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TMI Blog1997 (7) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed 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 reserved forest area along with its environs consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apathi 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 March 13, 1986. The lease was executed on Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 reserved forest area or at any rate is a forest are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 diversity of its flora and fauna but also for the richness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh, 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 rich culture with economic status and cohesiveness as compact group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commodities like food grains mostly for sustenance during the lean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arid the Governor General in Council. Montague Chaonsford Report of 1918 sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 declaring specified areas therein to be Scheduled Areas within the States specified in Part 'A' of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 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 Asifabad (a man of toddy-tapping caste) has been cultivating this land. When my father died I was a small child, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand 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 nature of their rights over their lands. Traditionally, the tribals of the area acquired absolute right over the land for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assam Land and Revenue Regulation Act, 1964 was enacted. In Himachal Pradesh, the H.P. Transfer of Land (Regulation) Act, 1968 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded 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 the North-east area now called Sixth Schedule and the rest of the areas covered under Fifth Schedule to the Constitution. The Draft C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibals 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 accepted by the members of the Constituent Assembly without any demur or discussion. The draft Constitution 1948, Clause (6) as original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration 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 area in a State which is for the time being a Scheduled Area. Without prejudice to the above general power, special power has been conferred under Clause (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immovable property by a member of a Scheduled Tribe-- (1)(a) Notwithstanding anything in any enactment, rule or law in force in the Agency tracts any transfer of immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivisional 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-section (1)(a) envisages, with a non obstante clause, that notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feror 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 proceedings under the Regulation. Section 8 gives power to the State Government to make rules. Section 9 provides for repeal of repugnant provisions of the Madras Act 1 of 1917. Section 10 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lienation 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) prohibits grant of patta rights over any land in notified area to a non-tribal; the agent is empowered to cancel such transfer or revise any title of land granted to a non-tribal in any notified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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-tribals who arrived in these areas late in the 19th Century in certain areas and the early 20th Century in certain other areas found the tribals who were in occupation of these lands an easy pray for the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 : while regulating allotment of land under this clause, can the Government exclude itself from the power to allot land to a non-tribal when the object of Article 244(1) read with the Fifth Schedule is to control and main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 whom by law the powers and prerogatives of the government of this realm are vested". In "Jurisprudence" by R. W. M. Dias [Fifth Edition], at page 265, it is stated that"...the value of personifying group activities is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it has never been considered necessary to personify the State. The Crown in its political capacity represents the State in England and can sue in the English courts as a person. In Madras Electric Corporation case (1955 (1) All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 unpaid income of employees of the State of West Virginia, and had the notice served on the defendant. The State auditor, seized the accrued salaries of the Tax papers pursuant to Sections 6331 of the Internal Revenue Code of 1954. The defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Judges of this Court was to consider whether the State of West Bengal, when it was carrying on trade, as owner and occupier of the market at Calcutta, without obtaining the licence, was bound by the Calcutta Municipality Act or, by necessary impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 include "State Government". Property of the State -- how dealt with under the Constitution. Part I of the Constitution of India deals with Union and its territories. Article 1 declares that India, that is Bharat, shall be a Union of States. The Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividually 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 State. Article 295 provides for succession to the property, assets, rights, liabilities and obligations in other cases. Article 298 provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution, 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 money, necessary for their operations. Their internal arrangements, on the other hand, are hardly ever organised or directly interfered with by Parliament, but have been a matter for the royal prerogative. This principle proprio vigore applies to Cabinet form of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 be responsible for their actions. When a Government in office misuses its powers, figuratively, we refer to the individual Minister/ Council of Ministers who are constituents of the Government. The Government acts through its bureaucrats, who shapes its social, eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 injustice and all forms of exploitation. The State is, therefore, a "person" within the constitutional mechanism persona fact is enjoined to elongate the objects of the Constitution. Scope of the power of the Govt. in disposal of its property in Scheduled area and constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specified standard of life and health and personal and social relationship which permit them to develop their full capacities and to promote their well-being in harmony with the needs of their families and the community. Welfare State is a rubicon between unbridled individualism and commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, economic, social and cultural rights and Clause (3) thereof enjoins that "the States