in a socialist economy that the resources of the s....
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....chical expansion of private enterprises. The Indian conception of socialism with democracy with human dignity is by creation of opportunities for the development of each individual and not the destruction of the individual, It is not for the merging of the individual in the society. The Indian socialist society wants the development of each individual but requires this development to be such that it leads to the upliftment of the society as a whole. Fundamental duties in Chapter VI-A of the Constitution to bear meaningful content, facilities and opportunity on equal footing is the fundamental condition of a socialist society. The more the talent from Backward Classes and areas get recognition and support, the more socialist will be the society. Public Sector and Private Sector should harmoniously work. The Indian approach to socialism would be derived from Indian spiritual traditions. Buddhism, Jainism, Vedantic and bhakti Hinduism. Sikhism, Islam and Christianity have all contributed to this heritage rooted to respect for human dignity and human equality. While imposing restrictions on the right to private property even to the extent of abolishing it where necessary in the social ....
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....olicy in the Constitution have indicated the approach in broad terms; the socialist pattern of society is a more concretised expression of this approach. Economic policy and institutional changes have to be planned in a manner that would secure economic advance along democratic and egalitarian lines.... Mr. G. D. H. Cole, one of the leading socialist of U. K., in his speech "The Growth of Socialism" published in 'Law and Opinion in England in the 20th Centuary' (Morris Ginsberg, Editor) at page 79-80, has stated that socialism is a movement aiming at greater social and economic equality and using extended State action as one of its methods, perhaps the most distinctive but certainly not the only one needed to be taken into account. The affairs of the community shall be so administered as to further the common interests of ordinary men and women by giving to everyone, as far as possible, an equal opportunity to live a satisfactory and contended existence, coupled with a belief that such opportunity is incompatible with the essentially unequal private ownership of the means of production. It requires not merely collective control of the uses to which these are to be put, but also ....
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....nstitution as one of the essential directive principles of Slate polity. Therein, this Court laid stress on the word 'distribute' as used in Article 39(b) being a key-word of the provision emphasising that "The key word is distribution and the genus of the Article, if we may say so, cannot but be given full play as it fulfils the basic purpose of restructuring the economic order. Each word in this Article has a strategic role and the whole Article is a social mission. It embraces the entire material resources of the community. Its task is to distribute such resources, its goal is to undertake distribution as best to subserve the common good. It reorganises by such distribution the ownership and control." In Sanjeev Coke Manufacturing Company v. Bharal Coking Coal Ltd. another Constitution Bench reiterated the above view; while considering Article 39(b) of the Constitution, at page 1020 (of SCR): (at pp. 249-50 of AIR), this Court had held that the broad egalitarian principle of economic justice was implicit in every directive principle and. therefore, a law designed to promote a directive principle, even if it came into conflict with the formalistic and doctrinaire view of equal....
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....ith liberty, equality of opportunity, equality of status and fraternity a reality to "we. the people of India", who would include the Schedule Tribes. All State actions should be to reach the above goal with this march under rule of law. The interpretation of the words 'person' 'regulation" and 'distribution' require to be broached broadly to elongate socio-economic justice to the tribals. The word 'regulates' in para -5(2)(b) of the Fifth Schedule to the Constitution and the title of the Regulation would not only control allotment of land to the Tribes in Scheduled area but also prohibits transfer of private or Government's land in such areas to the non-tribal s. While later Clause (a) achieves the object of prohibiting transfers inter vivos by tribals to the prohibiting or non-tribals inter se, the first clause includes the State Government or being an juristic person integral scheme of para 5(2) of Schedule. The Regulation seeks to further achieve the object of declaring with a presumptive evidence that the land in the Scheduled Areas belongs to the Scheduled Tribes and any transfer made to a non-tribal shall always be deemed to have been made by a tribal unless the transferee e....
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....e Societies Act, 1964 which is composed solely of members of Scheduled Tribes. Explanation: For the purpose of this sub-section; (a) the expression "Scheduled Areas" shall have the s me meaning assigned to it in Clause (25) of Article 366 of the Constitution of India; and (b) the expression "Scheduled Areas" shall have the same meaning assigned to it in paragraph 6 of the Fifth Schedule to the Constitution of India. It brings out and effectuates public policy envisaged in the Fifth Schedule of the Constitution ; and the Regulation. Undoubtedly, it is prospective but the underlying principle would permeate the purpose of interpretation that the State Government, being a person is regulated under Section 3 of the Regulation prohibit transfer of their land situated in the Scheduled Areas in which mines are discovered or for any other purpose. G.O.Ms. No. 971 /Rev. B of 1969 provides that Government land should not be given to non-tribals. The contention of Shri Sudhir Chandra that the Government being empowered to operate the Regulation, by implication, the Regulation does not apply to Government land per force, is untenable in view of the above unambiguous constitutional,....
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....al area. In the light of the language used in Section 3 of the Regulation and Section 11(5) of Mining Act. we have examined the question taking aid of the source thereof, i.e., para 5:(2)(a) and (b) of the Fifth Schedule and interpreted the word 'person' to include Stale Government. The object of Fifth and Sixth Schedules to the Constitution, as seen earlier, is not only to prevent acquisition, holding or disposal of the land in Scheduled Areas by the non-tribals from the tribals or alienation of such land among non-tribals inter se but also to ensure that the tribals remain in possession and enjoyment of the lands in Scheduled areas for their economic empowerment. social status and dignity of their person. Equally exploitation of mineral resources national wealth undoubtedly, is for the development of the nation. The competing rights of tribals and the State are required to be adjusted without defeating rights of either. The Governor is empowered, as a constitutional duty, by legislative and executive action, to prohibit acquiring, holding and disposing of the land by non-tribals in the Scheduled Areas. The Cabinet, while exercising its power under Article 298, should equally b....
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....ibals according to their qualifications in their establishment/factory: (f) establishment of hospitals and camps for providing free medical-aid and treatment to the tribals in the Scheduled Areas; (g) maintenance of sanitation; (h) construction of houses for tribals in the Scheduled Areas as enclosures; The expenditure for the above projects should be part of his/its Annual Budget of the industry establishment or business avocation/venture. In this behalf, at least 20 percent of the net profits should be set apart as a permanent fund as a part of industrial/business activity for establishment and maintenance of water resources, schools, hospitals, sanitation and transport facilities by laying roads etc. This 20% allocation would not include the expenditure for reforestation and maintenance of ecology. It is needless to mention that necessary sanction for exemption of said amount from income-tax liability, may be obtained; and the center should ensure grant of such exemption and see that these activities are undertaken, carried on and maintained systematically and continuously. The above obligations and duties, should be undertaken and discharged by each and every person....