should take steps to eliminate obstacles to development. Article 8 enjoins that "the State should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucidly 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 there are some who have immense wealth as against many who live in abject poverty." We cannot afford to have equality in political life and inequality in economic life. How long shall we continue to live this life of contradiction? How long shall we continue to deny equality in our social acid economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complete and worth living, would form part of the right to life. Enjoyment of life and its attainment - social, cultural and intellectual - without which life cannot be meaningful, would embrace the protection and preservation of life guaranteed by Article 21. Right to health and social justice was held to be funda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xposed 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, referable to Article 245 to enact the law relating to scheduled areas. The power to acquire, hold and dispose of the property of the State was wisely left untouched in that behalf. The prohibition contained in Fifth Schedule, therefore, does not affect the power of the State under Article 298 to dispose of its prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 powers and entrusted them to the three wings of the State; in particular the President/Governor of the State is to exercise the executive power in their individual discretion. It is not subject to legislative limitations to be done in accordance with rules of business. In particular, the President/Governor is entrusted with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit 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 India [I960] 2 SCR 372; Falechand Himmatlal v. State of Maharashtra [1977] 2 SCC 670; State of U.P. v. Hindustan Aluminium Corporation ; K. Ramanathan v. State of Tamil Nadu [1979] 3 SCC 229 . This Court consider the meaning of the word "regulation" in Air India Statutory Corporation etc. v. United Labour Union . Therein, the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 Legislature of Andhra Pradesh has now imposed total prohibition under Mines Act to transfer its lands to the non-tribals. Doubtless that under Article 298, the State exercises its power of disposal for public purpose. When two competing public purposes claim preferential policy decision, option to the State should normally be to elongate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d '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 Section 3(1)(a) would be rendered nugatory if the meaning of the word 'person' is confined or restricted to natural person in Section 3(2)(a). Generic person may be a co-operative society, a shareholder of a company and equally a Government constitutionally capable to hold, acquire and dispose of the property. Therefore, the word 'person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the context of the whole statute relying upon Reserve Bank of India v. Peerless General Finance and-Investment Co. Ltd. and C.E.S.C. Ltd. v. Subhash Chandra Bose He further contends that in view of the object, the word may be read broadly, in the light of public purpose and social and economic justice which the Regulation seeks to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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) gives power to the Governor to regulate by law or to repeal or amend any Act of Parliament or of the Legislature of the State or any existing law in relation to that area. The purpose, thereby, is to prevent exploitation of tribals by non-tribals. The State Government is not expected to exploit the tribals. The Fifth Schedule does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution 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 with the tribals. Even the Government land should increasingly get allotted to them individually and collectively through registered Co-operative Societies or agricultural/ farming Co-operative Societies composed solely of the tribals and would be managed by them alone with the facilities and opportunities provided to them by the Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal 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 integrity of the scheduled areas and ensuring distributive justice as an integral scheme thereof. Clauses (a) and (c) of sub-para (2) of para 5 of the Fifth Schedule prohibits transfers inter vivos between tribals and non-tribal natural persons and prevents money-lenders to exploit the tribals. Clause (b) intends to regulate allotment of land not only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 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 person in the generic sense, including the Corporation aggregate or Corporation sole. State, Corporation, partnership firm, a company, any person with corporate veil or persons of all hues, either as transferor or transferee so that the word 'regulate' in para 5(2)(b) of the Fifth Schedule in relation to the land in scheduled areas would be applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 welfare society under rule of law though it is a long march, but during the journey to the fulfilment of goal every State action including interpretation whenever taken must be directed and must be so interpreted as to take the society towards establishing egalitarian socialist State, the goal. It was, therefore, held that "it. therefore, appears to be well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 society are owned by the State as a whole and are used for the benefit of all, for ensuring all basic human rights to every member of the society and not for the profit of a few. By human rights is meant -- all economic, political, social and cultural rights which are necessary for an individual to realise his full potential. In a socialist society, social, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res 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 and public interest, it permits private enterprise in economic activity and makes for a mixed economy rather than a completely socialised economy. It abhors violence and class war and hierarchical class structure and pins as faith on non-violence, sacrifice and dedication to the service of the poor and as a natural consequence, its implementation is envisaged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their collective ownership and disinterested administration for the common benefit. This idea of socialism involves not only the socialisation of the essential instruments of production, in the widest sense, but also the abolition of private income which allow some men to live without rendering or having rendered any kind of useful service to their fellowmen and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic 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 equality before the taw, would most certainly advance the (sic) egalitarian principle and desirable constitutional goal of social and economic justice for all. If the law was aimed at the broader egalitarianism of the Directive Principles, Article 31C protected the law from needless, unending and rancorous debate on the question whether the law contravened Article 14's concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 establish the contra. It also prohibits transfer of the land in any form known to law and declared such transfer as void except by way of testamentary disposition by a tribal to his kith and kin/tribal or by partition among them. The regulation and its predecessor law in operation in the respective areas regulate transfer between a tribal and non-tribal with prior permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, legislative and executive policy. The further contention that there is no need for its incorporation and that the Government would be prohibited from transferring for public purpose, is untenable. They do not detract from legal reasoning and purposive interpretation. The transfer of such land for a public purpose. viz. to construct a hospital or to set up a bank by the Government or its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, 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 be cognizant to the constitutional duly to protect and empower the tribals. Therefore, the Court is required to give effect to the constitutional mandate and legislative policy of total prohibition on the transfer of the land in Scheduled area to non-tribals. Right to health has been declared to be a fundamental right in CERC Case 1995 AIR SCW 759 right to education is a fundamental right u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blishment 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/industry/ licensee/lessee concerned so that the constitutional objectives of social, economic and human resource empowerment of the tribals could be achieved and peace and good government is achieved in Scheduled Areas. We have not examined the other Acts in detail but as and when such need arises, they may be examined in the light of the language used therein and the law. Mining Lease of Government land is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 14 villages with five enclosures were notified as Borra reserved forest in GOMs No. 2997 F & A dated October 31 1,1966, they stood excluded from reserved forest area. Therefore, the lands in the enclosures being cultivated by the tribals are their patta lands and are entitled to get pattas by the concerned officers. It is conceded on behalf of the respondents that the Government have no power to grant mining leases for these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaring 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 comprehensive Dictionary (International Edn.) at page 495,' forest' has been defined as "a large tract of land covered with a natural growth of trees and underbrush, in English Law wild land generally belonging to the crown and kept for the protection of game, of, pertaining to, or inhabiting woods or forest. To overspread or plant with trees; make a forest of". The "forest cover' means "The sum total of vegetation in a forest; more esp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 thereof is amplified to be of non-forest purpose. The object of the F.C. Act is to prevent any further deforestation which causes ecological imbalance and leads to environmental degradation, it is, therefore, necessary for the State Government to obtain prior permission of the Central Government for (1) de-reservation of forest; and (2) the use of forest land for non-forest purpose. The prior approval of the Central Government, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Maintenance of ecology is the primary duty of the State to prevent any further degradation of the ecology and environment and equally is the duty of every citizen. All persons conjointly should allow regeneration of forest as an essential step for healthy life. This Court in Chhetriya Pardushan Mukti Sangarsh Samiti v. State of U.P. and Subhash Kumar v. State of Bihar , had held that the protection to environment is the duty of the State. In Sachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 in the matter of environment' and ecology. The same new was taken by Andhra Pradesh High Court in M/s. Colorock Pvt. Ltd. Vijayawada v. The Director of Mines & Geology,' Government of A.P. (1983) 3 Andh LT 39; M/s. Anupama Minerals v. Union of India ; M/s. Yashwant Stone Works v. State of U.P. ; Upendra Jha v. State of Bihar ; and Ambalal Manibhai Patel v. State of Gujarat 1986 (27) 2 Guj LR 1073. It is well settled law that mining opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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, the matter may be placed before a Cabinet Sub-Committee consisting of Minister, Minister for Industries, Minister for Forests and Minister of Tribal Welfare to examine the issue whether licences could be allowed to continue until they expire by efflux of time or whether is expedient to prohibit further mining operations in the light of Section 11(5) of the Mining Act, to take appropriate action in that behalf and submit report to this Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds 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 isolated the tribals from people living on the plains. On account of their isolation, they remained illiterate, uneducated, unsophisticated, poor and destitute and developed their own society where they allowed themselves to be governed by their own primitive and customary laws and rituals. Successive Governments who ruled India from medieval times to modern times (British Period) allowed these tribals and aboriginals to live in complete isolation and allowed them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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." 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. At first individual laws were enacted, applicable to particular areas, which, among other things, prescribed simple and elastic forms of judicial administrative procedures. The Scheduled Districts Act, enacted in 1874, appears to have been the first measure adopted to deal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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 co-ordination of activity and adequate funds were required. On the other hand, the typically backward tract was deficit area and "no provincial legislature (was) likely to possess either the will or the means to devote special attention to its particular requirements." In these circumstances the Commission recommended that the responsibility for the Backward Classes would be adequately discharged only if it was entrusted to the center. It was recognized that it would not be a practicable arra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 meeting of the Assembly, was to contain due representation of all the interests affected; and one of its functions was to report to the Constituent Assembly on a scheme for the administration of tribal and excluded areas at its meeting on February 27, 1947, the Advisory Committee set up three sub-committees -- one to consider the tribal and excluded and partially excluded areas in Assam; one to consider the tribal areas in the North-West Frontier Province and Baluchistan; and the third sub-committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jor 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 Sambalpur in Bihar and Angul in Orissa need no longer be treated differently from the regularly administered