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.... claimed to have been made in favour of the State instrumentalities, i.e., A.P.S.M.D. Corporation Ltd. It has already been held that transfer of the Government land in favour of its instrumentalities, in the eye of law, is not a transfer but one of entrustment of its property for public purpose. Since, admittedly, a. public Corporation acts in public interest and not for private gain, such transfer stands excluded from the prohibition under para 5(2)(o) of the Fifth Schedule and Section 3(1)(a) of the Regulation. Such transfer or lease, therefore, stands upheld. But a transfer of mining leases to non-tribal natural persons or company, corporation aggregate or partnership firm etc. is unconstitutional, void and inoperative. The A.P.S.M.D. is required to exploit minerals in conformity with law, namely. Forest Conservation Act, 1980, E.P.A etc. ENCLOSURES - WHETHER GOVERNMENT CAN LEASE THE LANDS IN MINING OPERATION It is an admitted position that five enclosures comprise of 426 acres of land occupied by the tribals in those villages. Re-survey started in 1990 jointly by Revenue, Forest and Mining Departments and was completed and the report was made on August 2, 1990. Though ....
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....and would direct the concerned department to pay compensation determined on the basis of the principles laid in the Act with a right of appeal thereon. Thereafter, a declaration would duly be published in the Gazette with fixed boundaries that the "aforesaid area are a reserve forest". Similar is the provision and procedure in the Wild Life Sanctuary under Wild Life (Protection) Act, 1972. Therein too, provisions have been made declaring them as sanctuary for preservation and protection of wild life etc. However, the right to residence and right to collect forest produce, forest goods or agriculture etc. to the tribals is regulated under the appropriate provisions. The words 'forest' or 'forest land' have not been defined in the A.P. Act or the Central Forest Act. In Collins English Dictionary (1979 Edn.) the word 'forest' has been defined as page 568 as "a large wooded area having a thick growth of trees and plants, the trees of such an area, something resembling a large wooded area especially in density". Shorter Oxford English Dictionary defines 'forest' as "an extensive tract of land covered with trees and undergrowth, sometimes intermingled with pasture". In Webster's compr....
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....tion, agency or any other organisation, not owned, managed or controlled by the Government, (iv) that any forest land or any portion thereof may be cleared or trees which have grown natural in the land or portion for the purpose of using it for reforestation. Clauses (iii) and (iv) were added by Amendment Act 69 of 1988 w.e.f. December 19, 1988. The explanation thereto of non-forest purpose was defined to mean the breaking up or dealing of any forest land or portion thereof for the cultivation of but does not include any work relating to ancillary to conservation development and management of forest and wildlife, namely, establishment of check-posts, fire lines ... or other like purposes. Section 2, therefore, prohibits de-reservation of the forest or use of any forest land for and non-forest purpose or assignment by way of lease or otherwise of any portion of land to any private person other than Government controlled or owned, organised or managed by the State Government agency; it prohibits clearance of trees or natural growth in the forest land or any portion thereof to use it for reforestation, except for preservation, Breaking up or clearance of forest land or a portion there....
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....ade, natural environment flora and fauna as well as bio-diversity. In Rural Litigation and Entitlement Kendra v. State of U. P. 1969 Supp (1) SCC 504 : AIR 1989 SC 594 in paragraph 14, this Court had observed that consciousness regarding environmental upkeep and cognizance of ecological importance had in recent times entered into governmental activities. The EPA protects to upkeep forest land or reserved forest, prevents deforestation, encourages forestation and takes steps as are necessary to preserve ecology. In paragraph 23, it was held that mining activity was held uncongenial to ecology and environment. Trees are friends of mankind and forests are inevitable necessity for human existence, healthy living and the civilisation to thrive and flourish. The need of protection and preservation of forests is fundamental duty of every citizen and all persons in comprehensive sense, i.e., juristic as well. The problem of forest preservation and protection was no more to be separated from the life style of tribals. The approach required is shift from the dependence on law and executive implementation to dependence on the conscious and voluntary participation of all persons. Maintenanc....
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....ing charge of Forest Departments, have a duty to prevent mining operations affecting the forest. It is significant to note that, whether mining operations are carried on within the reserved forest or other forest area, it is their duty to ensure that the industry or enterprise does not denude the forest to become a menace to human consistence nor a source to destroy flora and fauna and biodiversity. The provisions of the FC Act get attracted to ensure preservation of forest. In Garwal case, this Court, prohibited mining operations. In Rural Litigation and Entitlement Kendra v. State of U.P. 1989 Supp (1) SCC 537 and State of H.P. v. Ganesh Wood Products it expressed anxiety to ensure eco-friendly environment. In the later case, two Judges Bench applied provisions of ECA and EPA and held that the application of sustainable development requires that appropriate assessment should be made of the forest wealth and the establishment of industries based on forest produce; other working should also be monitored closely to maintain the required ecological balarice,; No distinction can be made between the Government; forest and private forests in the matter of forest wealth of the nation and....
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....d that in respect of the lands leased to the 19th respondent, a sum of Rs. 350 crores has been invested for manufacturing of "High Purity Sea Water" magnified by using 100% import high technology. The said product saves annually 70 crores of foreign exchange. It is essential for moderation of steel industry. The product also has wide application for major core industry saving large foreign exchange for the country. He has also stated that the mining operations are carried on in plain area only and thereby forest area is not affected. However, since these averments have been made for the first time in the written submissions, after Court reserved its decision, we are deprived of the advantage of having the response of the State Government, which in fact, has not taken any active interest in this litigation. We, therefore, feel it necessary that the Chief Secretary of the Andhra Pradesh State should constitute a committee Consisting of himself, Secretary (Industry), Secretary (Forest), Secretary (Tribal Welfare/Social Welfare) to have the factual information collection and consider whether it is feasible to permit the industry to carry on mining operations. If the Committee so opines....
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....he regulations under the FC Act and EPA. It would be open to the State Government to organise Co-operative., Societies composed solely of the Scheduled Tribes to exploit mining operations within the scheduled area subject to the compliance of the FC Act and EPA. The appeal of Samatha are accordingly allowed. The judgment of the High Court stands set aside and directions are issued accordingly. The appeal of Hyderabad Abrasives and Minerals(P) Ltd. Stands dismissed since their licence has already expired by efflux of time and grant of renewal is prohibited under F.C. Act and Section 11(5) of the Mining Act. No costs. S. Saghir Ahmad, J. (Concurring with K. Ramaswamy, J.) Leave granted. I have had the advantage of going through the judgments prepared separately by Esteemed Brothers Ramaswamy and Pattanaik. I am inclined to agree with Brother Ramaswamy for the reasons which I am presently setting out herein below. Tribals were the first settlers in this country but they were gradually pushed back to the forests and hills by subsequent settlers who were non-tribals. The forests and hills provided a natural barrier and i....
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....y specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. (2) The Governor may make regulations for the peace and good Government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Dominion Legislature, or of the Provincial Legislature, or any existing Indian Law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect. In B. Shiva Rao's Study Volume of "The Framing of India's Constitution" it is stated as under: There were two dangers to which subjection to normal laws would have specially exposed these peoples, and both arose out of the fact that they were primitive people, simple, unsophisticated and frequently improvident. There was a risk of their agricultural land passing to the more civilized section of the population, and the occupation of the tribals was for the most part agricultural; and, secondly, they were likely to get into the "wiles of the moneylender." Th....
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....security of land tenure, freedom in the pursuit of their traditional means of livelihood, and a reasonable exercise of their ancestral customs: not self-determination or rapid political advance, but experienced and sympathetic handling and protection from economic Subjugation by their neighbours. The Commission realized that perpetual isolation from the main currents of progress would not be a satisfactory long-term solution : and that it would be necessary to educate these people ultimately to become self-reliant. In this direction practically nothing had been achieved. The Commission observed: The responsibility of Parliament for the backward, tracts will not be discharged merely by securing to them protection from exploitation and by preventing those outbreaks which have from time to time, occurred within their borders. The principal duty of the administration is to educate these peoples to stand on their own feet, and this is a process which has scarcely begun. The Commission recognised this problem to be one of considerable magnitude and complexity. On the one hand it was too large a task to be left to the efforts of missionary societies and individual, officials, since ....
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.... "areas along the frontiers of India or in Baluchistan which are not part of British India or of Burma or of any Indian State or of any foreign State." The position of these areas was even more peculiar. In terms of the definition they did not form part of the territory of British India and neither the Parliament of Britain nor the Legislatures of British India claimed or exercised any direct legislative powers over these areas. The powers exercisable in these areas were described as arising out of "treaty, grant, usage, sufferance or otherwise" and the Act of 1935 contained a specific authorization enabling these powers to be exercised as part of the executive authority of the Central Government, by the Governor-General acting in his discretion, and therefore outside the area of responsibility of the Ministry. It is further stated as under: The Cabinet Mission's statement of May 16, 1946, mentioned the excluded and partially excluded areas and the tribal areas as requiring the special attention of the Constituent Assembly. The Advisory Committee on Fundamental Rights and Minorities, to be set up at the preliminary ....
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.... From the beginning the objectives of the Government's policy in regard to the tribes and tribal areas were primarily directed to the preservation of their social customs from sudden erosion and to safeguarding their traditional vocations without the danger of their being pauperized by exploitation by the more sophisticated elements of the population. At the same time it was recognised that this stage of isolation could not last indefinitely; a second and major objective was therefore laid down, that their educational level and standard of living should be raised in order that they might in course of time be assimilated with the rest of the population. From this point of view the Subcommittee was of the opinion that the policy of exclusion and partial exclusion had not yielded much tangible result in the progress of the aboriginal areas towards the removal of their backward condition or in their economic and educational betterment. The Sub-Committee did not therefore find it advisable to abolish the administrative distinction between the backward areas and the rest of the country; and it recommended that while" certain areas like S....
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....as the Tribes Advisory Council. The membership of the Tribes Advisory Council in each of the States was to be between ten and twenty-five, of whom three-fourths were to be elected representatives of the Scheduled Tribes in the Legislative Assembly of the State as in the case of the Punjab and the United Provinces; it was laid down as the duty of the Tribes Advisory Council generally to advise the Government on all matters pertaining to the administration of the scheduled area and the welfare of the tribes. The State Government was statutorily enjoined to give effect to the advice of the Council if it considered that an Act, whether of Parliament or of the Slate Legislature, relating to the following matters, was unsuitable for, or required modification in, its application to a scheduled area: (a) marriage; (b) inheritance of property; (c) social customs of tribes: (d) land, including rights of tenants, allotment of land and reservation for any purpose: (e) village administration and village panchayats. It was made obligatory that the Governor should act according to the advice of the Tribes Advisory Council on the application of Acts relating to these matters. He was not boun....
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....n land everywhere. We have provided accordingly that the allotment of vacant land, belonging to the State in scheduled areas should not be made except in accordance with special regulations made by the Government on the advice of the Tribes Advisory Council. In Part II of Appendix C to this report, it was indicated as under: Vacant land in a Scheduled Area which is the property of the State shall not be allotted to a non-tribal except in accordance with rules made by the Provincial Government in consultation with the Tribes Advisory Council. The recommendations of the two Subcommittees were not considered by the Constituent Assembly in its Session in July, 1947, when the broad principles of the Constitution were settled since, as explained by Dr. Ambedkar, they were received too late. The Drafting Committee however, considered these proposals at the stage of drafting and suitable provisions including Schedule V and VI were included in the -Draft Constitution of February, 1948 in which it was indicated that the transfer of land in scheduled area from tribal to non-tribal was forbidden; and the State Government was also prohib....
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....th respect to any matter not provided for by any law for the time being in force in such area. (3) The Governor may also make regulations for any scheduled area in the State with respect to the tribal of cases relating to offences other than those which are punishable with death, transportation for life or imprisonment for five years or upwards or relating to disputes other than those arising out of any such laws as may be defined in such regulations, and may by such regulations empower the headmen or panchayats in any such area to try such cases. (4) Any regulations made under this paragraph when promulgated by the Governor shall have the same force and effect as any Act of the appropriate Legislature which applies to such area and has been enacted by virtue of the powers conferred on that Legislature by this Constitution. 151. Clause 6 which dealt with the alienation and allotment of land to non-tribals in scheduled areas provides as under: 6. Alienation and allotment of lands to non-tribals in scheduled areas: (1) It shall not be lawful for a member of the Scheduled Tribes to transfer any land in a scheduled area to an....
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....ade. No provision, so far as allotment of Government land was concerned, was made for the State of United Provinces and West Bengal for which the only provision made was that the Governor may make regulations so as to prohibit the transfer of land in a scheduled area by a member of the Scheduled Tribe to any person who is not a member of the Scheduled Tribe. It also requires to be noticed that the Regulations made by the Governor for all these States to which Schedule Fifth was applicable were to have the same force and effect as an Act of the appropriate Legislature. But this was not stated in respect of rules which could be made by the Governor under Clause 6(2) of the Fifth Schedule applicable to States of Madras, Bombay, West Bengal, Bihar, the Central Provinces and Berar, and Orissa. The comments and suggestions made on the Draft Constitution including the Fifth Schedule prepared by the Drafting Committee, so far as relevant paras, namely, para 5, para 6, para 12 and para 17 of the Fifth Schedule, are concerned, and the decision of the Drafting Committee thereon are quoted below: PARAGRAPH 5 The Government of Orissa has questioned the propriety of the provisions....