areas, there were other areas which needed a simplified type of administration to protect the aboriginal people from exposure to the complicated machinery of the ordinary law Courts and save them from the clutches of the money-lender who took advantage of their simplicity and illiteracy, deprived them of their agricultural land, and reduced them to a stale of virtual serfdom. The general position, acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bound to accept the advice of the council on laws relating to other matters. The State Government was also empowered to make regulations applicable to a scheduled area after consulting the council. As in the case of Hast Punjab and the United Provinces, such regulations would make provision for the trial of offences other than those punishable with death, transportation for life or imprisonment for five years or more: such regulations could also provide for the trial of disputes "other than those arising out of any such law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incial 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 prohibited from allotting the Slate land in the scheduled area to non-tribal except in accordance with the Rules which may be made by the Governor after consulting the Tribes Advisory Council. The Draft Fifth Schedule prepared by the Drafting Committee with regard to Articles 189(a) and 190(1) which related to the administration and control of Scheduled Area and Scheduled Tribes consisted of several parts. Part I contained the general provision that the executive power of a State specified in Part I of the First Schedule shall extend to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any person who is not a member of the Scheduled Tribes; (2) No land in a scheduled area vested in the State within 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. Part III was applicable to the State of United Provinces (now known as Uttar Pradesh). Para 12 provided as under: (2) The Governor may also make regulations so as to prohibit the transfer of any land in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contained in sub-para (1) of para 5 in Part II of the Fifth Schedule and has made the following comments: Under Section 92(1) of the Government of India Act, 1935 no Act of the Federal or Provincial Legislature applies to a partially excluded area unless the appropriate Provincial Government so directs by a notification. The plan followed in the Draft Constitution of India is, however, fundamentally different. The idea underlying paragraph 5(1) of Part II of the Fifth Schedule to the Draft Constitution is that as soon as an Act of the Federal or the Provincial Legislature is passed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 provisions of the Government of India Act, 1935, under which no Act of the Central or a Provincial Legislature applies to an excluded or a partially excluded area unless the Governor by a public notification so directs, is adopted; for, if in such case it is essential that an Act of the Central or a Provincial Legislature should apply to any such area along with other areas on the date when it becomes law after it has been assented to, there is bound to be some time lag between the passing of the Act and the decision of the Governor that the Act shall apply to such area or that in its applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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-paragraph (2) of paragraph 5 is not restricted only to matters on which the State Legislature will be competent to legislate. The expression "with respect to any matter not provided for by any law for the time being in force in such area" in sub-paragraph (2) of paragraph 5 and the use of the expression "appropriate legislature" in sub-paragraph (4) of that paragraph make it clear that the power to make regulations under sub-paragraph (2) of that paragraph is not restricted only to matters with respect to which the Legislature of the Stale is competent to legislate. Any further clarification is hardly neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transfer any land in a scheduled area to 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. PARAGRAPH 12 K. Santhanam : That in paragraph 12(2) of Part III of the Fifth Schedule, after the words "so as to prohibit" the words "or regulate" be inserted. Note: Sub-paragraph (2) of paragraph 12 follows the recommendation of the Excluded Areas Sub-Committee as adopted by the Advisory Committee. This amendment may, however, be accepted. Decision of the Drafting Committee, October, 1948 : The Drafting Committee decided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Governor or the Ruler making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council. Before the Fifth Schedule was finally adopted by the Constituent Assembly, there was debate in the Assembly on every Clause of the Schedule. It will be useful, at this stage, to reproduce some passages from the Constituent Assembly Debate as under: [Shri Yudhisthir Mishra] The special purpose for moving this amendment is that there are areas in Orissa and the C. P. States which may not be specified as scheduled areas but there are certain Scheduled Tribes among which certain kinds of land laws are prevalent. For example, in C.P. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the tribal people and if they have no land, the landless tribal people should have the first priority.... The above portions have been extracted from the Constituent Assembly Debates to indicate the mood of the representatives of the people and the urgency they felt in protecting the land of the tribals and need for prohibiting transfer of land in the scheduled areas to non-tribals by the State "Government. Para 5(2) of the Fifth Schedule, as finally adopted and engrafted in the Constitution, provided as under: 5(2). The Governor or Rajpramukh, as the case may be, may make regulations for the peace and good Government of any area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 allot its land to the non-tribals in the scheduled areas as all the members were conscious of the fact that the special privileges and special status enjoyed by the tribals should not be disturbed by allowing non-tribals to enter into that area. The protective measures adopted through legislation for the preservation of tribal life, for the prevention of exploitation of tribals by non-tribals and money-lenders and to seal infiltration of non-tribals in the Agency Tracts or Scheduled Areas rested on three main planks: (a) Prohibition of transfer of land by tribal to a non-tribal with the stipulation that such transfer will be null and void. (b) Prohibiting Government from allotting land vested in it to non-tribal. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 exercised a legislative power. So also when the Governor makes Regulations in exercise of power under para 5(2) of the Fifth Schedule, which is equivalent to Section 92 of the Government of India Act, 1935 and repeals or amends any Act of Parliament or State Legislature, he exercises legislative power as the principle laid down in Chhaturam's case (supra) which was followed in Jatindra Nath Gupta v. Province of Bihar be applicable to this situation also. The Governor has also been given the legislative power to make Regulations for the "PEACE AND GOOD GOVERNMENT" of any area in a State which is a scheduled area. The word "PEACE AND GOOD GOVERNMENT" are the words of very wide import and give wide discretion to the Governor to make laws for such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 belonging to the Scheduled Tribe is not willing to purchase the land or is not willing to purchase the land on the terms offered to him, such person may apply to the Agent or the Agency Divisional Officer or any other Prescribed Officer (who are defined in Para 2(b) and (c) of the Regulations) for the acquisition of such land by the State Government. The Agent or the Agency Divisional Officer or the Prescribed Officer, as the case may be, shall then take over the land on payment of compensation in accordance with the principles specified in Section 10 of the Andhra Pradesh (Ceiling on Agricultural Holdings) Act, 1961. The land shall then vest, free from all encumbrances, in the State Government which shall dispose of the land in the favour of members of the Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pradesh Co-operative Societies Act, 1964. Clause 5 provides that no immovable property situate in the Agency Tracts and owned by a member of the Scheduled Tribe shall be liable to be attached and sold in the execution of money decree. Clause 6 creates certain offences and prescribes the penalties therefore. For example, if a person acquires any immovable property in contravention of any provision of the Regulations or continues in possession of such property after a decree for ejectment is passed, he will be prosecuted and sentenced to imprisonment for a term which may extend to one year. These Regulations indicate a departure from the normal laws relating to immovable property. Normally, an owner of a immovable property is free to transfer his property to anyone he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 prohibition contained in Para 3(1)(a) that no person, whether he is a member of the Scheduled Tribe or not, shall transfer his immovable property to a non-tribal must, therefore, in its scope, cover the Government, as we'll, which, if it possesses land in the Agency Tracts, cannot transfer it either by sale, allotment, lease or otherwise to a non-tribal. To this limited extent, it has to be treated as a "person" within the meaning of Clause 3(1)(a) of the Regulations. It is contended by the learned Counsel for the respondent that where the property is acquired By the Government on payment of compensation or it becomes the property at the disposal of the Government, such property, undoubtedly, has to be disposed of in favour of the member of the Scheduled Tribe or a Co-operative Society of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constraint to deal with the property situated in the Agency Tracts only in the manner indicated above, cannot itself act beyond the scope of the Regulations by saying that it is free to dispose of its own properties in any manner it likes. If the " Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer. On account of this disqualification, the Government cannot, even if it is not a "person" within the meaning of Para 3(1)(a), transfer, let out or allot its land or other immovable property to a non-tribal. These Regulations have been made to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Samatha arising out of SLP(G) Nos. 17080-81 of 1995 deserve to be allowed and are hereby allowed while the other appeal arising out of SLP(C) No. 21457 of 1993 is dismissed. G.B. Pattanaik, J. (Minority view) Leave granted. These two appeals by special leave are directed against the judgment of the Andhra Pradesh High Court dated 28.4.95 dismissing the two Writ Petitions filed by the present appellant which were registered as Writ Petition Nos. 9513 of 1993 and 7725 of 1994, by a common judgment. The appellant, a Rural Development Society of Peda Mallapuram, Sankhavaram Mandap in the State of Andhra Pradesh filed the two Writ Petitions as Public Interest Litigation seeking issuance of writ of mandamus to terminate the mining leases in Borra Gram Panchayat area of Anantagiri Mandal which had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 respondent No. 13 before the High Court also filed a counter-affidavit adopting the stand taken by respondent No. 2. The said respondent No. 13 was a transferee from the original lessee. The other lessee-respondents also filed affidavits adopting the stand taken by respondent No. 13. The High Court by the impugned judgment came to the conclusion that the word 'person' in Section 3(1) of the Regulation does not include the Government and as such the government is not prohibited from transferring the government land in favour of non-tribals within the scheduled area. According to the High Court this conclusion is irresistible from the fact that in order to prohibit grant of mining lease in favour of the non-tribals within the scheduled area Section 11(5) of the MMRD Act was introduced in the year 1991. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 schemes of the Government and creating awareness among tribal people of their rights and duties and protection of ecological balance and imparting of environmental education in the tribal area. The society operates in the Borra reserved forest area which was a part of the domain of Raja of Jaipur before independence. Within the forest area the tribal villagers occupy the land for cultivation and there are about 230 families settled in 14 villages occupying 436 acres within the enclosures which are threatened of eviction by the mining operators. It may be noticed that this assertion was not there in the Writ Petition filed before Andhra Pradesh High Court. The further assertion of facts in this Court is that within Anantgiri Mandal there are 230 families of tribals and they occupy roughly 800 acres and yet they are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 absence of such factual matrix it is not possible to hold that there has been violation of Section 2 of the Conservation Act. It has also been averred by the respondent that the leases do not destroy the ecological balance and do not disturb the flora and fauna and the Government has granted the mining leases only after complying with the statutory requirements. On the question of interpretation of the provisions of the Regulation it has been stated that the word 'person' in Section 3(1) does not include the Government and therefore, the provisions of the Regulation have no application to the Government land. In paragraph 20 of the counter-affidavit it has been reiterated: There is no averment by the petitioner that this respondent has been in possession of any forest area or the area earmarked for the reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled 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 to which mine continues to be operative and which is not operative as on the date of the affidavit. Dr. Dhawan, the learned senior counsel appearing for the appellant contended that the history of the tribal areas traced from the administration under the British rule to the inclusion of Schedule V in the Constitution conferring a special power on the Governor to frame Regulation for peace and good government in the area