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....ions' in order to regularize anything done under the Act during the interim period. Even so, however; it is likely that the rights of several parties might be seriously affected and there might be much confusion. The provincial Government, however, see no easy solution of such difficulties if the plan envisaged in para 5(1) of Part II of the Fifth Schedule is adhered to. Note : The provisions of sub-paragraph (1) of paragraph 5 of the Fifth Schedule are based on the recommendation of the Sub-Committee on Excluded and Partially Excluded Areas (other than Assam) as adopted by the Advisory Committee. Attention is invited in this connection to paragraphs 10 and 11 of Volume I (Report of the Excluded and Partially Excluded Areas (other than Assam) Sub-Committee). It will appear from the said report that the present system under which the Governor in his discretion applies the legislation did not appeal to the Committee as this principle would be regarded as undemocratic even though the Governor in future might be an elected functionary. The criticism offered by the Government of Orissa to the provision set out in sub-paragraph (1) of paragraph 5 will also apply if the present provisi....
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....er, sub-paragraph (4) of paragraph 5 of Part II of the Fifth Schedule does not specifically refer to the Dominion Parliament, the provincial Government are doubtful if the power to make regulations conferred by sub-paragraph (2) of paragraph 5 will be equally plenary or will be restricted to matters on which the State Legislature will be competent to legislate. Although the term "appropriate legislature" used in sub-paragraph (4) of paragraph 5 would etymologically include the "Dominion Parliament" as well as "the State Legislature", it appears from a perusal of the Draft Constitution that the draftsman made a distinction between "Parliament" on the one hand and "State Legislature" on the other. It may, therefore, be the intention of the Draft Constitution that the Governor's power to make regulations under subparagraph (2) of paragraph 5 will not extend to matters included in the Central List. If that is the plan, the provincial Government beg to differ from it, as they feel that the provincial Governor's power to make regulations for the good Government of scheduled areas should continue to be as plenary as it is at present. Note: The power to make regulations conferred by sub....
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....ub-paragraph (2). L. N. Sahu : That a suitable proviso be added to paragraph 6(1) of the Fifth Schedule to permit the making of regulations by the Provincial Government in order to prohibit the transfer of lands by members of a particular Scheduled Tribe to members of any other Scheduled Tribe. Note: Paragraph 6 of Part II of the Fifth Schedule follows the recommendation of the Sub-Committee, on Excluded Areas as adopted by the Advisory Committee. This amendment involves a question of policy. If it is accepted, then it should be redrafted as follows: After sub-paragraph (3) of paragraph 5 of Part II of the Fifth Schedule, the following subparagraph be inserted: (3-A) The Governor may also make regulations so as to prohibit the transfer of any land in a scheduled area in the State by a member of arty Scheduled Tribe to a member of any other Scheduled Tribe. Decision of the Drafting Committee, October. 1948 : The Drafting Committee decided to recast sub-paragraph (1) of paragraph 6 of Part II of the Fifth Schedule as follows: (1) It shall not be lawful for a member of the Scheduled Tribes to tr....
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.... thereof in the State subject to such exceptions and modifications as he may specify in the notification. (2) The Governor or Ruler, as the case may be, may make regulations for the peace and good Government of any area in a State which is for the time being a scheduled area. In particular and without prejudice to the generality of the foregoing power, such regulations may-- (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in any such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such areas; (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such areas. (3) In making any regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor or Ruler may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. (4) All regulations made under this paragraph shall he submitted forthwith to the President and until assented to by him shall have no effect. (5) No regulation shall be made under this paragraph unless....
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....nbsp; So far as land is concerned, it is not our intention, nor of the provincial Governments where the tribals (sic) have provincial Governments (sic) have made laws to see that land should not pass out of the hands of the tribal people; in our province, the Chhota Nagpur Tenancy Act was modified and altered long long before 1937 in order to see that no land should pass out of the hands of the tribal people. But, there were various difficulties in the original schedule that land should not be settled by the Government to anyone except the tribal people. In the scheduled areas, there are not only the tribal people; there are Harijans also; there are other castes also who are equally backward, if not otherwise, at least economically, as the tribal people. Is it, then, Sir, our wish that in those areas where the Harijans and other backward people remain, land should not be settled by the Government to them also? Of course, the tribal people should have the preference as wells the Harijans living in those areas. If these things are made elastic, we should have nothing to say on this point. But, the Government should see and in the future we also should see that preference is given to ....
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....a tribal to a person who was not a member of the Scheduled Tribe be totally prohibited and if such a transfer was made, it was to be treated as null and void. Government land in the scheduled areas could also not be allotted to persons who were not the members of the Scheduled Tribes. If such land was proposed to be allotted to them, it could be done only under the regulations made by the Governor. The basic concept was that the land of the Scheduled Tribes should be protected and should not be frittered away by transfer nor should any non-tribal be allowed to infiltrate in the scheduled area by getting an allotment of land made in his favour. In case of a transfer of land which was void, the power to restore land to a tribal or his heirs after evicting the non-tribal was also vested in the Government. It has already been seen above that in the Draft Constitution, prepared by the Drafting Committee, there was a clear prohibition on the allotment of Government land to non-tribals except in accordance with the rules made by the Governor. In the Constituent Assembly when the Draft Fifth Schedule was considered, no member raised any objection that the Government should be free to....
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....r to: (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area; (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. The power to make Regulations also includes the power to repeal or amend any Act of Parliament or of the State Legislature or any existing law which may, for the time being, be applicable to the scheduled area. The power to make Regulations is undoubtedly legislative in character. The power to issue directions under para 5(1) of the Fifth Schedule as to the applicability of an Act of Parliament or State Legislature with such exceptions and modifications as the Governor may direct, is also legislative in character. In Chatturam v. Commr. of Income-tax. Bihar (1947) FCR 116 : (1947) FLJ 92 : AIR 1947 FC 32, it was laid down with reference to Section 92(1) of the Government of India Act, 1935 that when the Governor issues a Notification under Section 92(1) by which Federal Law are applied to Excluded and Partially Excluded Areas (Scheduled Areas), he....
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.... Regulation, 1959. These Regulations were amended by Regulation 1 of 1970, again by Regulation 1 of 1971 and by Regulation 1 of 1978. The constitutional validity of these Regulations was challenged in P. Rami Reddy v. State of Andhra Pradesh and upheld by this Court. Para 3(1)(a) of the Regulation which opens with a non obstante clause provides that a transfer of immovable property situate in the Agency Tracts by a person, whether or not such a person is a member of the Scheduled Tribe, shall be absolutely null and void. This puts a complete ban on the transfer of immovable properties in the Agency Tracts by any person whatsover, whether he is a member of the Scheduled Tribes or not. There is, however, one exception to this rule as it is provided that such transfer shall not be null and void if the transfer is made in favour of a person who is a member of the Scheduled Tribe or is a Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 which is composed solely of members of the Scheduled Tribes. Para 3(1)(c) provides that if a person "who intends to sell his land, is not able to sell that land either because the member b....
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....heduled Tribe. Para 3A of the Regulation places two restrictions on a person intending to mortgage his property. The first restriction is that it can be mortgaged only in favour of a person who is a member of the Scheduled Tribe or to a Co-operative Society or a Land Mortgage Bank or any other bank or financial institution approved by the State Government. The Explanation appended to Para 3A(1) defines a "Bank". The other restriction is that while mortgaging the property, it would not be open to that person to deliver possession to the mortgagee. Clause 2 of Para 3A provides that in case the immovable property which was mortgaged is brought to sale on account of default in payment of the mortgage money or the interest payable thereon, the said property shall be sold only to a member of the Scheduled Tribe or to a Co-operative Society composed solely of members of the Scheduled Tribe. Explanation appended to this Clause specifies as to what would be treated as Co-operative Sociacties. It provides that if the Government is a member or any Co-operative Society, it, namely, the said Society, shall also be deemed to be a Society registered or deemed to be registered under the Andhra ....
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....s the property, at the disposal of the State Government. In all these circumstances, when the property either comes to vest in the State Government or becomes a property at the disposal of the State: Government, the Government cannot, in view of the above, transfer the property to a "person" of its own choice but has to transfer, assign or sell to a member of the Scheduled Tribe or a Co-operative Society of the Scheduled Tribes. The possibility of the Government disposing it of to a person who is not a member of the Scheduled Tribe is totally ruled out by the Regulations by providing that it shall be sold, assigned or transferred only to tribals or their Cooperative Society. If this applies to properties which become the Government properties, how the properties which are already the Government properties could be excluded from the applicability of these Regulations? The Government has Jo be bound down to the Constitutional scheme sought to be enforced through Regulations made by the Governor under Para 5(2) of the Fifth Schedule and cannot be permitted to transfer its own properties in favour of non-tribals so as to allow their infiltration into the Scheduled Area. The prohi....
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....ibe or the immovable property situated in Agency Tracts may be protected and be not frittered away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their Cooperative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone. The words "or in any other manner" in Para 3(1)(c) or the words "otherwise dispose it of as. if it was a property at the disposal of the State Government" occurring in Para 3(2)(b) have to be read in that context with the result that even if the Government intended to deal with such immovable properties "in any other manner" it could deal only in a manner which would ultimately benefit a member of the Scheduled Tribe or their Co-operative Societies. The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pradesh clearly seek to implement the national policy that the custom, culture, life-style, and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal....
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....te, assign or let out the Government land only to members of Scheduled Tribes. Section 11(5) introduced in the Act only seeks to give effect to what was already contained in the Fifth Schedule and the Regulations made thereunder. In order to set at rest the above controversy raised at various levels that the Government land could also be allotted to non-tribals, the Amendment was brought about in the Mines and Minerals (Regulation and Development) Act, 1957 so as to make it sure that it was never the intention that the Government land could be allotted to non-tribals. The Amendment only reiterates the existing position. I am short of time as Brother Ramaswamy is retiring tomorrow. It is not possible for me to write out in detail on other points involved in the case. Since I am agreeing with Brother Ramaswamy on the findings recorded by him on other issues involved in the case, specially those relating to forests and Conservation of Forests Act and the environmental questions, I conclude by saying that I am in respectful agreement with him. 1 also agree, with the ultimate directions issued in the Judgment. 198. In view of the above, I am also of the opinion that the appeals of....
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....d. The Director of Mines and Geology, Government of Andhra Pradesh who was respondent No. 2 before the High Court filed a counter-affidavit taking the stand that the leases in question in favour of the private respondents were prior to the Conservation Act coming into force and, therefore, the question of taking previous consent of the Central Government did not arise. On the question of alleged violation of the provisions of the Regulation it was stated that the prohibitions and restrictions in the Regulation are not intended to apply to the Government land and there was no bar under the Regulation for the Government to grant mining leases in favour of the non-tribals. On the question of applicability of Section 11(5) of the MMRD Act it was contended that the said provision is prospective in nature and no mining lease has been granted after enforcement of Section 11(5) of the MMRD Act in favour of any non-tribal. Respondent No. 4, the Forest Officer filed the Counter affidavit stating that the Borra forest black was notified as reserve forest and some of the respondents have encroached into the reserved forest area and to that extent their operations are illegal. The private re....
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....thority in that regard seeking necessary relief and on such petitions being filed the appropriate authority would pass appropriate order bearing in mind the provisions of Section 2 of the Conservation Act. With these, conclusions the Writ Petitions having been dismissed the present appeals by special leave have been preferred. Though the contentions before the High Court were limited to the aforesaid extent as indicated but before this Court the horizon was expanded and Dr. Rajiv Dhawan, learned senior council appearing for the appellant raised several contentions in assailing the validity of the continuance of the mining leases which according to the learned Counsel are situated within the scheduled area. These two appeals initially had been heard by a Bench of two judges but later on in view of the question of law raised as well as in view of certain divergence of views, has been placed before a three Judge Bench and the matter had been re-argued. It has been averred before this Court that the appellant Society was started in the year 1990 at the request of the local tribes of Peda Mallapuram area and the main objects of the society are implementation of various welfare scheme....
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....fidavit taking the positive stand that the mining leases held by them do not form part of the scheduled area and further the leases have been granted much prior to the amended provisions of the Regulation as well as much prior to the coming into force of the Conservation Act and, therefore, are not hit by any prohibitions and restrictions contained in those provisions. Respondent No. 19 has filed the counter-affidavit taking the stand that the lease has been granted in favour of Shri M. Laxmi Narainan on 17.11.1984 and certain other leases had been granted in Anantgiri Mandal to said Shri M. Laxmi Narainan on 24.1.1986. The transfer of mining leases from the original lessee was granted by the appropriate authority under the provisions of the MMRD Act and the Mineral Concession Rules framed thereunder and there has been no violation of any Act or Regulation in allowing such mining activities. It has also been stated that the mining activity does not encroach upon any forest area or reserved forest area and nowhere has the petitioner provided any factual foundation for allegation to demonstrate that any part of the land held by respondent No. 19 is within any forest land. And in the ....
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....possessed is not correct. It has also been averred that the mining activities are on the exposed mineral deposit and no extensive mining has been taken in the area damaging the forest. With regard to the benefits obtained by the State on account of such mining activities, it has been stated that not only it has provided employment opportunity to the local tribals but also encourages mineral based industries in the district which provides good opportunity to the educated unemployed. The State in its affidavit has also averred that all the mining leases were granted in accordance with the prescribed law and there is no possibility of endangering the Borra caves by the alleged mining activities. The State has further stated that after coming into force of Section 11(5) of the MMRD Act no mining leases within the scheduled area has been granted in favour of any non-tribal in contravention of the aforesaid provisions of the MMRD Act. It has also been stated that every care has been taken by the Government to protect the interest of the tribals and to ensure that there is no blasting in the mining area to rehabilitate the affected people. The State in its affidavit has also indicated as ....