would clearly indicate that there should not be any allotment of land to the non-tribals within the tribal area, be it the government land or land belonging to the tribals, which in turn would accord responsibility to the tribals for the economic development of the area. According to the learned senior counsel one of the purposes for which Schedule V was engrafted in the Constitution conferring po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 hazardous to human health this Court should compel the Union Government to perform its statutory obligation. So far as the prohibition under Section 11(5) of MMRD Act is concerned, it is contended by Dr. Dhawan, learned senior counsel appearing for the appellant that Section 11(5) in the MMRD Act is merely in the nature of clarification to the provisions of Section 3(1)(a) of the Regulation and in view of such provision the mining activities after coming into force of the aforesaid provision cannot be permitted to be continued. Let me now examine the contentions raised to find out, how many of them would be sustainable. Administration of Tribal areas under the British Rule and the debates in the Constituent Assembly in relation to Administration of Tribal Area, leading to engraftment of Schedule V in the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded 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 exercise of their ancestral customs. The Simon Commission, however, realised that isolation of these people from the main currents of progress would not be a satisfactory long term solution and, therefore, it would be necessary to educate these people to become self-reliant. As the Provincial Government was not inclined to devote special attention for the upliftment of these tribal people mostly because of the fact that backward tract was a deficit area and in view of the magnitude and complexity of problem the Commission had recommended that the responsibility for the backward classes would be adequately discharged only if it was entrusted to the center. But at the same time, it was also recognised that it would not be a practicable arrangement if centralisation of administrative authority in these areas led to a situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 rights over the lands and, therefore, this Court would be justified in holding that the lands within the entire tribal area belong only to them and the State has no authority or power in respect of the said land. In support of the said contention the learned senior counsel placed reliance on a decision of the Australian Court in the case of Mabo and Ors. v. The State of Queensland reported in Commonwealth Law Reports Vol. 175 (1992) at page 1. The learned senior counsel had argued that what has been held by the High Court of Australia in the aforesaid case, namely, Aborigines had the title to the land and it never got extinguished by annexation by Crown or by the application of common law in Australia, should apply to the lands within the tribal area in India. But, however, at later point of time the learned Counsel did not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory 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 area in the State except under or in accordance with the conditions of a licence with the conditions of a licence issued by an officer authorised in this behalf by the Government of the State and every such direction shall provide that a breach of it shall be an offence, and shall specify the penalty with which it shall be punishable. Clause 9 of Schedule V deals with Governor's power in extending the provision to other areas which is extracted hereunder: 9. Application of Part II to areas other than scheduled areas : (1) The Governor may, at any time by public notification, direct that all or any of the provisions of this Part shall on and from such date as may be specified in the notification apply in relation to any area in the State inhabited by members of any Scheduled Tribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost 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 Constituent Assembly Debates, the Draft Constitution in relation to Schedule V and the final Constitution as it emerged, after amendments were brought about, it appears that it was not the intention of the Constitution Makers to prohibit alienation of the land vested in the State within the scheduled area in favour of a non-Scheduled Tribe person. On the other hand, though it was in paragraph (2) of the Draft Constitution of Schedule V but it stood deleted while bringing the Vth Schedule in its final form. In this view of the matter we are unable to accept the contention of Dr. Rajiv Dhawan, learned senior counsel that the framers of the Constitution intended to prohibit alienation of the government land in favour of non- Scheduled Tribe person within the schedule area which has been engrafted in Vth Schedule of the Constitution. CONSTITUTIONAL MANDA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agination 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 economic order for development of all people and it has become a States' responsibility to create conditions favourable to the realisation of the right to development. In other words it is the State's responsibility to ensure development and eliminate the obstacles to the State development. It is the States' responsibility to eradicate social injustice. It is the State's responsibility to see the upliftment of the tribals within the Scheduled areas. There possibly cannot be any dispute with the proposition that the State should formulate its policies and laws so that the neglected tribals within the Scheduled areas get equal opportunity with their counterparts in the other sophisticated parts of the State and State should be empowered to make laws for protection of these tribals from being exploited by the non-tribals. State should take all effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 during the British rule, were really concerned to save the tribals of the area from being exploited by the non-tribals, after coming into force of the Constitution, similar power was conferred on the Governor to make regulation for achieving the same object, namely, to save the tribals belonging to the scheduled area from the exploitation of non- tribals. Any Regulation framed by the Governor required to be interpreted bearing in mind the aforesaid objective with which the Constitution conferred power on the Governor under the Fifth Schedule. THE ANDHRA PRADESH SCHEDULE AREA LAND TRANSFER REGULATION 1959 - WHETHER REGULATION 3(1) IS CONTRAVENED BY GRANT/RENEWAL OF MINING LEASES IN FAVOUR OF NON-TRIBALS. This Regulation has been framed by the Governor in exercise of power conferred upon him under Paragraph 5(2) of the Fifth Schedule to the Constitution. The ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 be prescribed. (b) the appellate authority may entertain an appeal on sufficient cause being shown after the expiry on the time limit prescribed thereof. After the amendment in 1970 Section 3(1) reads thus: (a) Notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person, whether or not such person is a member of Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of Scheduled tribe or a society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Act 