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....for administration of tribal area could be achieved and such an interpretation would not only prevent the exploitation of tribals from non-tribals but would also advance the interest of the tribals and would secure substantive distributive justice for the tribals. According to the learned senior counsel appearing for the appellant the regulations and statutes affecting the tribal regime must be given a purposive interpretation so that the raison d'etre of the regime is not defeated. So far as the Conservation Act is concerned, the counsel argued that in view of the embargo contained in Section 2 of the Conservation Act prior permission of Central Government not having been obtained the mining activities within the forest area cannot be permitted to be continued. In relation to the provisions of the Environment Protection Act, the learned senior counsel contended that the Central Government is under a statutory duty to protect the environment and co-ordinate the activities of the State Government under the Environment Protection Act of 1986 and such statutory obligation not having been discharged by the Central Government and the mining activities within the schedule are a being haz....
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.... the normal operation of ordinary law and give such protection as they might need. Even in Montague Chelmsford Report of 1918 it was suggested that the political reforms contemplated for the rest of India could not apply to these backward areas where the people were primitive and thus these backward tracts were to be excluded from the jurisdiction of the reformed Provincial Governments and administered personally by the heads of the Provinces. In the Government of India Act 1919 these tracts were divided into two categories and some of the areas were wholly excluded from the scope of the reforms. Therefore, neither the Central nor the Provincial Legislature had the power to make laws applicable to these areas and the power of legislation was vested in the Governor acting with his Executive Council, the Ministers being excluded from having any share in the responsibility for the administration of these areas. Until the Simon Commission's report, the primary object and the policy of the government in relation to the tribal areas was to give the inhabitants of the tribal areas security of land tenure, freedom in the pursuit of their traditional means of livelihood, and a reasonable ex....
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....rnor to make Regulations for the peace and good government in any area in the State which is a schedule area nowhere indicates that there should be no alienation of any land in favour of a non-tribal within the said area. The aforesaid provision is an enabling provision conferring power on the Governor to frame Regulation for peace and good government and the Regulation in question may provide for prohibiting or restricting transfer of land by or among the members of the Scheduled Tribes, regulate the allotment of land to members of the Scheduled Tribes and regulate the carrying on business as money-lender by persons who lend money to the Scheduled Tribes. It has, therefore, become necessary to find out from the Debates in the Constituent Assembly as to whether the Constitution makers at all intended to prohibit alienation of any land in favour of a non-tribal within the tribal area. In course of arguments while placing the Debates in the Constituent Assembly Dr. Rajiv Dhawan, learned senior counsel at one point of time had advanced an extreme argument that all lands within the tribal area belong to the tribals and only during the British regime the trials were denied of their righ....
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....considered the suggestion of the Advisory Committee and drafted the Vth Schedule of the Constitution. We are in the present case really concerned with Clause 6 dealing with alienation and allotment of lands which is extracted hereinbelow: 6. Alienation and allotment of lands to non-tribals in scheduled area: (1) It shall not be lawful for a member of the Scheduled Tribes to transfer any land in a scheduled area to any person who is not a member of the Scheduled Tribes; (2) No land in a scheduled area vested in the State within which such area is situate shall be allotted to, or settled with, any person who is not a member of the Scheduled Tribes except in accordance with rules made in that behalf by the Governor in consultation with the Tribes Advisory Council for the State. Clause 7 of the Schedule V deals with money lending which is extracted hereunder: 7. Regulation of money - lending in scheduled areas: The Governor may, and if so advised by the Tribes Advisory Council for the State shall, by public notification direct that no person shall carry on business as a money-lender in a scheduled ....
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.... person who is not a member of Scheduled Tribe was rejected and, therefore, in the final form in Schedule V there is no such indication that even the government land within the Scheduled area should not be allotted to a non-Scheduled Tribe person. B. Shiva Rao in his book "THE FRAMING OF INDIA'S Constitution - A STUDY, dealing with the Scheduled and Tribal Areas has stated that for nearly a century under British rule special laws were applicable to what were called 'backward areas' and two dangers were there to which subjection to normal laws would have specially exposed these people, and both arose out of the fact that they were primitive people, simple unsophisticated and frequently improvident. There was a risk of their agricultural land passing to the more civilized section of the population, and the occupation of the tribals was for the most part agricultural, and, secondly, they were likely to get into the 'wiles of the moneylender". The primary aim of government policy then was to protect them from these two dangers and preserve their tribal customs : and this was achieved by prescribing special procedures applicable to these backward areas. After going through the Consti....
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....conscionable bargaining should be restored to their property. By taking recourse to this Article the law invalidating transfers of land belonging to a member of the Scheduled Tribes and restoration of such land to the transferer was held constitutionally valid. Similarly, when Article 39(b) of the Constitution enjoins upon the State to have its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, what, it connotes is a duty on the State for building of a welfare State and an egalitarian social order. The object is that the basic need of a common man must be fulfilled and the State should endeavour to change the structure of the society. The aforesaid provision no doubt, may support a case of nationalisation of material resources but by no stretch of imagination it can be said that it enjoins upon the State to exploit the mineral resources within the Scheduled area by itself or through the Scheduled Tribes alone. The declaration of 'Right to Development' adopted by the United Nations and ratified by India no doubt casts a responsibility on the State to promote and protect social and ....
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....ted to by the President. Section 5(2) of Schedule V indicates the amplitude of the Governor's power to make regulation for peace and good government in the Scheduled area in a State. It also stipulates the field over which regulations can be framed by the Governor as contained in Clauses (a) to (c) thereof. The Governor is the sole judge to decide as to what would be the regulation which would be necessary for the peace and good government of the area in question. The ambit of the power of Governor is not restricted to the entries in the VIIth Schedule and the Governor is empowered even to over-ride an act of Parliament or of a State Legislature so far as its applicability to the Scheduled area is concerned. Clauses (a) to (c) of Section 5(2) of Schedule V indicate that the Governor may frame regulation prohibiting or restricting the transfer of land by or among members of the Scheduled Tribes within the Scheduled area, regulate the allotment of lands to the members of the Scheduled Tribes in the area; and regulate the carrying on of business as money-lender by persons who lend money to the members of the Scheduled Tribes in such area. It would thus appear, as the Britishers dur....