7 of 1964), which is composed solely of members of the Scheduled Tribes. (b) Until the contrary is proved, any immovable property situated in the Agency tracts, and in the possession of a person who is not a me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Dhawan, learned senior counsel appearing for the appellant in this context advanced his argument that the entire object of the Amendment Act of 1970 was to prohibit totally transfer of any land in favour of a non-tribal member within the Agency tract and accordingly the word 'person' in Section 3(1)(a) of the regulation after the amendment would bring within its sweep the State Government though ordinarily the expression 'person' may not bring within its sweep the State Government. According to Mr. Dhawan, learned senior counsel appearing for the appellant the word 'person' must be given the widest interpretation so as to bring within its sweep the State Government which would be consistent with the very object for which the amendment was brought into force so that the integrity of the tribal regime is maintained. On being faced with the difficulties in giving same interpretation to the word 'person' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the government land. According to the learned Counsel Mr. Sudhir Chandra if interpretation as to the word 'person', as, contended by Dr. Rajiv Dhawan, learned senior counsel is accepted then it would lead to absurdity and the provisions of Section 3(1)(a) would be meaningless. The learned Counsel further contended that there is intrinsic evidence in Clause (a) itself to hold that the word 'person' does not include State. Lastly, the learned Counsel urged that bearing in mind the object with which the Constitution has conferred power on the Governor to frame regulation and the object with which the Governor has framed the regulation, there is no imperative to construe the word 'person' in Section 3(1)(a) of the regulation to include the State Government. Such an interpretation according to the learned Counsel for the respondents would go against the concept of upliftment of the tribals within the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Reddy's case (supra) this Court after tracing the history of the Regulation, namely, Andhra Pradesh Scheduled Area Land Transfer Regulation, 1959 (Regulation I of 1959) and the subsequent amendment thereto in the amending Regulation of 1970 came to the conclusion that 1959 Regulation was amended as difficulties were experienced by the Government in implementing the ejectment procedures under the said Regulation, inasmuch as it was not always easy for the concerned authority to ascertain the origin of the right under which the non-tribal is claiming possession and whether the land under possession of a non-tribal was previously acquired from a tribal or not. According to the learned judges the changes effected by the amended Regulation were: (i) A rule of presumption was introduced to the effect that unless the contrary is proved, where a non-tribal is in possession of land in the Scheduled areas, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 the tribal people from transferring their land in favour of non-tribal person so that the tribal people can be saved from being exploited by the sophisticated non-tribals people. This being the objective, there is no necessity to construe the word 'person' in first part of Clause 3(1)(a) of the Regulation to include the State Government also. It is a cardinal rule of construction of statute that the statute must be read as a whole and construction should be put to all the parts together and not of anyone part only by itself. Every clause of a statute is required to be construed with reference to the context and other clauses of the Act so that so far as possible the meaning of the enactment of the whole statute would be consistent. When legislature uses the same word in different parts of the same Section or statute, there is a presumption that the word is used in the same sense throughout. It was so held by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regulation has been framed and the object and purpose for which the regulation has been framed by the Governor, does it warrant to give a different meaning to the same word 'person' in different part of the regulation. It may not be out of place to bear in mind the normal rule that general words in a statute must receive a general construction unless there is some thing in the act itself such as subject matter with which the act is dealing or the context in which the words are used to show the intention of the legislature that they must be given a restrictive or wider meaning. Let us examine some of the authorities cited at the Bar in this regard. In Appiin v. Race Relations Board [1974] 2 All ER 73, the word 'person' was defined to include a local authority in the context in which the word has been construed. In the case of Printers (Mysore) Ltd. and Anr. v. Asstt. Commercial Tax Officer and Ors. (supra) relied upon by Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged 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 promote larger national purpose must be preferred to a strict literal construction tending to promote factionalism and discord. But on examining the provisions of Section 3(1)(a) of the Regulation after its amendment I am unable to persuade myself to interpret the word 'person' used in Section 3(1)(a) of the regulation differently as in my view neither the context in which the word has been used calls for such an interpretation nor the interpretation of giving a literal meaning to the word would lead to any absurdity or unintended result nor even it can be said to be promoting larger national purpose. In P. Rami Reddy's case [1988] Supp. 1 SCR 443, the validity of Section 3(1) of the amended regulation had been assailed and this Court tracing a short history of legislation came to hold that a legislation which in spirit sense and substance aims at restoration of the tribal land which originally belong to the tribals but whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount 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 angle there is no justification for interpreting the word 'person' in the first part of Section 3(1)(a) of the regulation to include State and, therefore, the prohibitions and restrictions contained in the regulation would not apply to the lands belonging to the State. The word 'person' used in the federal statute imposing tax on persons selling liquor came up for consideration in the case of State of Ohio Guy T. Helvering 85 U.S. Supreme Court Reports 78 Law Edition 1307, it was held that the State engaging in the selling spiritual liquors is not immune from the excise tax imposed by the Federal Government on those engaging in such business, since in doing it is not performing any governmental function. It was also held that a State is embraced within the meaning of the term 'person' as used in a statute imposing an excise tax on persons selling liquor and the word person shall be construed to mean and include a partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contained therein would apply with full force to inter se transfer of land between the Scheduled Tribe and non-Scheduled