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.... person in possession of the property claiming under the transfer, after due notice to him in the manner prescribed and may restore it to the transferor or his heirs. (b) If the transferor or his heirs are not willing to take back the property or where their whereabouts are not known, the Agent, the Agency Divisional Officer or prescribed officer, as the case may be, may order the assignment or sale of the property to any other member of a Scheduled Tribe or a registered society as defined in Clause (b) of Section 2 of the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), 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. (3)(a) Subject to such conditions as may be prescribed, an appeal against any decree or order under Sub-section (2) shall lie within such time as may be prescribed -- (i) if the decree or order was passed by the Agent, to the State Government; (ii) if the decree or order was passed by the Agency Divisional Officer, to the Agent; and (iii) if the decree or order was passed by any other officer, to the agency Divisional officer or Agent, as may....
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....o Scheduled Tribe in respect of his immovable property. The said embargo enabled a member of a Scheduled Tribe to transfer the immovable property only in favour of another member of a Scheduled Tribe or in favour of a co-operative society composed solely of members of a Scheduled Tribe. If the transfer was intended to be made in favour of a non-Scheduled Tribe member then it could be so made but only with previous sanction of the State Government or with the previous consent in writing of the agent or any prescribed officer subject to the rules made in that behalf. Thus immovable property even belonging to a Scheduled Tribe could be lawfully transferred in favour of a non-Scheduled Tribe member but only with previous sanction of the State Government. Under the pre-amended provisions, therefore question of any falter on the powers of the State Government in transferring government land in favour of a non-tribal did not arise at all. The question that arises for consideration is whether there has been any change under the provisions of 1970 and has there been a total prohibition of transfer of any land in favour of a non-Scheduled Tribe person in the Agency tracts. Dr. Rajiv Dhawa....
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....ion 3(1)(a) of the regulation should be adhered to. Mr. Sudhir Chandra, learned Counsel appearing for the respondent, on the other hand contended that the regulation in question prior to its amendment does not prohibit transfer of land by any person in favour of non-Scheduled Tribe person but merely postulates that such a transfer must be with the consent of the competent authority. Though after the amendment in 1970 a more stringent measure has been adopted but all the restrictions are in relation to the land belonging to a Scheduled Tribe. A statutory presumption has been brought in so that whenever within the Agency tract any immovable property is found to be in possession of a non-Scheduled Tribe person then burden would be on the non-Scheduled Tribe person to establish that he has not come in possession of the land by way of a transfer from the Scheduled Tribe person. The aforesaid stringent provisions has obviously been made to achieve the main objective to save the tribals from the exploitation of non-tribals. But by no stretch of imagination the restrictions contained in Regulation 3(1) even after its amendment can be said to apply to the State Government in respect of t....
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....ted by the non-tribals. It is with that objective Article 244 of the Constitution made the Fifth Schedule applicable to administer scheduled area and tribal area and the Fifth Schedule of the Constitution, in turn, conferred power on the Governor to notify the laws made by Parliament or by the legislature of the State to apply or not to apply and further Governor has been conferred power to make regulation for the peace and good government of any area within a State. Such wide power has been conferred upon the Governor which is plenary in nature so that Governor can by regulation prevent exploitation of the tribals from the non-tribals. When such legislations made by Governor in exercise of power has been challenged, Courts have upheld the validity of the same on the ground that it is intended to save the tribals from the other non-tribals in the area who usually take advantage of the simplicity and ignorance of the tribal people. But it is difficult to accept the contention of Dr. Rajiv Dhawan, learned senior counsel appearing for the appellant, that the constitutional scheme intended total prohibition of transfer of even the government land in favour of the non-tribal. In P. Rama....
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....I SHOULD BE INTERPRETED TO MEAN A NATURAL PERSON Dr. Rajiv Dhawan, the learned senior counsel appearing for the appellant contended that the word 'person' occurring in first part of Section 3(a) of the Regulation should be construed to mean the 'State' so that the real object of prohibiting alienation of any land within the scheduled area in favour of a non-tribal person can be achieved. According to the learned Counsel it is a permissible rule of construction of a statute to construe the same words used in the same statute differently depending upon the context in which it is used and the object sought to be achieved. Mr. Sudhir Chander, learned Counsel appearing for the respondents on the other hand contended that ordinarily a particular word used in a particular statute should receive the same meaning unless and until it is necessary to ascribe a different meaning to achieve any particular objective for which the statute is intended. But according to the learned Counsel it was not the intention of the Constitution makers to prohibit alienation of any land within the scheduled area in favour of a non tribal person and on the other hand the objective was to put restrictions on ....
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....ts range of meaning, from its immediate setting on the nature of the subject with regard to which it is employed. But this Court has accepted the principle that the same word used at different places in the same clause of the same Section may not bear the same meaning at each place having regard to the context of its use. In fact in the case of Maharaj Singh v. State of U.P. and Ors. , the word Vest' used in the same Section of U.P. Jamindari Abolition and Land Reforms Act was interpreted to mean although the vesting in the State was absolute but the vesting in the Sabha was limited to possession and management. This case illustrates that even a word which is used more than once in sub-section of a section may connote and denote divergent things pending upon the context. Therefore, though on principle the contention of Dr. Rajiv Dhawan, learned senior counsel appearing for the appellant that the word 'person' used in Section 3(1)(a) of the Regulation can be given different meaning in the first part than the meaning to the same word given in the second part of regulation may not be, taken exception, but the question arises whether in the constitutional scheme under which the regulat....
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....statutory receiver, with the duty for its management and administration according to Section 7 requiring maintenance of status quo therein in Sub-section (2) of Section 7 of the Act. Whereas the vesting of the adjacent area other than the disputed area acquired by the Act in the Central Government by virtue of Section 3 of the Act is absolute with the power of management and administration thereof in accordance with Sub-section (1) of Section 7 of the Act till its further vesting in any authority or other body or trustees of any trust in accordance with Section 6 of the Act. The minority view, however, construing Section 3 and 4(1) held that the area includes the whole bundle movable and immovable property under the area specified in the Schedule and all other rights and interests therein or arising thereof and the whole bundle of property and right vests by reason of Section 4(2) in the Central Government free and discharged from all encumbrances and held the Act to be unconstitutional as the provisions of Section 3, 4 and 8 were held to be invalid. The majority view of the Court expressed through Verma, J. held that a construction which a language of the statute can bear and prom....
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....Schedule V of the Constitution. In the aforesaid P.R. Reddy's case (supra) the Court also took note of the earlier case in Manchegowda and Ors. v. State of Karnataka and Ors. where constitutional validity of a similar provision in respect of tribal area of Karnataka was under challenge and the Court upheld the constitutionality with an eye to preserve and protect the tribals in the land in the tribal areas. But in none of the aforesaid cases the question of power of the government to transfer the government land had come up for consideration. The Constitutional scheme embodied in Article 15(4) and Article 46 as well as the power conferred upon the Governor of the State under Schedule V of the Constitution are intended to preserve and protect the interest of the tribal in the tribal areas. It cannot be said by any stretch of imagination that all lands within the tribal areas vest in the tribal people. State is the paramount owner of lands and in the garb of preventing the exploitation of tribals from the non-tribals so far as the lands belonging to the tribals are concerned, the State cannot be denuded of its power to exploit resources which vest with the State. Judged from this ....