Tribe and such an interpretation would subserve the main object of the legislation, namely, to save the tribal people from being exploited upon by the non-tribal people. If the constitutional scheme embodied in Articles 15(4) and 244 as well as in the Fifth Schedule is intended to save the tribal people from being exploited upon by the non-tribal both in relation to their lands as well as in the matter of taking loans from the moneylenders, there is no obligation to construe the word 'person' to include the State in the first part of Section 3(1)(a) of the regulation. In view of the history of legislation already traced in the earlier part of this judgment, it is crystal clear that the prohibitions and restrictions never intended for the lands belonging to the government and the provisions both prior to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 Governor to make special provision for ameliorating the economic status of the tribal people so as to assimilate them into the national main stream, nothing tangible appears to have been achieved in this regard even after 50 years of independence. The tribal people who constitute a substantial majority of the Indian population still spend their time in jungles and other inexcusable areas and sufficient legislative and executive measure has not been taken for improving the living conditions of these tribal people. Since the mining activities are being carried out mostly within the scheduled areas it is the duty of the State to see that a part of the profits earned by the lessees should be spent for ameliorating the living conditions of the tribals by the lessees themselves. It is in this context brother Ramaswamy, J. has made some observations at pages 141 and 142 of the judgment which have my general concurrence but the said ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the Forest (Conservation) Act would become applicable. The Conservation Act was further amended by Act 69 of 1988 with Presidential assent on 17.10.1988 and was published in the Gazette of India on 19.12.1988. By way of amendment Clause (3) was inserted to Section (2) which reads thus: (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; Dr. Dhawan, the learned Counsel contended that in view of the aforesaid provision no lease could be granted or renewed after 19.12.1988 in favour of any authority without the prior approval of the Central Government. Consequently the impugned leases must be held to be invalid as having contravened the provisions of Section 2 of the Conservation Act. The High Court in the impugned judgment, however, proceeded on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 irrespective of the ownership or classification thereof." The Court also in the aforesaid case gave a general direction to the following effect: "In view of the meaning of the word 'forest' in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any 'forest'. In accordance with Section 2 of the Act all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion 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 an extensive track of land covered with trees, shrubs, vegetation and undergrowth under mingled with trees with pastures, be it of natural growth or man made forestation, yet unless and until it is so determined by the State Government that the mining activities of the respondents are being carried on over forest land it will not be possible to hold that the provisions of Section 2 of the Conservation Act gets attracted. In this view of the matter, the only possible direction which this Court can issue in the facts and circumstances of the present case is that the State of Andhra Pradesh through its officers of the Forest Department should immediately inspect the mining areas of the private respondents and find out whether the lands covered under the mining leases in question form a part of the forest land and if it comes to the conclusion that it is part and parcel of the forest land and no prior approval of the Central Government has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronment 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 which must be subject to the provisions of the Environment Protection Act. And since no steps have been taken by the State Government in this regard, the leases must be held to be invalid. According to Dr. Rajiv Dhawan, learned senior counsel when several industries have been closed down by this Court on the ground that the existence of such industries are hazardous to human life and thereby violates Article 21 of the Constitution, the mining leases within the tribal areas must also be annulled. As the mining activities pollutes the tribal atmosphere, natural flora and fauna of the area and becomes hazardous to the human life within the tribal area, the said activities must be stopped. In support of this contention the learned Counsel placed reliance on the decisions of this Court in the case of Tarun Bharat Sangh, Alwar v. Union of India and Ors. [1992] Supp (2) SCC 448, Subhash Kumar v. State of Bihar and Ors. . Mr. Sudhir Chandra appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nmental 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 environmental pollutant has to be indicated. Section 8 deals with the embargo on handling of hazardous substances. Section 19 confers power on the persons empowered by the Central Government to enter and inspect any of the premises for the purposes enumerated under Clauses (a) to (c) of Sub-section (1) of Section 10. Section 15 provides the penalty for contravention of the provisions of the Act and the rules made thereunder. Section 19 confers power on the Court to take cognizance of any offence on a complaint being made on that behalf. Section 24 is the overriding provisions of the Act notwithstanding any thing inconsistent therewith contained in any enactment. The combined reading of the aforesaid provisions indicate that there must be necessary particulars to find out whether there has been any emission of the environmental pollutant in excess of the standard fixed under the rules and it is only then the question of complaining before a court an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uled 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 invalid on the ground of infraction of Section 11(5) of the MMRD Act. The provisions is prospective in operation and would be applicable to any or renewal of a lease subsequent to the enactment of Section 11(5) of the MMRD Act. The leases of the respondents being prior to the aforesaid enactment these are not hit the said provisions and therefore, Dr. Dhawan's contention on this score cannot be sustained. My conclusions on different questions, as discussed above, are summed up as under: 1. Under the British rule though steps had been taken to make provision for special administration of the tribal areas but there had been no prohibition for transfer of government land in favour of a non-tribal within the scheduled area. 2. Under different laws and regulations operating in different tribal areas prior to coming into force of the Constitution there was restriction in relation to transfer of lands belonging to the tribals in favour of a non-tribal with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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