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.... object of the Act was to abolish big landed estate and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the land-owners in them and vesting such rights in the tenants and that being the object of the legislature it is hardly likely that it would make any discrimination between the State and the Citizens in the matter of the application of the Act. The ratio of all the aforesaid cases can be summed up thus : though ordinarily a particular word used in a statute should be given the same meaning but it is permissible to construe the said word differently depending upon the object of the Act and the scheme of the Act and the purpose sought to be achieved by Act. Coming now to the core question of interpretation of the word 'person' in Regulation 3(1)(a) under the Amended Act if word 'person' used in Section 3(1)(a) is interpreted to mean to include the State then the expression 'whether or not such a person is a member of a Scheduled Tribe becomes meaningless as the State can never be a member of the Scheduled Tribe. If a literal meaning to the word 'person' is given in Section 3(1)(a) of the regulation then the prohibitions on restrictions cont....
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....n should have its natural meaning throughout the Section to mean 'natural person' and it does not include the State. In other words, the State is not denuded of its power in the matter of exploiting its mineral resources within the scheduled area by a grant or renewal of lease even in favour of non-tribal persons and the restrictions and embargo contained in Regulation 3(1)(a) is not applicable to the State in dealing with the land belonging to the State. In this view of the matters, it must be held that the provisions of the Regulation have not been contravened by granting mining leases in favour of the Non-Scheduled Tribe person within the Schedule Area. Notwithstanding my conclusion that the word 'person' occuring in Section 3(1) of the Regulation does not include 'State' and as such the mining leases granted in favour of different persons do not contravene the provisions of the Regulation but I am inclined to agree with the observations made by Brother Ramaswamy, J. that the lessees should be required to spend a part of the profit for the upliftment of the tribals and for maintaining the ecology in the scheduled areas. Notwithstanding the constitutional obligation of the ....
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.... for the time being in force in a State" no State Government except with the prior approval of the Central Government can direct that any forest land or any purposes. Explanation to Section 2 provides the meaning of the expression 'non-forest purpose'. Clause (b) of the said Explanation stipulates that any purpose other than re- afforestation would be a non-forest purpose. This being the position and mining activity being admittedly a non-forest purpose, the land in question could not have been permitted to be used for such non-forest purpose without the prior approval of the Central Government as required by Section 2 of the Conservation Act. The High Court according to the learned Counsel, committed serious error in coming to the conclusion that the Conservation Act applies only to the reserved forests. Dr. Dhawan contended that the word 'forest' must be given a wider meaning and should include all forests commonly known as forest and, therefore, even if the area on which mining activities are carried on by the respondent do not form a part of reserved forests in asmuchas no notification under Section 20 of the Indian Forest Act has been issued but all the same the provisions of ....
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.... question relating to protection and conservation of the forests throughout the country was considered by this Court, the Court observed : "The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance: and therefore, the provisions made therein for the conservation of forest and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof, The word 'forest: must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term 'forest land', occurring in Section 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood ....
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....ot produced any material from which this Court can come to the conclusion that it forms a part of the forest even going by the extended meaning of the term 'forest'. As has been stated earlier while narrating the pleadings of the parties, the private respondents have all along asserted that the mining activities in question and then-leasehold area over which mining activities are continuing do not form a part of the forest. The State Government though has filed an affidavit but no assertion has been made as to whether the mining areas with which we are concerned in these appeals formed a part of the forest land and thereby required the previous approval of the Central Government for being used for mining purpose. On the other hand, the affidavit of the Government indicates that the mining leases in favour of the private respondents have been granted in accordance with the provisions of the Act and the Rules and there has been no contravention of the provisions of the Forest Conservation Act. In this state of affairs even though we are of the considered opinion that the forest land in Section 2 of the Conservation Act would receive an extended meaning to include within its sweep ....
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....osphere and in food chains, growing risks of environmental accidents and threats to life support systems and, therefore, word community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on Human Environment held in Stockholm in June, 1972. though in India there were several legislations for environmental protection but a need for a general legislation became increasingly evident and, therefore, an enactment was passed. At the outset it may be made clear that in the Writ Petition filed before the High Court no complaint has been made with regard to the violation of the provisions of Environment Protection Act in the matter of granting lease or allowing the mining operation to be carried on. In this Court, however, Dr. Dhawan, learned senior counsel appearing for the appellant contended that the large scale mining operations within the tribal area pollutes the environment in the tribal area and, therefore, the Central Government is under a statutory obligation to protect the environment and coordinate the activities of the State Government in the matter of granting mining leases within the tribal area w....
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....usion as to whether allowing the mining operations within the tribal area has resulted in the infringement of the Environment protection Act. It would, therefore, be unnecessary to deal with the decisions cited by Dr. Rajiv Dhawan in support of his contention. The Environment Act consists of four Chapters with 26 Section therein. Chapter-I contains the definitions, Chapter II contains General power of the Central Government, Chapter III contains the prevention, control and abatement of environmental pollution, and Chapter IV contains misc. provisions. Environmental pollution has been defined in Section 2(c) to mean the presence in the environment of any environmental pollutant. "Environmental pollutant" has been defined in Section 2(b) to mean any solid, liquid or gaseous substance present in such concentration as may be, or tend to be injurious to environment. Section 7 prohibits persons carrying on industry from emission or discharge of environmental pollutants in excess of such standards, as may be prescribed. "Prescribed" had been defined in Section 2(g) means prescribed by rules made under this Act. Thus the Rules standard had to be indicated, permissible limit of emission env....
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....ribe, provided that this sub-section shall not apply to an undertaking owned or controlled by the State or Central Government or to a Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964, which is composed of members of Scheduled Tribes. There cannot be any dispute that on and after coming into force Section 11(5) of the MMRD Act no mining leases can be granted or renewed within the Scheduled Area to any person who is not a member of Scheduled Tribe within the State of Andhra Pradesh. The only exception being as contained in the proviso, namely, an undertaking owned or controlled by the State or Central Government or a society registered or deemed to be registered under Andhra Pradesh Co-operative Societies Act which is composed of members of Scheduled Tribes are excluded from the rigours of Sub-section (5) of Section 11. Therefore, after 1991 if any mining lease is granted in favour of any non-Scheduled Tribe person then the said lease would be void being repugnant to Section 11(5) of the Act but the said provision does not affect the subsisting leases and, therefore, the leases in favour of the respondents cannot be said to be....